Anita Gets Bail

Author: Arun Shourie

• As our subject is what the High Court did rather than the malfeasance of Jayalalithaa and associates, how Kumaraswamy dealt with the loans is of even greater interest.

• Presumably, as this did not prove sufficient, Kumaraswamy topped the total by his special contribution to our jurisprudence—the ‘arithmetical error’: even if all the additions that Kumaraswamy had incorporated were taken into account at face value, the additional resources available through loans would have been Rs 10.7 crore: he just took that to read Rs. 24.2 crore.

• Incidentally, the Indian Bank was and remains a public sector bank—the felicity with which this lot acquired loans from it proves once again what I have said all along: the only truly ‘private sector’ in India is the public sector: it is the private property of whoever happens to be in office.

• Kumaraswamy was not deterred by such trivialities—of loans not having been disbursed, of loans having been received after the check period, of loans having been repaid.

• Kumaraswamy was not deterred by such trivialities—of loans not having been disbursed, of loans having been received after the check period, of loans having been repaid. In each and every instance, he added the nominal value of the loan that was sanctioned to the pool of resources that Jayalalithaa and associates had for acquiring assets. Just ‘errors’?

• while the DVAC and the trial court had estimated additional and new construction to be worth Rs 28 crore, the High Court pulled the estimate down drastically—to Rs 5 crore.

• The Supreme Court found that there was just no basis for what Kumaraswamy had done—that his estimates were neither realistic nor rational, that they were ‘patently erroneous’, they were ‘visibly wrong’, and deserved to be rejected.

• So many of the ‘firms’ had been registered on the same day. So many of them had given the same address.

• Banks and persons associated with the ‘firms’ were given ‘a blanket instruction’ by the chief minister that they should act in accordance with instructions that Sasikala would give them from time to time.

• By the time the Supreme Court judgment came, Jayalalithaa had died. Kumaraswamy had retired.

• Accordingly, they directed that the case be shifted to the neighbouring state of Karnataka. Henceforth, in consultation with the Chief Justice of the Karnataka High Court, the Government of Karnataka would constitute a special court for the case, it would appoint the public prosecutor, and so on.

• The accused argued that doing so would delay the trial, and the Supreme Court itself had directed that the trial be concluded expeditiously. You have to appreciate the audacity of the argument: here were the very persons who had been dragging the case out by every conceivable device for over fifteen years arguing that a step was wrong, as it would prolong the trial!

• The net result? The accused got to choose the public prosecutor!

• She also acknowledged that in several sections—like Sections 209, 406, 407, 409—the words ‘case’, ‘trial’, ‘appeal’ had been used to signify different stages of a case. But she got around that, holding that the legislature had left it to the courts to decide the ambit of the word ‘case’ with reference to the particular context in which it was being used and the one which they were considering.

• The reasons for going through the reasoning of the two judges would have become apparent by now. Both of them were faced with the same facts. They inferred different conclusions from them. Both cited the same provisions of law. They drew different deductions from them.

• From the point of view of judges and courts, that they often differ in what they infer from the facts, in what they glean from earlier judgments, and what they take the meaning of law to be is but natural. That is why we do not have just one judge. Nor are the judges robots. Each must exercise his own mind on facts and precedents and the law.

• does lead to the apprehension that the outcome of his case will too often come to depend on chance—on before whom his case lands.

• uncertainty: it does lead to the apprehension that the outcome of his case will too often come to depend on chance—on before whom his case lands.

• it does lead to the apprehension that the outcome of his case will too often come to depend on chance—on before whom his case lands.

• In the event, as the two judges had come to different conclusions, they referred the matter to a larger bench.

• My appearance in the above 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’.

• That litigants and lawyers can be impelled to shun these devices is evident from the experience of other countries.

• Why is it that those convicted in the US do not go on filing appeals? One part of the answer is simple: because they run the real prospect that, if their appeal is found to be without foundation, the sentence will be severely enhanced.

• Why is it that lawyers and litigants do not deploy these devices in the UK? Again, one part of the answer is simple: because very high costs are imposed on those who are found to be using the proceedings in court to escape or even delay justice.

• There is therefore an urgent need for the legislature and the Law Commission of India to revisit the provisions relating to costs and compensatory costs contained in Section 35 and 35-A of the Code.’

