Lessons from the courtroom

Print edition : June 22, 2018
The book subjects the judicial system to a rigorous scrutiny and points out what is wrong with it. But the remedy the author offers is not fully convincing.

A thought-provoking and brilliantly written book, Arun Shourie’s Anita Gets Bail makes for painful reading as it holds a mirror to the human condition, focussing attention on deliberately engineered acts of miscarriage of justice happening with frightful frequency. We do not always take note of them, and the media often give only episodic attention to this serious malaise in our body politic. We seem to be unable or unwilling to diagnose the disease and take consequential action. But Shourie, the public intellectual, starting with his personal experience subjects the judicial system to a rigorous scrutiny.

Metaphorically, he takes an MRI of the judicial system as it obtains and points out what is seriously wrong with it. The reader tends to worry whether the judicial system ever stands a chance to being restored to normal health.

The ailing Anita Shourie is summoned to the court as she seeks a bail for an offence she never committed. She is charged with building a house she did not build, on a land that she did not even own. The learned magistrate is told in plain English that Anita is in no position to move about, but the judge would be satisfied only if Anita makes a personal appearance, not once, pleading for bail. At this rate, the same judge might have even insisted on a personal appearance of a person lying in an intensive care unit. The absurdity and the utter cruelty of it is unimaginably atrocious. No wonder, they say that justice is blind. It cannot see the obvious.

The author sums up the lessons to be learnt by ordinary citizens: If possible, do not buy a plot of land or build a house; do not depend on the developer to keep track of the confusing flow of rules and regulations; and do not expect any government office to read what you send them. The author’s elegantly sarcastic conclusion: do admire the system for giving us free lessons in patience.

Chapter 2, aptly titled “Justice done, undone, and redone”, is about the late Jayalalithaa, Chief Minister of Tamil Nadu for 14 years. On becoming Chief Minister in 1991, she announced that she would take as salary only Re.1 a month. Dravida Munnetra Kazhagam president M. Karunanidhi started a case against her when he came to power in 1996. The charge was that she had more assets than can be accounted for by known sources of income.

In 2014, in a judgment that is a model of “meticulous examination of the facts”, the trial judge John Michael D’Cunha, held Jayalalithaa guilty of holding assets in excess of known sources of income. He sentenced her to six years in prison with a fine of Rs.100 crore.

An appeal was filed in the Karnataka High Court where Justice C.R. Kumaraswamy acquitted Jayalalithaa on the specious ground that the assets held by her were only “8.1 per cent” more than her known sources of income.

The Supreme Court had earlier ruled that there could be no punishment unless the excess was more than 10 per cent of the income. Judge Kumaraswamy did considerable violence to facts and figures to reach the conclusion he wanted. Shourie wryly comments: “Innumeracy of that order would not be excused even in a schoolboy.”

The matter went to the Supreme Court, which upheld the judgment of the trial court in 2017. But, Jayalalithaa passed away in December 2016 and Justice Kumaraswamy had retired. It appears that a judge who has deliberately caused miscarriage of justice does not get punished.

Chapter 4, titled “When courts are compelled to step out of their domain”, deals with judicial activism.

The writer explains that the need for such activism arose because the executive or the legislature failed to discharge its functions. Legislators claim that the House alone shall decide on their conduct in the House. The anti-defection law explicitly provides that the Speaker’s decision shall be final. But when Speakers decided in a manifestly partisan manner legislators themselves went to court. Similar is the case with the misuse of the Governor’s office, of which we have witnessed instances, the latest being in Karnataka.

NATIONAL ANTHEM  CASE

But, the judiciary has also intervened in areas outside its domain and wasted a lot of its energy and time. When you attend to matters you should not attend to, you will not have time to attend to matters you should attend to.

The National Anthem being played before the start of a film at a cinema in Chennai. In 2016, the Supreme Court directed that all cinema halls shall play the national anthem before a feature film starts and all present in the hall are obliged to stand up.   -  V. GANESAN

Take the case of showing respect to the national anthem when it is sung or played. In October 2016, there were news reports about a wheelchair-bound paraplegic getting thrashed for not standing up when the anthem was played in a cinema. A petition was filed in the Supreme Court seeking directions on respecting the national anthem. It stated: “Sometimes National Anthem is sung in various circumstances, which are not permissible, and can never be countenanced in law.” It should be noted that nobody wanted to punish the ones who thrashed a paraplegic.

The court heard the petition with some alacrity within days of its filing. The reader might wonder what the urgency was. Obviously, the court gets influenced by the media. Justices Dipak Misra and Amitava Roy heard it. The Attorney General and other advocates argued. The court came out with seven directions.

