The judiciary has been the one sturdy dyke that has saved us from the excesses of rulers. But recent events remind us of the cracks that have formed: the quality of individuals apart, even the institutional arrangements that had been put in place to preserve the purity and independence of the institution the collegium, conventions governing the way cases are to be assigned among judges have frayed. These cracks provide a dangerous opportunity to political rulers to suborn this institution also. Through actual cases and judgments of subordinate courts, High Courts, the Supreme Court Arun Shourie enables us to see how frail and vulnerable this last pillar standing has become. A judge who by a brazen manipulation of facts lets a prominent politician off ... Events and a judgment that let the convicted choose the prosecutor who is to conduct the case against them ... Courts that turn a blind eye to life-and-death reforms even as they preoccupy themselves with trivia ... Courts that deliver ringing judgments and then do not care to look if their directions are being implemented ... Courts that disregard their own judgments on penalizing persons for perjury, for dragging out cases ... Courts that do not think through the consequences, even the predictable consequences of their judgments ... Judges who prevaricate, who look the other way when some of their own fraternity come under a cloud ... A judge who is manifestly unbalanced, judges whose knowledge of the most elementary facts of science is laughable, a judge whose prose even the Supreme Court is unable to comprehend all of them continue to hand down rulings that affect the fortunes and lives of thousands ... Judges who disregard well-settled principles to such an extent that their colleagues are compelled to make their grave misgivings public... And the non-bailable warrants that are issued for the arrest of Anita, Arun Shourie s ailing wife, for evading summons that were never served, summons that were ostensibly issued for their having built a house that was never built, on a plot they did not own... Through the meticulous examination that is a hallmark of his writing, Arun Shourie leads us through judgments and instances some hilarious, so many infuriating and points to things that each of us judges, lawyers, laypersons like us can do to retrieve this most vital of institutions

Responsibility: Arun Shourie.

Table of contents:

For a house we never built on a plot we did not own
Justice done, undone, redone
Prosecutor hunting, and other devices
When courts are compelled to step out of their domain
Adherence?
When one of our own is invovled
Bane hain ahl-e-havas muddai bhi munsif bhi ...
What if he had not written that letter?
Eloquence
And yet I am taken by surprise
So much science
Thinking through
Circumstances, consequences, meta-consequences.

Notes:
Includes bibliographical references and index.

In recent times, we have grown accustomed to believing that the judicial system is in a shambles, or at least dangerously on the verge of collapse. The possible reasons are known: exploding dockets, poor infrastructure, chronic shortage of judges and judicial staff, and a set of procedures that privileges adjournment over disposal. To the public at large, deep suspicions about class bias and corruption in the judiciary, as well as a belief that it is given to pliancy before power, influence and wealth are much larger concerns. At the same time, one cannot ignore the ambivalence in the way our society looks at the judiciary. On the one hand, much of the citizenry looks up to the judiciary as a bulwark against executive excesses and legislative caprice. On the other, the institution is seen as effete and ineffective, and even insensitive to the crying needs of society. Arun Shourie’s latest book demonstrates why, for all its admiration for the judicial institutions, Indian society remains sceptical about the efficacy of the judicial system.

Cracks in the system

Though Shourie begins with his personal experience of the mechanical and inconsiderate ways of the lower courts, he expands his dissection of the ways of the judiciary to cover the major ill afflicting the system. He covers instances of possible judicial corruption, and the failure of the institution to deal impartially with allegations against individuals within it. He also argues with much substance how superior courts hand out ringing judgments that expand the frontiers of the law and further public interest, but fail to ensure that these are implemented on the ground.

The state of the lower courts comes through starkly in the way he narrates the travails of his wife Anita being prosecuted for an alleged environmental law provision. A warrant is put out for her arrest “for evading summons that were never served, summons that were ostensibly issued for their having built a house that was never built, on a plot they did not own.” Unfortunately, she is forced to go through a protracted legal process that goes up to the trial stage. At the fag end of the trial, the court finds no evidence of an offence and acquits her, on grounds that were good enough for discharging her at the pre-trial stage itself. The atmosphere may not be exactly Kafkaesque, but it does raise troubling questions about the functioning of our lower courts.

Valid questions

Shourie transcends the common penchant for discussing ‘sensitive’ (read ‘forbidden’) issues concerning the judiciary only in safe language or hushed tones; he hints at the high probability of judicial corruption behind specific cases, but without making any assumptions of anyone’s culpability. He raises valid questions about the manner in which the suicide note of former Arunachal Pradesh Chief Minister Kalikho Pul and the death of Judge B.H. Loya, in circumstances crying out for an independent probe, was handled by the Supreme Court.

Both the CJI and the judge to be his successor were named in Pul’s 60-page suicide note, in which he alleged that he had been asked for huge sums of money to get the court to decide in his favour. His wife wrote a letter to the Chief Justice for an independent probe, but instead of dealing with it on the administrative side and ordering a police probe, the then Chief Justice treated the letter as a petition and assigned it to a Bench for a judicial hearing. Mrs. Pul withdrew the petition, and instead wanted the next senior-most judges to have a First Information Report registered. Nothing came of this, but Shourie points out that the allegations against the judges still survive, and that the court failed to adopt the prudent course of having an independent inquiry as soon as the note surfaced.

Petitions seeking a probe into Judge Loya’s death had not yet been dismissed when this book went to print, but Shourie takes the reader through the circumstances that indicate a stark link between his death and the fact that he was hearing the Sohrabuddin ‘encounter’ case.

Shourie gives an engaging account of the tactics adopted by the late Jayalalithaa’s lawyers to prolong the disproportionate assets case against her, besides taking the reader through the questionable high court judgment that acquitted her before the Supreme Court restored the trial court’s convictions. There is an entertaining chapter on the ‘eloquence’ of our judges, as they expand the frontiers of language to pad up their reasoning with endlessly repetitive observations.

Distanced from reality

As Shourie bemoans the wide gap between stirring verdicts and the appalling ground situation on various aspects of life, as he laments the inability of judges to speed up justice and their reluctance to impose costs on petitioners who adopt obviously dilatory tactics, he brings out a sense of despair in the reader.

As he deals with judges who pass sweeping orders without adequately thinking through their consequences, Shourie makes an impassioned appeal to courts to consider the wider implications of their orders and observations.

However, in his concluding chapter, the author intriguingly chooses landmark judgments that supported reservations and laid down salutary guidelines for the arrest of citizens for some gratuitous criticism. These instances only advance his personal views but hardly improve his otherwise valid case for society to scrutinise and analyse judgments and constantly strive to make judicial institutions accountable.

Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them?; Arun Shourie, HarperCollins, ₹699