Making justice work

When it comes to judging the judges, Arun Shourie has the requisite qualities of head and heart to perform this difficult and delicate task. He offers a consummate biopsy of the Indian judicial system in his book Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them?

Shourie narrates the four-year-old proceedings for the violation of an environmental offence his wife, Anita, never committed, and a summons she never received. The majesty of the law is unaffected by the fact that she suffers from Parkinson’s disease and is the mother of a gifted child who is also spastic. It also does not matter that the indefinite adjournment of the case requires Shourie, the primary caregiver, to travel 45 km to the court for each hearing. It is as if Indian and international legislations on human rights, especially those of people living with disabilities remained fairy tales.

The “horrors of the administration of criminal injustice” — as Justice Krishna Iyer used to call it — continue.

But far from being a personal lament, or a condemnation of judicial process, Shourie insists that the judiciary does matter to people at large; all ought to respect it even when laying bare the pathology of justicing and lawyering. Shourie’s general approach counsels that we all must combat what is morally the most unjust.

The good Justices are fully applauded, as is the case with the trial Judge John Michael D’Cunha, who painstakingly read evidence to declare the late Tamil Nadu chief minister Jayalalithaa and her aide Sasikala guilty. Justice CR Kumaraswamy, on the other hand, is offered as a “model of misrepresentation and distortion”, who acquitted both women by “calculations so patently false and absurd as to strain one’s credulity that a High Court (HC) judge could have advanced them”. It took a journey to the Supreme Court (SC) to reinstate the verdict of the district court.

Shourie sadly wonders about the kinds of injustices some Justices can get away with in routine cases below the public radar. He hopes that academic and media vigilance may be reinforced by the vibrancy of social action litigation. He also makes an example of Justices who try to pass off personal fads into law. For instance, Justice Mahesh Sharma (now retired) of the Rajasthan HC wrote a long judgement praising the ‘boons’ of cow urine and dung, which suggested that the cow should be declared a national animal. He even ventured to say that peacocks did not have sex! Sharma cited no sources for the authoritative enunciation and it proved impossible to ascertain. The High Court should expunge such unsubstantiated aspects, as the personal views of judges are not to masquerade as verdicts.

Anita Gets Bail:What Are Our Courts Doing? What Should We Do About Them?Arun ShourieHarperCollinsNon-fiction₹699

On a different note, the itinerary of the national anthem case — from its origins in the Madhya Pradesh HC in 2003 to its travails in the Supreme Court — was a “minor miracle” because in both courts, Justice Dipak Mishra heard the matter. Shourie traces the travails of the SC through which the ‘shall’ , after all, became a matter of mere ‘may’ for the executive and the legislature. He counsels, rightly, that courts should hesitate to “acquire a reputation for being a knight-errant, rushing around hunting for issues on which they can pronounce” — sound advice, not at all a bitter pill to swallow!

On most contentious issues — for example, alleged corruption against the Chief Justice of India and the Loya death case — the reader may find the analysis detailed but still one-sided. Should a Justice against whom allegations of corruption are made not sit, following the rule that no person shall be a judge in one’s own cause? What will happen where most Justices are alleged to be corrupt, as Shanti Bhushan said in a sealed envelope to the Court? Is the Central Bureau of Investigation or a Special Investigation Team always a superior mechanism to an internal enquiry procedure? Should the unfortunate case of the death of a judge, even in a case where judicial officers present at the scene had found nothing suspicious, be referred always to a third-party enquiry? Should such a case be reopened because some mediapersons and lawyers so wish? What evidentiary threshold is required to sustain allegations that a particular judge is regime-biased? What are the precise workable alternatives to the present roster system?

To raise such questions is not to affirm that the king can do no wrong; rather, alternative narratives remain equally eligible as an explanation of troubled events.

Shourie offers a wealth of small practical steps to improve the plight of the judiciary, while also pursuing some big-ticket reforms. For instance, lawyers who seek adjournments too often as well as vexatious litigants should be suitably named and shamed. The judicial inclination to “pronounce and move on” should give way to courts performing a “random check whether its directions are being obeyed or not”. The judiciary must devise ways that ensure “that its good name remains free from taint”, and, above all, we “must always remember institutions come down not so often by the sudden great blows but by corrosion… over decades.”

What Shourie proposes coincides with Justice Mishra’s call for “constitutional renaissance”. A better democratic future ought to be a collective and urgent task: this book, full of wisdom, contributes a great deal towards this.

Upendra Baxi is the Emeritus Professor of Law, University of Warwick

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