On Tuesday, May 1, Justice A.P. Shah, former chief justice of the Delhi high court, spoke at the release function of Arun Shourie’s new book Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them? Reproduced below is the speech he delivered. The Wire has abridged it slightly and edited it for style.

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Arun Shourie’s latest book on the judiciary, Anita Gets Bail: What are our courts doing? What should we do about them?, could not have come at a more appropriate time.

Our judiciary is going through what I would describe as an extremely volatile phase, and one that I haven’t seen in some years myself. Most of us are only too aware of what is happening, and some of us talk about some of these things in hushed whispers or, occasionally, in loud voices. But Shourie has done what most of us have not. He has put pen to paper, and in his own distinctive style, and with remarkable flair, “called out” the judiciary and those who staff the system. This book covers a vast expanse of subjects, from the disturbing state of affairs in our lower courts, to how the judiciary is being used by the mighty for their own benefit, to the consequences and meta-consequences of the judiciary’s actions, to the eloquence and sometimes grandiloquence of judicial orders… I can only hope that the powers that be read these essays with care and indulge in some self-reflection to understand where we are headed, and ensure that the course we are taking is not wayward or destructive.

Besides congratulating Shourie for this wonderful piece of work and contribution to the under-studied subject of judicial reforms, I would like to briefly touch upon some of the questions he has raised – the criminal justice system and the sad state of affairs there, and what happens when it comes to the judiciary’s own, particularly regarding how protective the judiciary can be of its members, sometimes even at the cost of justice itself…

Anita gets bail

In the chapter which gives its title to the book, a harrowing experience is described by Shourie. Of how his wife, ailing for many years, whose health had been deteriorating over the years, and barely able to sit up on account of her illness, became the first person in their family to be out on bail, for having avoided summons that were in fact never served, in connection with a house that they had never built, on a plot that they did not own. The case involving Anita Shourie went on for six years, and nearly 50 hearings, before the family was finally allowed to stop suffering from this trauma.

On one occasion, when the application to exempt Mrs Shourie from personal appearance was taken up – incidentally, by the fourth judge handling the case, and the third since the Shouries had been appearing before the court – the judge saw her condition and said, she could keep sitting where she was. But having been harassed enough by the procedural peculiarities we have concocted for ourselves, Shourie insisted on presenting her up front before the bench. He remarked, “I hope the majesty of the law has now been upheld.”

I shudder when I read these words. How trite it all is when we have coffee-table conversations about complex constitutional questions, when in fact our judicial fabric is crumbling before our eyes, and we care less and less about it.

There is no doubt that there are serious problems. A low judge-to-population ratio, a generally inadequate number of judges, poor infrastructure, and an executive not entirely supportive of the judiciary. But even when the judicial system is dedicated to solving a problem, glitches appear. For example, in at least two instances, in the cases involving the Bhopal gas tragedy, and the Bombay blasts, courts were set up to exclusively deal with these cases, and not do any other work. Both sets of cases took an abominable length of time – Bhopal took 15 years; Bombay took about 10. Surely this is an indication that there is something wrong in the system, if even dedicated judicial machinery cannot function within reasonable periods of time. This demands some introspection on the part of both the judiciary and the executive…

Gaming the judiciary

While on the one hand, you have the courts subjecting regular people to the distressing mores of criminal procedure, on the other hand, the rich and powerful have taken the judicial system for a ride.

This is not a new story by any means, and we have heard it ever so often that I worry that we have lost all scope for introspection critical thinking, and the truth no longer troubles us.

Shourie tells us of how Jayalalitha and her coterie trampled through the justice system, and made a mockery of judges, prosecution and governments alike. The case was a classic example of complete misrepresentation and distortion of facts. When the matter involving Jayalalitha’s disproportionate assets came to the high court, the judge used an arithmetic peculiarly his own to inflate the legitimate income of the politician and her associates, and deflate her expenses, so that the effective surplus they were left with were legitimately sufficient to justify the assets they had acquired.

As we all know, the case went on for 20 years. And this is not an unusual story, by any means. Take any major scam involving a political leader – hardly any have been convicted. The odd Sukh Ram or Lalu Prasad may be there. But even so, the rule of thumb seems to be that if a politician is involved, you can be sure it won’t end quickly. Mostly, cases will get dragged for years and years, decades even. The accused will die, or eventually get acquitted. It is as though they are untouchable.

