Anita gets Bail: There is a systematic, determined and unrelenting assault on the judiciary, Arun Shourie

Anita gets Bail: There is a systematic, determined and unrelenting assault on the judiciary, Arun Shourie

Ashutosh Gambhir

Arun Shourie is a man who has donned many hats. He has worked as an economist with the World Bank, the editor of the Indian Express, the Cabinet Minister for Disinvestment in the Vajpayee Government, and has authored several books.

His latest book, titled ‘Anita gets Bail – What are our courts doing? What should we do about them?’, was recently launched amidst great fanfare, with several members of the legal fraternity acknowledging its importance.

The book is written in the backdrop of a false case against Shourie’s wife Anita, who is ailing from Parkinson’s disease. The case was filed against Anita for evading summons that were never served, regarding the construction of a house that was never built, on a piece of land that she did not even own.

In this interview with Bar & Bench, Shourie speaks at length about the book as well as the current state of the judicial system in our country, the leadership of Chief Justice of India Dipak Misra, and more.

Apart from the experience of the false case against your wife, what prompted you to write this book?

A couple of years ago, I was asked to give a lecture at the National Judicial Academy in Bhopal and NALSAR in Hyderabad. There, I made some of the points which are there in the book. I then requested some of my good friends like Ashok Desai, Arvind Datar, Rahul Unnikrishnan and others to suggest some judgments that I should read. They suggested about 50 judgments. The book arises from those judgments.

I did not plan it to coincide with the crisis in the judiciary, but certainly, the judiciary is under assault – a systematic, determined and unrelenting assault – and everyone must realize that.

Critics of this government say that the country is facing an undeclared emergency. As a person who was at the forefront of defying the Emergency imposed by Indira Gandhi, do you think that the country is actually facing a similar situation?

Of course, and I have used the phrase “undeclared emergency” to explain that this is a decentralized emergency, and we must see that the nature of this regime is totalitarian. It means the determination of total control over the total space – geographical as well as institutional. So what is being done to the judiciary is systematic. It is part of a general assault on all institutions.

It is not just the judiciary, look at what is being done to the Parliament. The government itself does not want a discussion on the no confidence motion, so it asks a few fellows to start shouting slogans and then goes on a fast.

Therefore, it would be worse than foolish to think that this is not well thought out and that there will be some reprieve at some stage.

In the book, you mention that the process of impeachment provided in the Constitution is not an adequate one, what are your views on the impeachment motion that was moved against CJI Dipak Misra?

I think these two issues must be separated. As far as the impeachment motion against Justice Misra is concerned, I certainly feel that the points raised were valid. They show deflection of justice and a pattern in the assignment of cases. They show that the Lucknow medical case has put the judges on the throne of the government because the government has recordings of the CBI etc which they will certainly use to browbeat or frighten the judges. Even with regard to the land case, no dispute can be raised. So the points did amount to misbehavior.

People like Ram Jethmalani and Soli Sorabjee have said that this move of the opposition, to impeach Justice Misra is wrong.

They are my friends and they are among the persons to whom the book is dedicated, but I disagree with them.

On the general point on impeachment, I agree that I said in the book that it is not adequate. To give the final remedy as the only remedy is not a good idea. You can’t have criminal jurisprudence with only one punishment, that is death.

Let us take Justice Karnan’s case. If you wait for impeachment and the case goes to Parliament, some MPs are bound to take the view that Justice Karnan himself took, that he was being persecuted because he belongs to a backward caste. Even in Justice Ramaswamy’s case, the impeachment vote was entirely on political lines. Especially after the Anti-Defection Act, you cannot disobey the party line.

I was a Member of Parliament for 12 years and I can give you my own example. I have written a book against reservations. But when there was a law to be passed regarding reservations in promotions or something like that, the late Pramod Mahajan, who was the Minister of Parliamentary Affairs, warned me that if you don’t vote, you are out of Parliament because of the Schedule 10. So I had to vote. The only single vote against that Bill was by one man, Cho Ramaswamy and I have written in the subsequent edition of my book that he alone spoke for the nation.

