Amicus Curiae 

Arun Shourie’s new book is essential reading to understand the successes and failures of the Indian judiciary, in particular the brilliance and shortcomings of its approach and judgments

Written by Dushyant Dave | Updated: May 5, 2018 12:33:45 am
Anita gets Bail is a book that every Indian who is concerned about the nation must read.

Name: Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them?

Author: Arun Shourie

Publication: HarperCollins

Pages:  288

Price:  Rs 699

Arun Shourie is back in bookstores with yet another work. Anita gets Bail is a book that every Indian who is concerned about the nation must read. The world’s largest democracy cannot survive without a fiercely independent and hugely efficient judiciary. With a billion-plus people, the demand for justice is ever-increasing. Citizens are clamouring for the removal of injustices done to them by the State, its authorities, or even by other citizens. And they expect quick but fair justice. With almost 40 million pending cases across courts in India, the judiciary is under severe strain. It lacks human resources, infrastructure, and also a supportive group of lawyers. Yet, if there is one organ of the state which is most admired and looked upon with reverence by the citizens, it is the judiciary.

Like all state organs, the judiciary must be under the constant gaze of the people, especially enlightened Indians. It cannot escape public scrutiny if it wants to retain its independence, its efficiency, and the respect accorded to it. Unlike the legislatures, the judiciary is not subject to periodic checks by the people through elections. This increases the need to keep a watchful eye on the judiciary. The onus is on civil society, the press, the bar, intellectuals and writers and, of course, citizens.

Shourie has produced an extraordinary analysis of the jurisprudence churned out by the courts, especially the Supreme Court of India, in recent years. With his forensic skills, he tells readers of the good law that has been given by the courts to citizens and, on the other hand, he is at pains to point out serious flaws in the approach of the courts. He tells us how judicial power is being exercised for the common good, and to strengthen the body politic, and yet, in the same breath, he informs us as to how the courts are failing on numerous occasions. He paints a very rosy picture with one brush, yet with another stroke portrays the darker side. The book contains a very meticulous and scholarly examination and analysis, highlighting the advantages and pitfalls of some of the leading cases decided by the courts. Shourie reflects not merely on scholarly qualities in this, but offers legal scholarship of very high calibre.

He takes readers on an interesting journey beginning with the case of his wife, to underscore how fragile and porous the legal system is, in which innocent citizens have to suffer, and suffer for years! His portrayal of cases involving L Jayalalithaa helps to establish the judiciary’s attempt to stem corruption in public life but, at the same time, demonstrates how judicial process could be abused under the watchful eyes of the judiciary itself to delay the ultimate conviction, and that too, regrettably, after her death. However, Shourie misses a crucial development in this sordid saga, when even after her conviction by the trial court, the Supreme Court protected Jayalalithaa in not only granting bail but in permitting her to continue as chief minister under a highly questionable order.

He touches upon the national anthem judgment of the Supreme Court, which to my mind, is nothing but a political speech by the court camouflaged as a judgment, and then discusses the language used by courts, which makes their judgments unfathomable and open to ridicule. He underscores the freedom of speech and expression, relying on the judgment in the Padmaavat case, and then ruefully laments the conduct of various state governments in banning the film. His emphasis on Prakash Singh’s case on the one hand, to bring much-needed police reforms in the country, and the various judges’ cases on the other, to highlight the need to improve the lot of the judiciary, also sheds light on the inner workings of the courts.

Shourie is unforgiving in discussing the Kalikho Pul, Justice Loya, Sohrabbudin and Medical College cases to highlight with dismay the court’s approach and decisions. These are some of the most far-reaching matters involving not just purity in judicial life and the need to bring out cases of alleged corruption, but the fundamental need to prevent the rich and the powerful from obstructing justice. The chapters on these matters take readers vividly through the events, raising in their minds serious questions to ponder and agitate against. Readers may feel revolted by the judicial abdication and self-protection demonstrated in these cases.

Shourie shows the funny side of the judiciary by highlighting cases on issues of peacocks reproducing through their tears, the science of cows, great rivers being declared as living persons, and the sale of liquor on highways. He does this not with the object of ridiculing the judiciary but to underscore that it needs to avoid such pronouncements. The book is so compelling that the reader, even a lay person, would keep turning the pages. At no stage does it lose rhythm or pace, nor does it become dull at any point. It engages the reader all through.

The judiciary is currently passing through tumultuous times. Shourie’s book could not have come at a more crucial point. It is a must read to understand the success and failings of the judiciary, the brilliance and the shortcomings in its approach and judgments, its desire to strengthen the Constitution and its institutions and its failures to do so, its functional simplicity and the machinations playing within it. Shourie offers all this and more in what could possibly be the most engaging read of the year! This book is a must read for all, not just lawyers alone.

Dushyant Dave is a senior advocate at the Supreme Court of India

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