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Courts and their Judgements: Premises, Prerequisites, Consequences
First published in 2001, Courts and Their Judgments soon became a pioneering work on the subject. It raised important questions on the functioning of our judiciary— questions that continue to be as relevant today.
Do judges merely enforce and interpret the law? Or do they at times interpolate words into statutes, even into the Constitution? Where does interpretation end and rewriting commence? How is it that in one judgment a court declares that it is the right of ministers to determine how far and in what direction a criminal investigation shall be carried, and in another the same court, indeed the same judge, decides to as good as monitor an investigation? How is it that in some cases a court delves into detailed facts that do not just bear on the case, but on why a law was passed, and in another the same court lays it down as a principle that facts need not be considered once the legislature has passed a law?
The failure of other institutions to discharge their duties has compelled the courts to step far outside their traditional role. In doing so, have they stretched the law and Constitution too far? Has the intervention been effective? Courts and Their Judgments looks at judicial activism through some brilliantly argued cases and at the need for and pitfalls of such overreach. With its searing answers, evidence, dissection of judgments on these and other issues, the book remains a must-read for strengthening the country.
'An outstanding effort' - Chief Justice Venkatachaliah
'An extraordinary book' - Fali S. Nariman
'Unputdownable' - Ashok Desai
Do judges merely enforce and interpret the law? Or do they at times interpolate words into statutes, even into the Constitution? Where does interpretation end and rewriting commence? How is it that in one judgment a court declares that it is the right of ministers to determine how far and in what direction a criminal investigation shall be carried, and in another the same court, indeed the same judge, decides to as good as monitor an investigation? How is it that in some cases a court delves into detailed facts that do not just bear on the case, but on why a law was passed, and in another the same court lays it down as a principle that facts need not be considered once the legislature has passed a law?
The failure of other institutions to discharge their duties has compelled the courts to step far outside their traditional role. In doing so, have they stretched the law and Constitution too far? Has the intervention been effective? Courts and Their Judgments looks at judicial activism through some brilliantly argued cases and at the need for and pitfalls of such overreach. With its searing answers, evidence, dissection of judgments on these and other issues, the book remains a must-read for strengthening the country.
'An outstanding effort' - Chief Justice Venkatachaliah
'An extraordinary book' - Fali S. Nariman
'Unputdownable' - Ashok Desai
454 pages, Paperback
First published September 1, 2001
61 people are currently reading
486 people want to read
About the author
Arun Shourie
38 books300 followersIndian economist, journalist, author and politician.
He has worked as an economist with the World Bank, a consultant to the Planning Commission of India, editor of the Indian Express and The Times of India and a Minister of Communications and Information Technology in the Vajpayee Ministry (1998–2004). He was awarded the Ramon Magsaysay Award in 1982 and the Padma Bhushan in 1990.
Popularly perceived as one of the main Hindu nationalist intellectuals during the 90s and early 2000s.
He has worked as an economist with the World Bank, a consultant to the Planning Commission of India, editor of the Indian Express and The Times of India and a Minister of Communications and Information Technology in the Vajpayee Ministry (1998–2004). He was awarded the Ramon Magsaysay Award in 1982 and the Padma Bhushan in 1990.
Popularly perceived as one of the main Hindu nationalist intellectuals during the 90s and early 2000s.