<em>Cho Ramaswamy (Image Credit: Deccan Chronicle) </em>
<em>Cho Ramaswamy (Image Credit: Deccan Chronicle) </em>

So it has been a problem for many parliamentarians and it shows how the impeachment process is a very political process. Therefore, it shows why it is not a good remedy in case of judges.

How would you balance these two arguments – the impeachment process not being adequate and your support to the points raised in the impeachment motion against Justice Misra?   

That is why I said that we must separate the issue. If only one remedy is available, naturally you would have to opt for that. What can you do? After all, the four judges tried everything. They went to the CJI, they wrote a letter. They said that in the press conference. They had written that letter two months before the press conference. Nothing had happened. So what else can you do?

The book says that some of the decisions of the Speakers have been manifestly partisan. Do you think the decision of Vice President Venkaiah Naidu to reject the motion against the CJI was also biased?

That would be pasting a motive on him. But certainly, I do not agree with his decision. Whatever the motives, I don’t agree as the Vice President’s duty is limited to only two things. Firstly, check whether there is an adequate number of signatures from the MPs and secondly, whether the charges in the impeachment motion pertain to misbehavior. That’s all. Whether the charges are valid, whether there is enough evidence, that has to be taken care of by the inquiry committee.

But what can the judges do? The judiciary can only implement the law, it cannot legislate.

But is that what the judges do? You can’t say that on this matter I can only implement the law, but on the other matter, I can create the law.

All the progressive judgments of the courts were legislation by judges. They take pride in the fact that we have set a precedent. The Supreme Court recently rendered a judgment where they said that the nomination form for elections must have a declaration of assets, educational qualifications and criminal record. They were legislating a change in the electoral law, which was wonderful.

<strong><a href="" rel="noopener" target="_blank"><em>Read our interview with Lily Thomas and how Supreme Court struct down Section 8 (4) of RP Act</em></a></strong>
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Similarly, they have struck down a provision so that persons who have been convicted will cease to be Members of Parliament and cannot contest elections again. They have legislated a change. The law said that the convicted parliamentarian shall lose his/her membership forthwith. But the next sub clause provided that unless they file an appeal within three months. And I had written about this in my book on the parliamentary system that this is a completely self-serving exception. Which fool, convicted of murder will not file an appeal in three months? That is how persons who had been convicted of murder at the time continued to remain in legislatures.

Do you think that the press conference held by the four senior most judges of the Supreme Court marred the reputation of the judiciary?

Absolutely not, they spoke for the country.

But was this the best way to approach the situation? 

Yes. It was not their private property at stake. It is this institution alone that can protect the people of India, which is at stake. I don’t agree, for instance with Mr. Fali Nariman, who has said that Justice Chelameswar should have resigned and he should not have written the letter. But I feel as Gandhiji said, that when you are faced with an intolerable wrong and when you have tried all other methods, then you must take the extraordinary step and that is what they did.

They would have thought that the Chief Justice would realize that I have pushed my senior most colleagues to this point. The fact that the CJI has completely lost the trust of his senior most colleagues shows, at the least, a complete failure of leadership. Any leader of an organization who loses the trust of his senior most colleagues has lost it.

Many argue that only four judges are against the Chief Justice’s administration and not the entire Supreme Court. 

My friend, do you want to go by votes in such a matter? Don’t you see a pattern in the assignment of cases? That pattern is clear and that is the pattern that the four judges alluded to. A very good example is given by Justice AP Shah when this press conference was held. He said that till then, the CJI had constituted seven constitution benches and none of the senior most judges were on any one of those benches. Don’t you see any pattern in this?

And the manner in which Justice Loya’s case was first given to one judge skipping several benches and then that person had to recuse himself. Then when the Bombay High Court started hearings on the matter, suddenly two fraudulent put up job petitions were taken on board in the Supreme Court, immediate hearings are ordered and the Bombay High Court is ordered to stop. Don’t you see a pattern in that? The judgment itself had such infirmities. The evidence was completely shut out. They started behaving like a trial court without obeying the basic requisites of a trial and then a judgment is delivered saying that this subject is closed forever.

