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BOOKS
Sorry
Your Honour
Arun
Shourie's timely rejoinder to the vagaries of the highest court
By Fali
S. Nariman
Armed
with a written ConStitution, our proud boast has always been that we are
a nation governed by laws and not by men. Arun Shourie's new book shows
that this is true only in theory: the law is ultimately what the justices
of the final court say it is. The book is a critique of the work of the
court-an effective and timely counterpoint to the paean of praises on
the court's functioning during its golden jubilee celebrations at the
turn of the new century.
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COURTS AND THEIR JUDGMENTS
By Arun Shourie
Rupa
Price: Rs 495
Pages: 462 |
Shourie's lack of formal legal training is neither
noticeable nor apparent in the text. His rich experience gathered over
the years from successful forays into journalism, from prolific writings
on a host of different subjects and from his sojourn in Parliament as
a minister has helped to contribute to a clarity of thought and fluency
of expression on a difficult subject. The author has definite points of
view about the "judicial approach" to sundry problems and he
gives expression to them forcefully-and without the hypocrisy associated
with people and opinions that emanate from the capital city. Carefully
analysing a couple of hundred judgements delivered by the court over the
past 50 years, Shourie's underlying comment is that when you read them
you find "that judges consider each issue as an issue itself-isolated
from the context of society, often independently of the consequences that
will follow from it".
He may be right but this is only because under
our legal system courts decide individual cases and not broad issues.
The problem is, under our Constitution the law declared by the Supreme
Court is binding on all courts and authorities in the country and quite
often the law itself is influenced by the facts of an individual case,
and so gets shaped by them.
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EXCERPT
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Our protectors
Every one who has been connected with the press,
indeed every author in India, is indebted to our courts, in particular
to the Supreme Court. They have been, the Supreme Court in particular,
our shield. They have enlarged, and again the Supreme Court in particular,
the ambit of free speech in our country.
On several occasions I have turned to the courts
for protection. At one time, when I was in the Indian Express,
the then Government had instituted and was pursuing-through hundreds
of officers from half a dozen enforcement and investigating agencies-over
320 inquiries, investigations, cases against us. The courts, and,
of course, the support of our readers were our only dykes.
And what sturdy dykes they proved to be: that
Government went, we survived.
But it is also true that sometimes I have had
to watch helplessly as the courts could not be persuaded to do what
seemed clearly within their power, what seemed to be manifestly
mandated by law.
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Shourie's book is worth reading not only because
it is well-researched and plausibly presented in elegant prose, but more
importantly because it expresses the frustrations of a thinking intellectual
at the vagaries of decision-making in the apex court. He is certainly
entitled to his frustrations and to give vent to them, as did Lord Robin
Cooke of Thorndon a few years ago when he criticised our court's interpretation
of a constitutional provision about how judges of the higher judiciary
are to be appointed. Cooke did not mince words in his lecture, although
in a typical understatement he titled it "Where Angels Fear to Tread".
Shourie regrets the inconsistencies in the decisions
of courts. But then, our Constitution is deliberately so structured as
to ensure judicial consistency at all levels except the highest-and in
the highest court the individual justices who sit there don't think alike
and are (thank God!) not averse to saying so. Sociologists have ascribed
the reason for uncertainty in the law in the country's highest court to
what they describe as "the plumbed depths of judicial psychology"-in
other words the penchant of judges to over-rule. Judges of the apex court
in almost every country produce a recurrent proportion of successful appeals:
the subconscious motivation is said to be role justification. That a final
appellate court allows a substantial percentage of appeals in this (and
almost every other country) reflects a truism: that judges are decision-makers
and that the law itself notwithstanding, the legal ethic of certainty
is very often a matter of personal opinion. Uncertainty in the law is
then a byproduct of the law itself.
The power to declare the law, an American judge
once said, carries with it the power, and within limits, the duty to make
law where none exists. Shourie would accept this-his only complaint is
that our courts, too often, cross "the limits". He is not against
judicial activism as such, but has strong reservations about some of its
manifestations: first, because it is fed on superficial (not profound)
rhetoric bordering on "exhibitionism"; second, because activist
judgements have not been "thought through", that is, as to their
consequences. Each time the court forays into a "problem", it
raises hopes and expectations but when despite the court's pronouncement
the problem remains unsolved there is cynicism. He would commend to the
judges Lenin's dictum: "Fewer, but better." This piece of advice
may or may not be taken to heart by those to whom it is addressed, but
it will find many supporters among those who read and attempt to understand
the judgements of the highest court in what are known as public interest
litigations.
Shourie's trenchant comments are spread over
18 chapters, each with a descriptive heading. The entire work covers over
450 printed pages. In them the author makes some hard-hitting points such
as taking useless cases on board or how when courts have to protect us
they sometimes look the other way or occasions when the courts are process-and-procedure
oriented (not result-oriented). He expounds on the delays that make one
blush and angry, on the tribunals that act as if they had been cloned
from courts, the ambiguity of court judgements and, alas, the lack of
intellectual depth in some of them-"like a ship with a great deal
of sail but a very shallow keel".
Despite all these criticisms, my own view is
that the Supreme Court is seen by many people as striving to do justice
according to law. If it has not succeeded (according to some, including
Shourie), it is not for want of trying.
As for the judges, I cannot-I dare not-speak
for them. But if I was a judge I would read this book and be reminded
of what the poet Robert Burns wrote so many years ago: "Ah, would
some power the gifted give us/ To see ourselves as others see us/ It would
from many a blunder free us ... "
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