What is the court doing about these kinds of cases? We need to think about what are the steps that the judiciary intends to take in such matters. In this way, at every step of the way, this case is a study of how to game the system. More critically, the case demonstrates how the Bar is a great deal more responsible for the situation we are in today, than it is believed.

Indeed, B.V. Acharya, the special prosecutor in the Jayalalithaa case, has recorded in his memoir, which is quoted in this book,

“My appearance in the … case has taught me such variety of novel grounds on which adjournments could be successfully sought that I could write a book on the subject ‘Law of Adjournments’. However, I desist from doing so, as I do not want any accused intending to prolong trials to take advantage of it”.

Even with all this, the judiciary remains one of the last institutions standing in the country that commands some respect. But this too seems to weakening. As the book points out, “cases in court wax and wane in accordance with the convenience of those who happen to be in power.”

Protecting their own

When it comes to their own, the judiciary is particularly protective. And this book meticulously details many cases and instances where this has taken place. The truth is that each time a single judge is accused of misconduct or misdemeanour, it is a blot on the judiciary. Take the case involving say, Justice Nirmal Yadav, the sister of a powerful politician. Her alleged demand for a bribe to issue a favourable judgment came to light only fortuitously and by chance, when someone referred to her as ‘Nirmalji’, leading to someone else mishearing the name as Nirmaljit, and depositing the money at the doorstep of Justice Nirmaljit Kaur instead. Surely, even the apparent demand for a bribe, or the presumption that judges could be bought for a fee, is enough to make the system’s reputation collapse.

Two former attorney generals, along with then the law secretary, almost successfully managed to have the case hushed up. It was only because a courageous magistrate refused to entertain the closure report filed in the matter, that the case proceeded. It helped that the president also granted sanction to proceed with prosecution.

After all this transpired, the judge in question did not have her work taken away. Instead she was merely transferred to another court, where she continued to adjudicate. How could you allow a person, who has been accused of so appalling a crime, to continue to perform the critical function of dispensation of justice? What is disturbing still is that nearly a decade has passed, but the case is still pending…

Many other instances can be quoted such as, Justice Shamit Mukherjee’s case, the case relating to the Income Tax Tribunal where undelivered judgments have been found on the computers of lawyers, the Ghaziabad Provident Fund Scam, where the star witness died mysteriously in jail, etc.

Shourie makes some valid observations about how such cases ideally ought to proceed. He says, and I agree, that the judiciary must ensure that such cases are fast tracked, especially because it involves a fellow judge. Indeed, there must be no sense of what he calls “false loyalty”, merely because the judge is one of their own. The judiciary does not help its own case when it rejects requests for information on assets owned by judges, or when it stays the order of the Delhi high court on the applicability of the RTI Act to the office of the chief justice, and has not passed a final decision on the matter for as long as ten years. We need to keep asking tough questions, and we need to keep demanding honest answers.

Press conference by four SC judges

The story is depressingly similar as you climb up the judicial ladder. The press meet held by four senior judges of the Supreme Court earlier this year made allusions, in no cryptic terms, to the charge of selective allocation of cases, and the misuse of the power of master of the roster. This is a very serious issue, and is nothing short of an allegation of bench packing. The Judge Loya case was a trigger for the press event, but what the judges allege has happened several times in the past. This is all very elaborately and methodically discussed by Shourie.

He has actually listed the instances where cases were transferred from the judges who were originally seized of the matter and allocated to others. These are not mere allegations. Shourie has given the names of the cases, the names of the judges. And substantiated where the chief justice appears to have arbitrarily allocated matters.

Shourie says that the four judges who held the press conference were confronted by Gandhiji’s notion of an “intolerable wrong”, and therefore decided to come out. I have heard many say that they should not have gone to the public… But it is precisely this culture of secrecy, which we have inherited from colonial days, that we need to overcome. When you don’t speak at all, everything is swept under the carpet, and the problem rarely, if ever, gets solved.