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Displaying 1 - 14 of 14 reviews
August 19, 2016
In his well researched book “Courts and their Judgments” , Arun Shourie holds that while the executive is responsible for the existing paralysis in the country no less important is the contribution of progressive rulings of some activists Judges on Govt. functioning. And Arun Shourie who was an activist journalist before holding the post of Minister of the Govt. of India has the advantage of directly seeing the effect of such orders on Govt. functioning. The author goes on to show how some of the activists Judges of higher judiciary are tying themselves in knots by taking the executive functions. In the first chapter of the book, he has given an interesting account of the problem of bonded labourers in quarries around Delhi. Treating a letter written from Swami Agnivesh about this issue to the Supreme Court as PIL the Apex Court had issued certain directions in 1982. But after nearly twenty years of direct supervision by the Apex Court there was little progress and such over zealousness did little to touch the actual problem. Mr. Shourie makes an interesting observation that the activism of some Judges might be due to their complicit silence during emergency. In this context he refers to the much quoted and maligned orders in ADM Jabalpur case – “ monument to cowardice dressed in legalism”
Arun Shourie has also pointed out how the Supreme Court read Article 21 of the Constitution, which is couched in negative language and is intended to protect persons against arbitrary arrest and restraint and also against physical coercion by organs of the state, to confer positive rights. This resulted in conferring positive rights to life and liberty by including ever expanding list of desirables (one of such desirables being the right to have medical treatment in Escorts Hospital, Delhi) that would make a person’s life a life of dignity and fulfillment. The activism of the some Supreme Court Judges is against the spirit of the constitution which has clearly qualified the term liberty by adding personal to the word. And this has been going on regardless the question of enforceability of such orders or of the capacity of the state to find resources for implementing the orders. Moreover, the slow paced judiciary is yet to wake up to the speed with which technology has changed. The tendency on the part of some judges to consider each issue as an issue itself - isolated from the context of society, often independently of consequence results in effects not imagined by them. Not that Mr. Shourie is soft on executive. In his view it is the weak executive by shirking the responsibility and prevaricating on taking quick decisions has allowed the Judiciary to take many executive functions on its hands. He rightly points out that the Higher Judiciary, which holds that it has unfettered right to enforce its orders, has failed to control the bar and take action against some lawyers for their unprofessional act of going on strike at the drop of a hat. Referring to the judgments of the activist Judges driven by socialist ideology Shourie has referred to a quotation of Judge Bork of USA and modified the quotation in the Indian context as follows: "The theoretical emptiness at its center makes law, particularly constitutional law, unstable, a ship with a great deal of sail but a a very shallow keel, vulnerable to fashionable cliches and political demagogy of our times". Thus, the operation of the judicial process in the country has resulted in a situation where “ so many who are guilty escape the law and the simple and honest are buried”. Anybody who had a brush with the judicial system will hardly dispute many of the observations of Mr. Shourie. Though a criticism may be leveled against the author of rightist slant in his views, it cannot be disputed that a lot of hard work has been done in writing this book and the arguments of the author are based on logic. Nobody has succinctly put that liberal interpretation of the constitution by some of the activists Judges has benefited a class of citizens, who have the resources to approach the highest courts in the country, by exploiting all the loopholes in the system though undeserving of such benefits A must read book for not only aspiring law students but anybody who has a genuine interest in the functioning of Judicial system in our country.
Arun Shourie has also pointed out how the Supreme Court read Article 21 of the Constitution, which is couched in negative language and is intended to protect persons against arbitrary arrest and restraint and also against physical coercion by organs of the state, to confer positive rights. This resulted in conferring positive rights to life and liberty by including ever expanding list of desirables (one of such desirables being the right to have medical treatment in Escorts Hospital, Delhi) that would make a person’s life a life of dignity and fulfillment. The activism of the some Supreme Court Judges is against the spirit of the constitution which has clearly qualified the term liberty by adding personal to the word. And this has been going on regardless the question of enforceability of such orders or of the capacity of the state to find resources for implementing the orders. Moreover, the slow paced judiciary is yet to wake up to the speed with which technology has changed. The tendency on the part of some judges to consider each issue as an issue itself - isolated from the context of society, often independently of consequence results in effects not imagined by them. Not that Mr. Shourie is soft on executive. In his view it is the weak executive by shirking the responsibility and prevaricating on taking quick decisions has allowed the Judiciary to take many executive functions on its hands. He rightly points out that the Higher Judiciary, which holds that it has unfettered right to enforce its orders, has failed to control the bar and take action against some lawyers for their unprofessional act of going on strike at the drop of a hat. Referring to the judgments of the activist Judges driven by socialist ideology Shourie has referred to a quotation of Judge Bork of USA and modified the quotation in the Indian context as follows: "The theoretical emptiness at its center makes law, particularly constitutional law, unstable, a ship with a great deal of sail but a a very shallow keel, vulnerable to fashionable cliches and political demagogy of our times". Thus, the operation of the judicial process in the country has resulted in a situation where “ so many who are guilty escape the law and the simple and honest are buried”. Anybody who had a brush with the judicial system will hardly dispute many of the observations of Mr. Shourie. Though a criticism may be leveled against the author of rightist slant in his views, it cannot be disputed that a lot of hard work has been done in writing this book and the arguments of the author are based on logic. Nobody has succinctly put that liberal interpretation of the constitution by some of the activists Judges has benefited a class of citizens, who have the resources to approach the highest courts in the country, by exploiting all the loopholes in the system though undeserving of such benefits A must read book for not only aspiring law students but anybody who has a genuine interest in the functioning of Judicial system in our country.
