Courts and their Judgements

A realistic take on working of the Indian judiciary. Shourie cuts through the veil of juristic rhetoric and lays bare how the idealistic aspirations of individiual judges leads to arbitrary and utopian judgements undermining the constitution and weakening the republic.

While these are well estabished facts, the book distinguishes itself through Shourie’s crisp writing presenting a staggering level of detail, at times tedious and repeatative, resolutely driving in the argument page after page and case after case. The analysis is unique, made from an editor’s eye more than that of a jurist but just as scholarly going over nearly a hundred judgements.


Chapter 4. The ‘State’ of India

▪ While introducing it, Dr Ambedkar alluded to just the words at the end: ‘or under the control of the Government of India’. He said that it was possible that in future some territories might be placed in trusteeship with the Government of India. Persons staying there should also enjoy all the Fundamental Rights that were available to citizens residing in India – hence these words.

▪ Does this not mean that ‘all local or other authorities’,– each of them being as much the ‘State’ under the preceding draft article as any higher authority – shall have the constitutional sanction to make any law restricting the Fundamental Rights the Constitution is seeking to provide?

▪ In three important cases of 1969 and 1970 – those covering the Praga Tools Corporation, the Heavy Engineering Corporation, and Hindustan Steel Limited – the Supreme Court took the view that these companies had been incorporated under the Companies Act, that, therefore, they had an existence independent of the government, and could not be held to be departments of the government.

▪ The Court used the fact that each of them had been set up under a special statute to rule that they were ‘other authorities’ under Article 12 and, therefore, the ‘State’ of India.

▪ By the mid-1980s these criteria were being used to pronounce one institution after the other, indeed one type of institution after another type to be the ‘State’ of India.

▪ Corporations had been set up not because someone had taken a fancy to the form, but because there had been a definite need – of giving them the sort of freedom they would never have were they to continue as governmental departments. But, as in the passage above, for the Supreme Court the act of setting up was just a device to draw a ‘juristic veil’ across the real character of the entity – which was that the entity was and remained a limb of government.

▪ Substantial financial help? But on that criterion, thousands upon thousands of cottage industries must be taken to be the ‘State’, indeed so would thousands upon thousands of households that have received assistance under the scores of governmental credit schemes that are in operation today.

▪ Substantial governmental control’? But because of the licence–quota regulations, right up to the 1990s almost every single unit operating in the country was in substantial thrall of the government – did that mean that all of them would be the ‘State’?

Chapter 5. A meta-consequence

▪ The earlier judgments on the article revolved round the difference between the twin expressions that have been used in the article – ‘equal protection of the laws’ and ‘equality before the law’ – and round what sorts of classifications of individuals and groups did or did not offend the principle of equality. As the years passed, these debates were overshadowed by the courts extending the reach of the article farther and farther on the view that equality is a dynamic concept, that it cannot be confined and imprisoned within a doctrinaire cage

▪ The Court were treating loss-making and profit-making companies at par, the law was in fact treating unequals as if they were equals.

▪ With ever more institutions being brought within the definition of the ‘State’, and with an ever wider spectrum of actions being examined on the touchstone of whether they offended this ‘dynamically’ viewed equality, almost every act of the executive came to be open to challenge in the courts

▪ Recall how Article 14 is worded: ‘The State shall not deny to any person …’ The words were chosen deliberately: the negative expression has been put in as an embargo on what the state may not do. Second, to whom shall the state not deny? To ‘any person’: the subject is the individual citizen.

