In order to be a good judge, one should always, from time to time, take a step back and look at our judicial system – from the perspective of an outsider, or the litigant. As Walt Whitman in his fascinating poem ‘Song of Myself’ writes :
“I do not ask the wounded person how he feels, I myself become the wounded person.”
Sometimes, one doesn’t need this exercise of emotional telepathy (or in other words, stepping into the litigant’s shoes). Not very often, some one comes up who speaks truth to power. Arun Shourie does this fearlessly through this book, and holds the mirror to us, as a system. Needless to state, it is not a pretty picture that we see. He is unsparing in his criticism of the system, but provides a valuable insight into the problems of the system, which we sometimes overlook (as we are too involved into the system).
Here a few take-aways/main themes/ideas from the book:
1. The First Chapter relates to Arun Shourie’s bed ridden wife – Anita’s case: of her trials and tribulations when she finds herself as an accused in a trial, for having constructed a farm-house in violation of environmental regulations. Actually, there was no farm house and she was finally exonerated from all charges. But this chapter tells the tale of endless adjournments and systemic delays in our system and how they are perceived by the common-man. This is a lesson to work ‘from judging to justicing’.
2.Another chapter provides an incisive deconstruction of the Karnataka High Court’s verdict in Jayalalitha’s disproportionate assets (“DA”) case and a demonstration of its total disregard of established principles. How ‘income’ figures were inflated, and expenses ‘reduced’, thereby justifying Jayalalitha’s assets to be within her known sources of income. Fortunately, the perversity in the HC judgment was undone by the Supreme Court who went onto uphold the brave judgment of the Trial Judge (who had found Jayalalitha guilty of DA) and convicted her. Sadly, the judgment came too late. But the Author merits the system by remarking:
“The wheels of justice grind slow, but they grind exceedingly fine’?
3. There is an elaborate discussion on the dishonourable practice of fixing of prosecutors and investigating officers;
4. A discussion on selective judicial activism and how judiciary should be careful about the causes it takes up and their consequences. The author argues for a Decision Impact Assessment (“DIA”) of court judgments. (See : river interlinking judgment, Suresh Koushal judgment w.r.t 377 of the IPC, etc)
5. A discussion on how the Constitutional Courts, though well-intentioned, in most of its moves, is not a ‘finisher’; how execution of some of its most important decisions has totally been disregarded. Makes one ask a question : Do Courts sometime grandstand and oppose corruption in principle, but without doing anything to change anything on the ground, more often than not? Does it seek to retain a moral high stand, while doing nothing about it on the ground.
6. The vested interest of the powers that be in keeping police weak ,or any grassroots law enforcement system. Shourie discusses the non-implementation of the police reforms and how urgently they are needed. Security of tenure, independence from political masters and separation of law and order functions from investigation, being primary suggestions which would go on to ensure that our police forces are not caged parrots, or flightless ostriches.
7. A great discussion on the appalling conditions of work in the district judiciary, and again, some people’s vested interest in keeping the grass roots judiciary/magistracy weak and on a shore string budget. Shourie calls it “Keeping the Judiciary in the position of a Supplicant”.
8. A severe indictment of the roles played by lawyers, prosecutors and the highest law officers of the land, who routinely resort to legalism and positivism (rather than substantive justice), in order to help a select few.
9. A detailed treatment of a famous judicial corruption case and the judiciary’s failure in addressing it quickly; the author used the metaphor and compares judiciary to a ‘house set up on a hill’, which is not merely looked upto, but looked at, by everyone and the urgent need that it should be set in order, and how judiciary should not hesitate to take action against its own whenever needed and set a strong example and not fall into ‘Oh, he/she is our brother/sister judge syndrome’.
11. The Justice C.S.Karnan Contempt proceedings saga and how it is a severe indictment of ‘judicial appointments’ in our country. How strict safeguards are required to be in-built into the system to ensure that something like this never happens again and the credibility of the system is never undermined. Shourie argues for objectivity in judicial appointments and need for objective/transparent and publicly known criteria for appointment to constitutional courts.
12. The disingenuous ways of the court and resort to legalism/originalism/strict constructionism and downright obfuscation when it seeks to serve certain specific interests. Whenever the legal reasoning is tenuous, the court buries it in flowery language and inelegant metaphor, is what Shourie argues.
13. A detailed treatment of the ‘judgment by thesaurus syndrome’ (see : terrible legal/judgment writing) with which some of our judges suffer. Shourie is extremely unsparing in his criticism of the quality of legal writing these days. He, quite caustically, attributes this to thwarted dreams of being literary stars, a colonial hangover and a sad attempt to get over the inferiority complex of having English as the second or third language, and finally, mistaking abstruseness for genius. Shourie rightly argues that judgments are meant for the common man. Ignorance of law is no excuse. Every man is supposed to know the law, which includes knowledge of law laid down in the judgments; however, the way some judgments are written makes it impossible for even the lawyers and judges to understand, let alone the lay-man. Shourie uses the example of a recent judgment from a HC, which was set aside and remanded back by the SC on the grounds of it being totally un-understandable, directing the judge to write a comprehensible judgment this time.
14. Shourie comes down heavily on the lack of scientific sense in some of our judgments. How some judgments routinely get into areas which may not be scientifically justifiable. Reliance on myths and scriptures also ought to be avoided. Shourie uses the recent Peacock judgment by a High Court, wherein the Court, while deciding a case which could have been decided solely on application of a particular section, digresses into how a peacock conceives immaculately. As to how a peahen becomes pregnant by drinking the tears of a peacock. And how a Peacock is a ‘brahmachari’ and therefore, should not be killed. Almost suggesting that other animals who reproduce sexually and are, therefore, not brahmcharis may be killed with impunity. (This is a real HC judgment believe it or not).
In a similar case concerning cow protection, the Hon’ble Judge – heavily quotes from Lord Krishna (as a source of law) and since Lord Krishna used to love cows a lot, hence, the special treatment and special need for protection. Also, cow urine/ghee/spit has great benefits, the judgment states. Shourie comments that all these observations come in cases which could have been decided on legal principle, and the court ought to avoid quoting scriptures/myths and laying down ‘General gyan’ on the benefits of cow-urine, which not be befitting the judgment of a constitutional court. Personal beliefs ought not to be translated into legal principles is what Shourie argues.
15. The national anthem verdict. Triumph of personal belief over the law. Use of constitutional authority to further personal beliefs. “Patriotism by judicial Fiat”. Shourie also discusses the case of ‘X’ whose phone rang during national anthem, who was prosecuted and was finally granted anticipatory bail on the condition that he hoists national flag everyday and salutes it! (What about the presumption of innocence? And the need to establish guilt at trial?)
All in all, Arun Shourie is rather unsparing in his criticism of the Judicial System of our country; but what he says gives us is : considerable food for thought. A critique should always be kept near, as the scriptures say. If we are irritated by every scrub, how do we expect our mirror to shine. Therefore, in the spirit of open-minded ness one should read this book and try make a difference wherever one can. All in all a good read. We will give this a 4 out of 5 stars. Happy reading!