February 21, 2020
3.5/5 As usual Shourie is exhaustive, convincing, forceful, depressing, a little ideologically biased and this is again a book worth reading (and skimming). Doubly so because Shourie is perhaps the only remaining RW/conservative intellectual in India and some of these ideas are probably in the “I dont know I dont know” for most.
I read “Anita gets bail” also by the author a few months ago and it too put our legal process under a lens. And both books tell me - the worst that you have assumed is true and more. And is there any hope for the future ?
In my opinion - NO. Considet this - With the introduction of GST we had a chance of rebooting our indirect tax system 2.5 years ago. Messy laws, pathetic website and software, authoritarian govt and its officers, confused and ignorant accountants and a public that doesnt want to spend a movie-length time to get basic knowledge of daily use GST - we were always destined to be like this !
I read “Anita gets bail” also by the author a few months ago and it too put our legal process under a lens. And both books tell me - the worst that you have assumed is true and more. And is there any hope for the future ?
In my opinion - NO. Considet this - With the introduction of GST we had a chance of rebooting our indirect tax system 2.5 years ago. Messy laws, pathetic website and software, authoritarian govt and its officers, confused and ignorant accountants and a public that doesnt want to spend a movie-length time to get basic knowledge of daily use GST - we were always destined to be like this !
July 23, 2018
Although I think I wasn't the target audience for the book, thought some of the arguments were interesting. The primary concern people raise about the Indian judiciary is its lack of speed. Think Shourie brought out many more issues that I haven't seen as often in most literature.
April 29, 2016
Very informative but too rhetoric and repetitive. Will test the limits of one's patience. But worth reading once.
January 4, 2020
It’s an interesting account of indian judiciary which might tremble your faith in the judicial system. Author argues that the system is very slow, unaccountable to anyone, powerless at times, muddled more in procedure than result and over active where it shouldn’t be.
But that’s the truth. The language used by the author could’ve been a little simple and book could’ve been a little smaller.
But very brave attempt and it has to be read if one has to understand practicality of the courts.
Sad but true affair.
It gives feeling that was the judicial system during Mughal period was more result oriented and cheap!
But that’s the truth. The language used by the author could’ve been a little simple and book could’ve been a little smaller.
But very brave attempt and it has to be read if one has to understand practicality of the courts.
Sad but true affair.
It gives feeling that was the judicial system during Mughal period was more result oriented and cheap!
September 11, 2012
Another must from the renowned author Arun Shourie.He examines how the Indian judiciary especially the Supreme Court has been functioning over the years. He traces how the concept of reservation deviated from what the makers of constitution had in mind.
July 16, 2023
The book is a sombre tale of the judicial system; the activism, wilful ignorance and short-sightedness involved therein. The author exposes gaping holes in the judicial system, and how these holes are enabled by the judges and exploited by the lawyers, while the nation suffers as a whole. It also details the human nature of judges and the swinging nature of the political environment, and thus morals, which enable a range of interpretation of the same subject from the same court. The book never fails to list the repercussions of the judgements it mentions. Idealogical inclinations of the author, e.g. anti-socialism, do find their way into the book, but they generally are in broader contexts, like the wave of socialism sponsoring socialist judgments.
The book remains balanced, and can not be called a bashing of judicial system alone. It makes sure to highlight that a weak executive maybe a bigger problem, but the heap of problems only rises upwards due to the some of the paths judiciary chooses to take.
I had read another book written by a lawyer before this one, so the legalese didn't trouble me as much. But it still is a hurdle for anyone unfamiliar with that kind of style and structure. A lawyer must supply evidence of repetition for establishing a pattern, and thus is the task undertaken in this book. The repetition may compel the reader to skim over some of the text and just accept the argument the author is making.
Even as it comes with these issues, the kind of research that has gone into creating this manuscript doesn't allow me to take away any stars from the rating.
The book remains balanced, and can not be called a bashing of judicial system alone. It makes sure to highlight that a weak executive maybe a bigger problem, but the heap of problems only rises upwards due to the some of the paths judiciary chooses to take.
I had read another book written by a lawyer before this one, so the legalese didn't trouble me as much. But it still is a hurdle for anyone unfamiliar with that kind of style and structure. A lawyer must supply evidence of repetition for establishing a pattern, and thus is the task undertaken in this book. The repetition may compel the reader to skim over some of the text and just accept the argument the author is making.
Even as it comes with these issues, the kind of research that has gone into creating this manuscript doesn't allow me to take away any stars from the rating.
