HOW THE WHEELS OF JUS­TICE (DON’T) TURN

India Today - - UPFRONT - By Arvind Datar The writer is a se­nior ad­vo­cate prac­tis­ing in the Supreme Court

In his 27th book, Arun Shourie starts with the al­most un­be­liev­able story of his wife, Anita, be­ing is­sued an ar­rest war­rant for evad­ing sum­mons that had never been served on her, in a case per­tain­ing to an il­le­gal farm­house that she never built. In the next 12 chap­ters, with char­ac­ter­is­tic at­ten­tion to de­tail, Shourie writes about sev­eral con­tro­ver­sial le­gal is­sues.

The two chap­ters on Jay­alalithaa’s dis­pro­por­tion­ate as­sets case re­veal the sys­tem­atic man­ner in which the crim­i­nal jus­tice sys­tem was abused and the case pro­longed for al­most 20 years. All im­por­tant is­sues that were con­sid­ered prop­erly by the trial court and shock­ingly by the high court have been summed up by Shourie in a man­ner that can be a mat­ter of envy for any lawyer.

Shourie rightly crit­i­cises the ju­di­ciary for step­ping out­side its do­main and the re­sul­tant col­lat­eral da­m­age that pub­lic in­ter­est lit­i­ga­tion can some­times cause. For ex­am­ple, the ban on the sale of liquor within 500 me­tres of a high­way caused havoc be­cause the Supreme Court failed to re­alise that sev­eral roads in the heart of met­ro­pol­i­tan cities have been no­ti­fied as ‘high­ways’. Fur­ther, the re­gret­table episode that re­sulted in Jus­tice C.S. Kar­nan be­ing sent to jail and, in con­trast, the fail­ure to promptly bring to book a cor­rupt high court woman judge ex­pose the in­con­sis­tent man­ner in which judges treat ju­di­cial mis­de­meanour and cor­rup­tion within the ju­di­ciary.

The strange and in­ex­pli­ca­ble events that led to the mys­te­ri­ous death of Jus­tice B.H. Loya were writ­ten be­fore the Supreme Court closed the case and pro­hib­ited any fur­ther in­ves­ti­ga­tion. But the de­tails given by Shourie cast se­ri­ous doubt on whether Jus­tice Loya’s death was due to nat­u­ral causes. In ret­ro­spect, it would have been bet­ter if the Supreme Court had or­dered an im­par­tial in­quiry be­cause so many ques­tions re­main unan­swered.

The ex­ces­sive ver­biage and pompous prose that some judges use in a pa­thetic at­tempt to pa­rade their learn­ing has also been crit­i­cised by the au­thor and these pro­vide the lighter mo­ments in this very se­ri­ous book. Shourie, for in­stance, writes about a zo­o­log­i­cal dis­cov­ery made by a Ra­jasthan High Court judge that pea­cocks are celi­bate and “it is by drink­ing the tears of a pea­cock that the pea­hen be­comes preg­nant”! The world knows oral con­tra­cep­tion but only In­dia knows oral con­cep­tion.

De­spite crit­i­cism, the ju­di­ciary is the only in­sti­tu­tion that has pre­vented In­dia from de­gen­er­at­ing into a dic­ta­tor­ship. Our courts have re­peat­edly pro­tected hu­man rights, re­leased thou­sands of un­der­tri­als, pre­vented large-scale da­m­age to the en­vi­ron­ment, and el­e­vated pri­vacy to the sta­tus of a fun­da­men­tal right.

The sub-ti­tle of the book is: “What are our courts do­ing? What should we do about them?” How­ever there are only a few pages on what should be done to change the cur­rent sce­nario. It is im­por­tant and im­per­a­tive that the leg­is­la­ture, the ex­ec­u­tive and the ju­di­ciary stop work­ing at cross-pur­poses and for­mu­late a sys­tem­atic plan to pre­vent fur­ther ero­sion in the cred­i­bil­ity of our courts. This book can be the start­ing point for for­mu­lat­ing such a plan.

This book can be the start­ing point to for­mu­late a plan to pre­vent fur­ther ero­sion in the cred­i­bil­ity of our courts

HarperColl­ins Pub­lish­ers In­dia

Anita Gets Bail pages

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