▪ The judges chose to brush aside both these features of the article: the article does not mandate the State to merely desist from discriminating against a person in regard to laws or the protection available under law, they declared; it enjoins the state to take positive steps which would ensure that each individual has equal opportunity

▪ to cite just one instance, even though the Constitution does not enumerate education as a fundamental right, it is a fundamental right, declared the Court – for without everyone being educated, equality shall remain a mirage

▪ Next, while the words of Article 14 manifestly talk of individuals, courts have decided that the State must not just discriminate in favour of individuals who are disadvantaged; it must discriminate in favour of groups that are disadvantaged. Thus, while dilating upon Article 14 in Indira Sawhney Justice Jeevan Reddy in a typical passage observed, ‘Among others, the concept of equality before the law contemplates minimizing the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also among groups of people

▪ As the reader will recall the words of the judge parallel Article 38 – which states, ‘The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities of status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations.’ By such juxtaposition, phrases from the Directive Principles part of the Constitution, provisions that had been deliberately left unenforceable, have been read into the content of Fundamental Rights.

▪ In practice, all those admonitions for ensuring ‘fairness’, ‘non-discrimination’, for eschewing ‘arbitrariness’ have reinforced the tendency in the civil service to play safe. They have led the administration to tie itself firmly to rules of thumb. Pay increase? ‘Parity across the board’. Promotions? Go strictly by years the man has put in

▪ The point is that the courts, instead of helping lift a weak political class out of the morass of mechanical rules, have contributed to pushing it deeper into the swamp.

▪ the courts have helped drive merit completely out of governance. By straining so much in favour of ‘equality’, ‘fairness’, ‘non-discrimination’, courts, as much as our politicians and intellectuals, have helped make mediocrity – indeed, non-performance – the norm.

Chapter 6. From ‘life’ to ‘life with dignity’ to the pay of imams

▪ Article 21 was meant to provide safeguards against arbitrary arrest and detention of persons, it was to be a shield against physical restraint of and assault against persons by the machinery of the state.

▪ The right to life enshrined in Article 21 covers all persons, the Court reasons. Imams of mosques too are covered by it: they too have the right to live with dignity. Therefore, irrespective of whether they were paid traditionally or not, irrespective of whether the Wakf Act requires this or not, by virtue of Article 21 imams of mosques are entitled to remuneration. During the hearings the Union government as well as the Wakf Boards pointed to the woeful financial condition of the Boards, and stated that the Boards were just not in a position to pay salaries to imams. The Court will have none of this

▪ To maintain that the Constitution makers ‘purposefully’ left ‘life’ and ‘liberty’ undefined so that the expressions ‘gather meaning from experience’ is just not true. The fact is quite the opposite: they deliberately circumscribed ‘liberty’ by adding the prefix ‘personal’; they had as clear an idea of the limited sense in which they were using ‘life’ as one can; they were concerned with providing a dyke against physical restraint and coercion by organs of the state

▪ But the distinction between Articles 19 and 21 itself tells the tale, one that should have alerted our judges as they brought one desirable after another under the purview of Article 21. The framers of the Constitution intended that while the state shall not be obliged to guarantee to foreign citizens Fundamental Rights like freedom of speech, the freedom to move about throughout the territory of India, even foreigners shall be guaranteed the minimum – that they shall not be deprived of their limb and life or their personal liberty without following the procedure prescribed by law. But now that our judges have read education, health facilities, shelter, livelihood … into Article 21, surely it follows that the state of India is obliged to provide these to every foreigner too!

▪ The word ‘due’ in the expression ‘due process of law’ in the American Constitution is interpreted to mean ‘just’, according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is ‘due’ from otherwise, according to law. The deliberate omission of the word ‘due’ from Article 21 lends strength to the contention that the justiciable aspect of ‘law’, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution.

▪ There has been in this regard a sort of convergence of activism: bringing in more and more entities within the ambit of Article 12 as the ‘State’ of India, expanding the reach of Article 14, reading a wider and wider array of responsibilities into ‘life’ and ‘personal liberty’, and finally reading due process into ‘procedure established by law’.