Kalikho Pul’s suicide note

Take the other case of the former Arunachal Pradesh chief ninister, Kalikho Pul and his suicide note. Pul had, among other things, made certain allegations about politicians, bureaucrats and high officials including the then sitting Chief Justice of India and another Supreme Court judge. Ordinarily, his note alleging that money allocated to the north eastern states was siphoned off, ought to have been treated as a dying declaration, and investigated accordingly.

When no investigation was made into the allegations of Pul’s suicide note, his wife wrote to the then sitting chief justice, by way of an application on the administrative side, seeking permission to file an FIR against the judges mentioned in the note. This was necessary in view of Supreme Court judgment in Veeraswami’s case Instead of treating it as an application on the administrative side, the Chief Justice listed it as a writ petition before a bench comprising judges relatively lower in order of seniority. Ultimately, the lady withdrew her petition before any decision could be made.

Shourie asks is it good for the judiciary for the case to have been treated thus. The fact that it was decided in this fashion means that doubts as to the truth will persist for years and years to come. Ideally, the Supreme Court should have set up an independent inquiry, and actively ensured to see that the matter was closed, and allegations sorted out and appropriate action taken against perpetrators, if any.

Allegations of bribery in medical colleges case

There is also the case involving multiple medical institutions, in connection with a criminal complaint filed by the CBI which alleged as follows: that a conspiracy was hatched by certain persons, including a former Odisha high court judge and a hawala dealer, to allegedly bribe Allahabad high court and Supreme Court judges who were hearing the case. Chief Justice Misra was leading the bench which had heard and decided the case of Prasad Education Trust.

The petitioners and the Campaign for Judicial Accountability ad Reform (CJAR) and others asked that a Special Investigation Team be constituted. Justice Chelameswar, heading a two-judge bench, directed that it should be decided by a bench of five senior-most judges. The chief justice, in response, declared himself to be the “master of the roster”, holding that there could be no “kind of command directing the CJI to constitute a bench”. The fact that the CJI should insist on issuing such a declaration despite having been on the bench deciding the original matter, prompts one to ask, as Shourie does, quoting Faiz Ahmed Faiz,

Bane hain ahl-e-hawas muddai bhi munsif bhi

Kise vakeel karein kisse munsifi chaahen? [Translation: Facing those that both prosecute and judge,

To whom should one turn for defence? From whom should one expect justice?]

As a matter of fact, the CBI seized cash of Rs 2 crore purportedly given as bribe. They had tapped telephone conversations in connection with the case, transcripts of which are in public domain. What is strange is that, just the other day, the [Patiala House] court has directed the media not to discuss this, despite everything being in the public domain.

The petitions in question were assigned to other benches, and both were subsequently dismissed. When a party like CJAR raises these questions and prays for the constitution of an SIT, the Supreme Court decides to shoot the messenger, and fines the organisation an unreasonable sum of Rs 25 lakh, for pursuing what the court termed frivolous and contemptuous litigation.

The curious case of Judge Loya

The Judge Loya case, which Shourie discusses in great detail, is another where an inquiry was evidently needed, but was openly avoided. We all know the facts. A powerful politician was involved. The Supreme Court expressly announced that the judge in the trial ought not to be changed at any cost, but the day before the politician was to appear before the court, the judge in question was mysteriously transferred, in the face of the Supreme Court order. Another judge – Loya – was appointed thereafter. Video testimony of his father and sister suggest that the judge was offered big money, plots and property.

It was not a small case he was handling. The record itself ran into 10000 pages. He demanded reasons as to why the politician did not appear before the court, and kept the matter for December 15 of that year, but died suddenly on November 30. The next judge comes on the scene, and before you can blink an eyelid, by December 30, the matter is over. Compare this with the case involving Mrs Shourie. For absolutely no reason, that case was dragged on for years and years. Here, a case involving a voluminous record of 10,000 pages is concluded in record time. The CBI decides not to appeal. Harsh Mander as a private citizen tries to file an appeal, but the Supreme Court sends him away on grounds of lacking locus standi.

Shourie has detailed the suspicious circumstances of Judge Loya’s death, and has said that this should have been a matter of an inquiry. But now the matter is closed.The judgment has since come, in 114 pages, delivered by a bench headed by CJI Mishra. By the time the judgment came, Shourie’s book was already in print, and he could not deal with it. Which is why I feel I should make some mention of the issues in relation to this judgment. The judgment – in my opinion – is utterly wrong, and jurisprudentially, incorrect on so very many counts.