• No rules seemed to govern what the court would decree about the party to whom the costs should be paid.

• Now, it is nobody’s case that the quantum of costs and penalties should be determined uniformly and mechanically, and that courts must have no discretion. After all, no one would want the costs and penalties to be put so high that the poor widow and the giant corporation should risk having to pay an identical amount.

• The punishment for false evidence is imprisonment from three to seven years, and fine.38 Was even one of those making the somersault punished with imprisonment for even one day?

• If precedent is what we need—well, the UK officially publishes a ‘List of vexatious litigants, banned from starting court cases without permission’, and updates it from time to time.

• We are all against dowry when our daughters are getting married, he said. But when our sons are getting married, we want ancient traditions to be preserved! Much the same goes for our attitudes towards judicial activism.

• The Supreme Court passed its far-reaching orders in Hussainara Khatoon2 and similar cases after we established beyond doubt that the executive had been inhuman in regard to undertrials.

• Exactly the same sequence unfolded in regard to misuse of governors. It has long been accepted that when it comes to the grounds on which a governor has recommended President’s Rule, the courts shall not examine the validity of the grounds. But so manifestly partisan have the actions of governors been on occasion that the courts have had no difficulty in getting around this rule of self-denial by the make-believe that, while they shall not examine the validity of the grounds on which the governor recommended a course of action, they shall examine whether he had any grounds at all.

• Hence, I would urge Lenin’s maxim, ‘Fewer but better’—that is, if the issue is of such importance that the court feels compelled to step outside its traditional bounds, it must follow up its decision and institute a mechanism to ensure that its directives are carried out.

• However, over the decades the police have become

• However, over the decades the police have become the private armies of those who are in office.

• Lathi charge, false encounters … such things have become synonymous with the word ‘police’.

• In its 120th report, the Law Commission recommended that the number of judges for every ten lakh Indians, which was 10.5, should be raised to 50.

• Courts are overcrowded. There is no place even to house records. Fire prevention equipment is wholly inadequate. Courts are functioning from premises rented from private parties.

• The lesson is obvious. The court must, from time to time, and suo motu as the expression goes, do a sort of random check whether its directions are being obeyed or not.

• And every act of noncompliance or partial compliance that goes unpunished emboldens those who will do wrong, and thus makes the next one that much more likely.

• for seventy years, the judiciary—in particular, the Supreme Court—has been the dyke that has preserved free speech.

• the singular check that exists today against misuse of its power by Parliament is in place solely because of what the Supreme Court decided in Kesavananda Bharati

• The number of judges one has to convince to bring about a change is far fewer than the number one must convince to bring about the same change via legislatures, for instance.

• was able to request our cartoonist to draw a cartoon—a truthful one—with the prime minister slumped on one of our broken-down desks, with a banner ‘Indian Express’ behind him, and a small board lying on the desk in front of him with the legend ‘Circulation Manager’.

• First, of course, the judiciary must stand firm against the slightest attempt to whittle its powers and ambit—as it has recently done in thwarting the attempt of the political executive to appropriate greater power for itself by tilting the membership of the proposed Judicial Appointments Commission. Second, it must deliver justice—swift, certain, unambiguous—so that the people see the judiciary as their shield, so that when the executive raises a hand against the judiciary the people feel that it is raising a hand against them. Third, and most important, the reputation of judges must be such that—even in our times when everyone is only too ready to believe the worst about everyone else—no one should even entertain the allegation that they will ever do anything for any collateral purpose or consideration.

• Institutions run, the state runs, on iqbal, on the esteem in which people hold

• Institutions run, the state runs, on iqbal, on the esteem in which people hold it. That

• Institutions run, the state runs, on iqbal, on the esteem in which people hold it.

• We have seen that since Veeraswami’s case,2 an inquiry into the conduct of a judge cannot be initiated without the permission of the Chief Justice.