▪ In the Jharkhand Mukti Morcha (JMM) bribery case the majority judgment chose the strict constructionist reading of the article. Accordingly, it made a distinction between bribe givers and bribe takers: those members of parliament who had taken bribes to vote one way or the other would not be liable to prosecution, the Court declared, for the article bars punishment for a vote cast in parliament; but those who gave the bribes would be liable to prosecution. Not just that: while those members who accepted the bribes for voting one way or another and did in fact cast their vote would not be liable to prosecution, those who accepted the bribes but then did not vote would be liable for prosecution – for the article states that the members shall not be punished for any vote cast by them in parliament, but as this latter set had not cast the vote, they had no immunity.

▪ Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105(2) which would enable a Member of Parliament to claim immunity from prosecution in criminal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament or any committee thereof and thereby place such Members above the law would not only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the constitutional provisions the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution

▪ The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Co. v. City of Chicago, “The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review.”’

▪ How do these square with the self-abnegation of the Bearer Bonds case? And such switches in enthusiasm come not just from the same organ of the state – the judiciary; they come not just from the same component of that one organ – the Supreme Court; within the Supreme Court, ever so often they come from the same judge! The passages that have been cited from the State of Rajasthan and others case, from Ajay Hasia are the proclamations of the same judge as the declarations of self-denial in the Bearer Bonds case!

Chapter 8. The cascading effect

▪ judges consider each issue as an issue in itself – isolated from the context of society, often independently of the consequences that it requires little imagination to see will follow from it. Furthermore, different principles, different encapsulations of a principle impress themselves upon the judges on different occasions

▪ Notice the three ingredients that have combined to further bankrupt the organizations concerned. Foremost, a weak executive – it kept giving in at every turn. Second, the singular preoccupation of the judiciary: equity. This, the courts decreed, entailed that one set after another must be paid what had originally been granted to the engineers of the Punjab and Haryana State Electricity Boards – irrespective of the financial condition of the organization, irrespective of the financial consequences for the organization of doing so. Third, as Badgaiyan pinpoints, ‘equity’ translated into different ‘principles’ at different stages: DESU must give the same emoluments as the Punjab and Haryana State Electricity Boards on the principle, ‘Equal pay for equal work’; next, non-technical staff must be in the same set of scales as the technical staff on the principle, ‘Inter se parity in the same organization’.

Chapter 11. Some rules of thumb

▪ At the seminar, I asked the police commissioner of Delhi for the total budget of the Delhi Police. Rs 700 crore, he said. The previous night the premises of a local businessman-politico, a member of Laloo Yadav’s Rashtriya Janata Dal, had been raided – the police was said to have uncovered properties worth Rs 500 crore. Imagine the kind of resources such a man will be able to mobilize from that stock of Rs 500 crores

▪ no war has been won by deploying ‘minimum force’. Wars have invariably been won by overwhelming the enemy with force. So, not only is the admonition empty in that it specifies neither a level of force which would be acceptable, nor a criterion by which such a level might be determined by the officer suddenly confronted by a band of terrorists. It is just plain wrong.

▪ It is fine to say, ‘But the cure was to get the institutions working first.’ The fact of life was different: terrorism had to be fought there and then, the war had to be fought in that circumstance. The fight could not be postponed till the other institutions had once again begun to do their job. Indeed, the precondition for the other institutions to recommence their work was that terrorism be vanquished.

Chapter 14. The fate of remedies

▪ There is also that basic feature of institutions in India to which I have already drawn attention: when a problem becomes so large that ignoring it is no longer possible, we set up an institution to deal with it; but the personnel who man the new institution are of the same type – ever so often, they are the very individuals – as manned the old institution; worse, the new institution continues to work in the same ways as the old institutions it was supposed to replace worked; no surprise then that in no time the new institution metamorphoses into a clone of the one it was meant to replace.

▪ The Tribunals were specifically given the authority to decline requests for that plague of Indian courts – adjournments. The cases were to be settled within six months. Step by step the Tribunals have become clones of courts. In L. Chandra Kumar, the Supreme Court declared that, the specific provision of the law notwithstanding, appeals against rulings of Tribunals would be heard by High Courts. Adjournments have become the order of the day.