Problems with the Supreme Court’s Loya judgment

The three judge bench of the Supreme Court dismissed the petitions, rejected the request for an enquiry, and held that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this court.”

Much of the judgment is spent attacking the motivations of petitioners who bring forward Public Interest Litigations, particularly politically-motivated PILs. This is not the first time the court has dealt with this. But has the court properly analysed the use of the PIL in this particular case?

Who, truly, has misused the PIL here? Shourie points out that it was the Bombay Lawyers Association which filed a PIL in the Bombay high court. They asked for an independent inquiry into Judge Loya’s death. Then, a new petition surfaces in the Supreme Court, which is allocated to Justice Arun Mishra’s bench, which triggered the four judges press meet. That petition would have been ordinarily heard by the Bombay high court. This was engineered to see that the Bombay high court was excluded and that the Supreme Court instead take up the matter. In the book, Shourie tells us that the lawyer appearing for the petitioners in Supreme Court had appeared for the politician in question in the past. If at all anything is evident from the facts and circumstances of the case, it is that the petition that came to the Supreme Court was a motivated petition, and unfortunately, the Supreme Court could not see through this, and the judgment is delivered without a word of mention about this aspect.

Another thing which is remarkable about this case is that the court called it a “veiled attempt to launch a frontal attack” on the judiciary. But how did they come to this conclusion? All that the Bombay high court petitioners asked for was that the death of a judge should be inquired into. How does this become an attack on the judiciary?

The petitioners highlighted several suspicious circumstances surrounding the judge’s death. Shourie quotes some of them. In the course of the case, the Maharashtra government appears to have conducted a discreet inquiry, and recorded the statement of four judges who accompanied Judge Loya to Nagpur. This discreet inquiry is not a testimony on oath. In fact, there is no evidence on record. And worse still, there is no opportunity for cross examination, and no opportunity for the public to read the report of this discreet inquiry.

What in fact transpired is that the Supreme Court acted as a court of appeal, and granted a sort of an acquittal, without the benefit of the judgment of a trial court. As the constitutional scholar Gautam Bhatia describes it, “it reads like a trial court judgment that has been delivered without a trial”

More problematically, the Supreme Court has evolved a whole new jurisprudence regarding the statement of a judge. It says that the statements of judicial officers should be accepted on the face of it, as their statements have a “ring of truth” about them. Note that these statements made by the four judges who accompanied Judge Loya to Nagpur were not made in their capacity as judges, but about their personal knowledge of what happened in Nagpur. Nobody has seen their statements. However, the ring of truth still exists, and therefore the court has decided that these statements should be accepted. It is as if judges are to be treated as superhuman, as beings who are not capable of telling untruths.

It gets more uncomfortable when the court dismisses the fact that the judges cannot be cross-examined, because their testimonies are not on oath, as being “mere technicalities”. The cross examination is regarded in criminal law, and in international convention, as the most powerful weapon to get at the truth. And our Supreme Court calls it a mere technicality? We should be very very worried.

Compare this with what court said regarding the video testimonies of Judge Loya’s father and sister. It said that these were mere hearsay and ought to be disregarded. In the same case, the Supreme Court chooses to completely disregard the Evidence Act, when it comes to the testimony of judges, but chooses to invoke it for the video testimony of the deceased judge’s family. This is an entirely new principle that has been evolved – that a testimony is said to be accepted, not because the person is telling a truth, but because that person is of a certain status, in this case, a judge, and by virtue of being of such status, that person is incapable of telling an untruth.

After reading the judgment, it seems, as another young scholar, Alok Prasanna Kumar says, that the court was not interested in finding out the truth.

Conclusion

There are many many other cases and stories that Shourie draws our attention to, through this book. All of them ask uncomfortable but fundamentally important questions. If anyone in this country today wants to work towards a better future for India, these difficult questions must all be answered with priority. We cannot function without a judiciary that is independent, or without a justice system that is self-reflective, and is aware of its faults and wants to improve them. I hope that this book will be used for these things and more. I can only congratulate and thank Shourie for having made us uneasy, for only with such unease can transformative change emerge.

A.P. Shah is former chief justice of the Delhi high court