Planned, Systematic Assault on Judiciary by Govt: Arun Shourie

The government has a totalitarian mentality, the CJI lacks leadership, and Judge Loya case is full of infirmities

6 min read
Arun Shourie speaks at the launch of his new book ‘Anita Gets Bail’ at the India International Centre on 1 May 2018

Former Minister Arun Shourie launched a blistering attack on the government, accusing it of trying to undermine the courts, while also criticising Chief Justice of India Dipak Misra over his handling of recent crises in the judiciary, and the Supreme Court’s decision in the Judge Loya case.

Shourie was speaking at the launch of his new book Anita Gets Bail, published by Harper Collins, which describes the numerous problems faced by the courts, which have eroded public trust in them and their status as protectors of justice in the country.

According to the veteran journalist and economist, the government is deliberately trying to do this, based on their “totalitarian” mentality:

‘The political executive has systematically worked to put the judiciary into this position of the supplicant. Please do not think that there is anything except a well-planned, systematic assault. It does not come from just one politician but from an entire ideology because of its objectives. As Mr Yashwant Sinha has been emphasising to all of us, the mentality is totalitarian. And that means total control over the geographical space, over the institutional space, so that no institution will be left standing.’

“If Judiciary Goes, How Can Democracy Survive?”

Shourie feels that it is essential for the judiciary to remain a strong pillar of society especially because the media is failing to do its job of holding the government accountable - though he did note that “unconventional media’ were still able to do a good job.

The Quint was able to speak with him after the event, where he discussed his concerns regarding the judiciary, the Justice KM Joseph situation, the Judge Loya case, and his criticisms of Chief Justice Dipak Misra. He also said he agreed with the attempted motion to impeach the CJI, and that there was enough evidence to justify this.

You can view the whole interview here:

Government is Making us Accustomed to a New ‘Normal’

In his full speech at the book launch, Shourie warned of the government’s continuous attempts to undermine the judiciary, and how it is not deterred even when it faces a setback like the rejection of NJAC in 2015.

Shourie highlighted the recent controversy over the Collegium’s recommendation to appoint Justice KM Joseph to the Supreme Court as another example of the government’s attempts to erode the judiciary.

He suggested that CJI Misra should have put his foot down and refused to appoint Indu Malhotra as a Supreme Court judge, unless Justice Joseph was appointed as a Supreme Court judge as well at the same time. In his view, Justice Malhotra herself should have refused to take her oath till this was done, reasoning that:

‘If you do not stop them at every juncture, they will go on with their design. More institutions are felled by erosion and by termites within, than a sudden big blow from outside.’

According to Shourie, this erosion was being done by accustoming us to a “new normal” where violations of the law were trivialised.

Examples of this included the way the new Deputy CM of Jammu & Kashmir called the Kathua rape and murder a ‘small thing’, and the way more than 50 witnesses have turned hostile in the Sohrabuddin Sheikh case.

(From L-R) Arun Shourie, his son Aditya Shourie, Fali Nariman, Justice AP Shah and Justice Lodha launch the book
(From L-R) Arun Shourie, his son Aditya Shourie, Fali Nariman, Justice AP Shah and Justice Lodha launch the book
(Photo: PTI)

Failure of Leadership by CJI Dipak Misra

Shourie’s speech also took aim at current CJI Dipak Misra, saying that the way in which he was performing his role was of such convenience to the government, that it could only be according to the design of the government.

He was particularly critical of the CJI’s insistence on reaffirming his power as ‘master of the roster’, which in his opinion weakened the CJI’s credibility. He also noted that that since the CJI had been sworn in, all the Constitution Benches set up to hear big cases had not included any of the other senior judges of the Court.

This has become a pattern under the CJI, according to Shourie, including in the Judge Loya case. which he feels was full of infirmities.

“The present situation shows a failure of leadership,” said Shourie, “he has to do something.”

As a result, he urged senior lawyers and judges to counsel not the other senior judges, but instead advise the CJI himself on the consequences of the current situation.

This was perhaps a pointed rebuttal to criticism, of the four senior judges who held the press conference in January, by eminent lawyers like Soli Sorabjee and Fali Nariman, who were also present.

CJI Dipak Misra
CJI Dipak Misra
(File Photo: IANS)

The CJI was not the only one he singled out for criticism. He also offered a damning indictment of the professionals - lawyers and journalists - who enable the “evil” being done by the government.

“We make ourselves available as Albert Speers. We must look at the regime and situation as a whole and when the character as a whole is of a particular nature, we must at the least withdraw cooperation from it.”

He went on to condemn the lawyers who represented parties in the Judge Loya case despite having represented BJP President Amit Shah in the Sohrabuddin Sheikh case.

Shourie also slammed journalists for being disingenuous and not taking a stand, in the supposed aim of telling both sides of the story.

He concluded by asking everyone, especially professionals, to take the steps they could to save our institutions and thereby save the country.

All these issues and more are addressed in Anita Gets Bail, which derives its name from the difficulties faced by Shourie’s wife, who was implicated in a case which took years to be resolved in her favour.

Former CJI Lodha: CJI has to Show Statesmanship

Justice Lodha at the event
Justice Lodha at the event
(Photo: PTI)

Shourie’s comments followed an address by former CJI RM Lodha as part of the book launch, who had also expressed concerns over the independence of the judiciary. According to him:

‘When judges do not ensure independence of the judiciary, it is very bad for democracy. For a democracy to thrive, independence of judiciary is a must, and this has to come from the top.’

Justice Lodha repeatedly emphasised the need for the judiciary to regain a spirit of collegiality, to find common ground and set aside any differences between the judges, so that the Supreme Court could move forward. For this to happen, however, he warned that the CJI had to take the lead.

‘I always felt that independence of the judiciary is non-negotiable. And it is for the Chief Justice, who is the leader of the court, to take that forward. He has to show his statesmanship qualities. He must take his brothers and sisters forward.’

Justice Lodha had also addressed the ‘master of the roster’ controversy, noting that while the CJI undoubtedly holds that position, that doesn’t give him the power to do what he wants - distribution of cases has to be fair and in the interests of the court.

Justice AP Shah: Supreme Court’s Judge Loya Decision “Utterly Wrong”

Justice AP Shah at the event
Justice AP Shah at the event
(Photo: PTI)

Shourie’s speech was incredibly powerful, as was Justice Lodha’s (although more reserved), but no less was a powerhouse speech by former Chief Justice of the Delhi High Court AP Shah, who slammed the Supreme Court’s decision to refuse an investigation into Judge Loya’s death.

Justice Shah offered a withering critique of the reasoning provided by the apex court for its decision, and quoted another commentator, Alok Prasanna Kumar who felt the judgment showed “that the court was not interested in finding out the truth.”

In sum, Justice Shah felt that:

‘The judgment – in my opinion – is utterly wrong, and jurisprudentially incorrect on so very many counts.’

You can read more about Justice Shah’s speech here.

Veteran senior advocate Fali Nariman also spoke at the book launch, urging a need for more judges and courts to deal with all the cases we face, and warning against drafting too many new laws, and the creation of new tribunals, saying: “In our desire to ensure justice, we often unduly delay it.”

Senior journalist Rajdeep Sardesai was asked by Shourie to read out a couple of excerpts from the book, that drew several laughs from the audience.

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