So I see a complete pattern in this and the kingpin of the pattern is the Chief Justice.

In the book, you talk extensively of Justice Loya’s case and his mysterious death. Do you think that an inquiry into the matter by the people who are at the helm of affairs would have made any difference?

No, but the plea has been for an inquiry directly supervised by the judiciary.

Again, Justice Dipak Misra would be involved.

No, he would have to recuse himself for the pattern of distrust that he has evoked. In the normal course, the Supreme Court should have allowed the Bombay High Court to proceed with the matter and there should have been a court-monitored investigation.

With regard to intervention of the judiciary and PILs, you have mentioned that there are some one-issue fundamentalists.

I would not like to talk about individuals, but in my earlier book Courts and their Judgments, I have referred to the Narmada Case. Many activists become so concerned about their particular issue. They are sincere, but if someone else does work on another issue, their general reaction would be that the work being done is good but it is not being done on the real issue.

I have seen this in several judgments also. Someone might be fighting for the environment or equality, but they don’t see the impact on the system as a whole. I mentioned this in my book Falling Over Backwards, which is on reservations. They just did not see the impact of the judgments on this one point of reservations on the economy as a whole, on our competitiveness in the world. They did not see that these reservations would be monopolized by the dominant groups within the backward classes.

Your book also speaks about legitimate criticism of the judiciary as well as judgments.

I have always been very careful and the Supreme Court has also been very good in this matter, thus far. That is, they have always said that we welcome criticism and analysis of our judgments. But just don’t attribute motives on us. That is very good.

With regard to journalists you say that they give equal space to the arsonist and the firefighter. Regarding lawyers you say that the bigger the crook, the craftier the lawyer he is able to find.

Well I certainly think that a person like Mr HM Seervai would not have taken up a case if he felt that a person is a scoundrel, nor would Mr Nani Palkhivala, I have known him personally.

The best example, that I have always held up for professionals is that of Mahatma Gandhi. As you know, he was a lawyer in South Africa and he always told the client who came to him that if he found out at any stage that the client has lied, he would tell the Magistrate. And there were several cases where he did that and withdrew from the case. We must aspire to those ideals.

Isn’t it the duty of a lawyer to defend a client within the constitutional bounds?

Not in my view. In think the duty of the lawyer is as an officer of the Court. So, they must be the judges of first resort. I also differ from journalists when they say that they are here to present both sides of the story or with the civil servants who say that their job is only to be very “civil servants” of politicians. I am the son of a civil servant who would never obey the order given by any Minister just because he has been elected.

In the book you speak about appointment of judges. Do you think that the Collegium system is the best way?

Yes, I think it is best that the professionals should be judges of professionals. The problem with the NJAC was that the political executive, not just the present government, but the entire political class was trying to again wrest control back into its own hands. That is what was bad. Generally speaking, as a class, the judiciary as a whole is much better in terms of competence and integrity than the political class. Therefore, I think that the control should remain among the judges. That does not mean that there will not be bargaining or low-level politics, but at least it will be among professionals with some norms and checks.

Do you think the process of background checks on judges by intelligence agencies is the right way to analyze as to who should be elevated?

I don’t think it’s the right way, but that’s the only way governments have for blackmailing people and so on. But the problem is that the judiciary has to stand up on its own.

I’ll give you this current example of Justice KM Joseph and Senior Counsel Indu Malhotra. The government has withheld Justice Joseph’s elevation. What would have been the Gandhian way to look at it? The Chief Justice should have said that I will not have any swearing in until both the names are cleared. Simple. And, if I were Justice Malhotra, I would say, I will not take an oath till Justice Joseph’s name is also cleared and we’ll take the oath together. That would have been the Gandhian response. The judges have to stand together. If they don’t, they will be picked up one by one.

Any parting comments?

I would like to say that the comments made in these specialist journals will make a great difference day after tomorrow. The judges and the lawyers will know that we are under watch.

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