• Senior judges in particular came to be excluded from sensitive cases: the Sahara-Birla diaries case was assigned to a bench headed by Justice Arun Mishra overlooking ten benches that had judges who had more experience and seniority—this was a case about which the rulers were deeply apprehensive, for their names, along with those of several other prominent persons, figured as having received huge piles of monies; similarly, the Kalikho Pul case which we have encountered earlier was assigned to a bench overlooking eleven benches consisting of judges of higher seniority and experience.14 Worse,

• Senior judges in particular came to be excluded from sensitive cases:

• the Kalikho Pul case which we have encountered earlier was assigned to a bench overlooking eleven benches consisting of judges of higher seniority and experience.

• Worse, senior judges began to be conspicuously excluded even from constitutional cases—Justice A.P.

• Worse, senior judges began to be conspicuously excluded even from constitutional cases—Justice

• Worse, senior judges began to be conspicuously excluded even from constitutional cases—Justice A.P. Shah, the former Chief

• Dipak Misra had constituted constitutional benches in seven cases; each of these was headed by himself, and not one of the four senior-most judges figured in any one of them.

• he may have been the most upright of judges but his family’s proximity to the ruling party was well known and, on the incessantly repeated maxim that justice must not only be done but be seen to be done, this seemed just too much to disregard as a mere coincidence.

• The judges were confronted by what Gandhiji used to call ‘an intolerable wrong’. They had tried other methods: they had written to the Chief Justice, they had met him. To no consequence. They were left with no alternative: they made known their misgivings to the people.

• Mr Jayaprakash Narayan had passed away—weakened as much by the failures and breakup of the Janata Party as by the collapse of his kidneys.

• In two editions of his critical exposition of our Constitution, Mr H.M. Seervai had included a special annexure on Justice Krishna Iyer’s prose and the perils it could pose in interpreting what he had meant.

• The opening paragraph of the judgment of Justice Dipak Misra in the defamation case2 has often been cited in this context, and many a passage from it has become famous.

• If, in turn, I were asked, I would point out that Ibsen, Milton and de Tocqueville are not likely to carry much weight in Haryana: strict and prompt punishments of the offenders will do more.

• If instead of quoting from earlier judgments, including one’s own, if instead of once again listing the provisions of the Act, if instead of once again reproducing directions that the Supreme Court had given repeatedly, the judges had actually brought some consequences to bear on those whose duty it was to implement the directions and who had not done so—would that not have been a real step towards mitigating the evil?

• An Irish proverb goes on to say that the beginning of health is sleep. The state of sleep has been described by Homer in the famous epic Iliad as ‘sleep is the twin of death’.

• On reading such passages I am reminded of what a politician said as we stood chatting and the photographers went on clicking their cameras: ‘Arey bhaai, itnaa kum self-confidence hai kyaa? Jahaan ek photo se kaam chal jayegaa, aap click kiye hi jaa rahey ho.’18

• To summarize, no mechanical solution will work: neither lateral entry from the Bar, nor elevation from among district

• To summarize, no mechanical solution will work: neither lateral entry from the Bar, nor elevation from among district judges. Many more things are required. Among these is one that seems to me to be

• To summarize, no mechanical solution will work: neither lateral entry from the Bar, nor elevation from among district judges. Many more things are required.

• We just about escaped the Supreme Court stepping in to regulate, to the point of banning ‘sardar jokes’—only because the Chief Justice who was pursuing the matter retired.

• The courts have repeatedly invoked the adage, ‘The history of liberty is the history of procedural safeguards.’

• In short, while delivering judgments, especially while penning grandiloquent passages and crafting enlargements of settled principles, judges must visualize consequences for the case at hand, of course.

• Thereby, the bigger the crook, the craftier the lawyer he is able to field.

• Simple eyewitness descriptions of what transpired in the court during the day will open people’s eyes to the real state of affairs, and, I believe, become a potent force for improvement.

• The basic reason that judgments of the kind we have encountered above continue to be handed down is that the judges

• The basic reason that judgments of the kind we have encountered above continue to be handed down is that the judges are confident that few will read them, and, the few that do, will keep silent—most

• The basic reason that judgments of the kind we have encountered above continue to be handed down is that the judges are confident that few will read them, and, the few that do, will keep silent—most of this tiny number will be lawyers,

• Each of us can take up one theme, study the judgments that are handed down on that subject, and publish the results of our scrutiny. Even if we cannot publish them in the mass media, we can use the new media—the Internet—to broadcast our findings.