Three pertained to cinema halls: All cinema halls shall play the National Anthem before a feature film starts and all present in the hall are obliged to stand up; prior to the playing or singing of the anthem the doors shall remain closed to avoid any disturbance that might be tantamount to disrespect of the anthem; and when the anthem is played the flag shall be displayed on the screen.

The author points out that the court implied that even a paraplegic must stand up. The court claimed that its directions “will instil within one, a sense committed patriotism and nationalism”. The reader might note the absence of “of” between “sense” and “committed”. We should all get used to the liberties that the judiciary takes with syntax and grammar, on which the author has more to say.

The court coined an expression, “Constitutional Patriotism”. “Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty-bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible” (emphasis added).

A few questions:

Why national anthem in capitals? What is the meaning of the penultimate sentence? What is the idea that is impermissible?

The readers should urge Shourie to start a Society for the Prevention of Cruelty to the English Language by judges and advocates.

Chapter 9 is devoted to eloquence. The reader is challenged to read aloud a long, badly written passage, with errors galore. This writer failed to complete the reading.

JUDGE'S 'SCIENCE'

Chapter 11, on the approach of judges to science, is hilarious. The chapter titled “So much science” begins thus: “On 29 April 2015, twelve peacocks were found dead in the compound of a primary school in a village in Bundi district of Rajasthan. Autopsy reports revealed that some culprit had laced” the coarse grain fed to the peacock with some poisonous insecticide. A boy of 17 was charged with the crime without any supporting evidence. The lower court rejected his bail application, but directed “the juvenile court to try the case expeditiously”. When the case was heard in the High Court, Justice Mahesh Sharma rejected the bail and wanted to educate the people on the significance of the peacock. “The peacock is the beloved and revered bird of Lord Krishna. The principal attribute of the peacock is that he is a brahmachari, a celibate. It is by drinking the tears of the peacock that the peahen becomes pregnant.” The judge’s insights into zoology are truly original and made the headlines.

The same judge (disposing a case relating to a cow shed in 2017), has given a tutorial on cows. He observed that “Sri Krishna himself brought it to earth on Gauashtami day”. Extolling the virtues of cow’s urine, the judge said, “the cow is a pharmacy” and that its urine conferred 11 boons (“It engenders saatvic wisdom”, “It is a chemical, it stops ageing and destroys diseases”, “It endows strength to the brain and the heart”, and so on.) The judge also expatiated on the boons of ghee made from cow’s milk.

In another instance of judicial excess, the Uttarakhand High Court decreed that the Ganga and the Yamuna are living persons. A man was accused of committing a murder. He feigned illness and was sent to a hospital where two doctors falsely certified that he had a medical condition. The Supreme Court fined the doctors to the tune of Rs.1.4 crore. The court directed that Rs.1.3 crore should be given to the association of lawyers towards medical assistance and for buying three vending machines for dispensing sanitary napkins and three incinerators for the disposal of used sanitary napkins.

Almost as an afterthought, the widow of the murdered man was given Rs.5 lakh, to be put in a fixed deposit, the interest from which would be made available to her. The widow’s name was misspelt in the order, and another order corrected it. Where is justice? The reader will wonder why the judge and the lawyers behaved so despicably and yet got away with it.

The last chapter titled “Circumstances, consequences, meta-consequences” is slightly disappointing to any reader who wants to know how the author wants to improve things. The author is against reservation per se. His main argument that reservation will impair our capacity “to deal with the world changing at lightning speed” is rather unconvincing and implies that he does not care about the need to set right the injustice that has gone on for centuries.

Listing a number of procedural requirements for complying with Articles 21 and 22 ordered by the Supreme Court, the author conducts a thought experiment involving the arrest of a terrorist in Kashmir and concludes that the Supreme Court failed to figure out the “consequences and meta-consequences” of its orders. The author’s argument is unconvincing as it is known that the Supreme Court has handed down judgments relating to Kashmir recognising the special conditions there.

LAWYER'S DISEASE

The author has correctly drawn attention to the prevailing “lawyer’s disease”. The lawyer does not recognise that he is also an officer of the court and as such obliged to assist the court in finding out the truth and delivering justice. The rich who commit atrocities get the best lawyers and often go scot-free by outwitting the system. The author does not say that students of law should be sensitised on this part of their obligation.

Shourie has listed and dealt with many cases of miscarriage of justice. He has scrupulously avoided mentioning the worst carnage in recent times, the Gujarat pogrom of 2002, in which over a thousand people were killed with the state not stepping in a for a while. Perhaps, in the next edition of the book he might include this. He might also elaborate on the treatment required following his brilliant diagnosis.

All said and done, this book should be widely read. It will be useful if it is translated into Indian languages.

Ambassador K.P. Fabian is author of Diplomacy: Indian Style.

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