Chapter 16. Activism, and its prerequisites

▪ After all, once the legislature, even one with the entire opposition in jail, amends the Preamble to the Constitution to proclaim us to be not just a ‘Sovereign Democratic Republic’ but also a ‘Socialist Secular’ one, the courts can scarcely be blamed for advancing ‘Socialism’ through the sorts of judgments we have been considering.

▪ In fact, ever so often when the courts have opened an aperture for the executive and the legislatures to pull back from the course on which their populism had set the country – in the Shah Bano judgment, in the series of judgments on reservations that preceded Indira Sawhney, indeed in Indira Sawhney itself – the legislatures and the Executive have smothered the opportunity: they have amended the law, even the Constitution so as to stuff the openings that the judges had drilled.

▪ The fact is that the law has little intellectual or structural resistance to outside influences, influences that should properly remain outside. The striking, and peculiar, fact about a field of study so old and so intensively cultivated by men and women of first-rate intelligence is that the law possesses very little theory about itself. I once heard George Stigler remark with some astonishment, ‘You lawyers have nothing of your own. You borrow from the social sciences, but you have no discipline, no core, of your own.’ And, a few scattered insights here and there aside, he was right. This theoretical emptiness at its center makes law, particularly constitutional law, unstable, a ship with a great deal of sail but a very shallow keel, vulnerable to the winds of intellectual or moral fashion, which it then validates as the commands of our most basic compact.

▪ from judgments of the first twenty years that set up dykes for the individual against the state, to judgments during the Emergency that demolished these, to the ‘progressive’, ‘socialist’ not to say compensatory ones of the post- Emergency phase.

▪ All organs of the state, therefore, have to strike a balance between competing ends. My quarrel with the progressives is in the balance they have thought appropriate. Given the circumstances in which the country is placed, I feel that the balance needs to be tilted from the individual towards the community, from rights of the individual towards his obligations, from the rights of the individual employee to what would improve the work culture of our enterprises, from human rights to the security of the state, from equality to merit and growth, from parts – castes, religious minorities, etc. – to the whole.

Chapter 17. A premise we cannot afford

▪ In the twenty years that he practised law Gandhiji operated on the exact opposite of this rule. ‘I warned every client at the outset,’ he wrote later, ‘that he should not expect me to take up a false case or to coach the witnesses, with the result that I built up such a reputation that no false cases used to come to me. …’

▪ The reason for this was simplicity itself. ‘The duty of a lawyer,’ he wrote, ‘is always to place before the judges, and to help them arrive at the truth, not to prove the guilty as innocent.’ A lawyer may be retained and remunerated by an individual in a particular case, he wrote, but he has ‘a prior and perpetual retainer on behalf of truth and justice’.

Chapter 18. We can’t save the country on a part-time basis

▪ Each profession therefore ought to reflect on both – the effect of the overall thrust of its work, and also on the meta- consequences of that work. There is the obvious place to start: the clichés of the profession. For each profession has devised a set of operating rules – of ‘principles’ which are really nothing but rationalizations for the kind of conduct we have been discussing. The lawyer’s ‘principle’ we encountered, that he must defend anyone and everyone who comes to him, his ‘principle’ that his job is to put up the best possible defence for the accused and not to be the judge. The journalist’s ‘principle’ of ‘neutrality’ by which he rationalizes being neutral between the jihadi and the one fighting the fire, between the terrorist and the soldier. The civil servant’s rationalization for dressing up the file: ‘But they are the elected representatives of the people, and in a democracy they are the masters.’ Once a society accepts such ‘principles’ it cannot pretend to be surprised when it is engulfed by wrongdoing.

▪ The antidote to professionalism, he says, is ‘amateurism’ – the amateur, Said explains, being the person who engages in an activity out of care and affection, rather than because it will bring profit, or because that is what will advance him within the specialization