June 30, 2021
This book has never been more relevant than now. Arun Shourie is at his best as he writes about the rot that has engulfed the country's legal system. We often hear the term "judicial overreach" these days but this problem has existed for many years now. Overzealous activist judges have given such judgements that it has paralysed many things in India. A simple thing like sacking a government officer for non-performance or corrupt practices can turn into a quagmire with the case getting stuck in the courts of this country. Massive and critical infrastructural works get stuck in litigation and progress just does not happen.
In the scenario that has been created, it is far easy for a civil servant to just stick to status quo rather than risk reforms that would invite the trouble of litigations, courts, and lawyers. In India, the rich can escape punishment thanks to having access to the best lawyers whereas the less privileged ones are harassed continuously by the arms of law. The judiciary has given such activist judgements without even bothering about what kind of impact that they can have in the country as numerous instances in the book show. Moreover, it is hilarious to see how the same judge has given conflicting judgements in different cases!
However, Shourie rightly says that the courts alone aren't to be blamed for the current rot. It is a vicious cycle that has been created thanks to the executive, legislature, media, activists, lawyers, bureaucrats etc in addition to the courts. This book was written in 2001 I think and 20 years later, it remains as relevant as it was back then.
In the scenario that has been created, it is far easy for a civil servant to just stick to status quo rather than risk reforms that would invite the trouble of litigations, courts, and lawyers. In India, the rich can escape punishment thanks to having access to the best lawyers whereas the less privileged ones are harassed continuously by the arms of law. The judiciary has given such activist judgements without even bothering about what kind of impact that they can have in the country as numerous instances in the book show. Moreover, it is hilarious to see how the same judge has given conflicting judgements in different cases!
However, Shourie rightly says that the courts alone aren't to be blamed for the current rot. It is a vicious cycle that has been created thanks to the executive, legislature, media, activists, lawyers, bureaucrats etc in addition to the courts. This book was written in 2001 I think and 20 years later, it remains as relevant as it was back then.
July 11, 2018
Highly avoidable book for the following reason
1. Though the edition is 2018 it's a reprint off 2001 edition. Indian laws and courts have lots of development after that.
2. Written in the style of a court reporter author fails to engross even an avid reader like me.
3. very repetitive. Gist is that courts delay procedure, contradictory judgement on same issues, compromised courts. All this could be narrated in half the length.
4. Cases after cases are quoted in details.
still I give 3 stars because one learnt how lousy these temples of integrity are. Some lessons in history too.
1. Though the edition is 2018 it's a reprint off 2001 edition. Indian laws and courts have lots of development after that.
2. Written in the style of a court reporter author fails to engross even an avid reader like me.
3. very repetitive. Gist is that courts delay procedure, contradictory judgement on same issues, compromised courts. All this could be narrated in half the length.
4. Cases after cases are quoted in details.
still I give 3 stars because one learnt how lousy these temples of integrity are. Some lessons in history too.
Read
November 13, 2017Worth reading. Every lawyer should read this book in an unbiased manner. Amazed to note the depth of research that has gone into writing this book
January 7, 2022
This is an extraordinary book.
It lays bare the errors and blunders of our mi-lords. It is so dense with facts and so made my blood boil with instances of perfidy, that I could not read it at one go.
Shourie tries to soften his blows on the judiciary by also putting some blame on the executive. However, the state of the courts as it is, there seems little hope for improvement.
We wonder how so very ordinary men get to occupy the exalted judicial chairs which determine the future of the country to such a large extent.
The judges seem to have been infected by faulty ideologies injected in them by breaking India forces.
Why our country has to bear such incompetence?
A wholesale revamp of liberal education seems to be the only way to clean up the morass. But the current Modi govt seems to be too pusillanimous to go for this.
It lays bare the errors and blunders of our mi-lords. It is so dense with facts and so made my blood boil with instances of perfidy, that I could not read it at one go.
Shourie tries to soften his blows on the judiciary by also putting some blame on the executive. However, the state of the courts as it is, there seems little hope for improvement.
We wonder how so very ordinary men get to occupy the exalted judicial chairs which determine the future of the country to such a large extent.
The judges seem to have been infected by faulty ideologies injected in them by breaking India forces.
Why our country has to bear such incompetence?
A wholesale revamp of liberal education seems to be the only way to clean up the morass. But the current Modi govt seems to be too pusillanimous to go for this.
December 10, 2021
I think I went in with incorrect expectations - was a little bogged down by the level of legal-judgement-detail, a lot of which I just skipped through. The cases, however, did give a glimpse of the frustrations one might face if you ever have the misfortune of being involved in our "court-kachheri" system.
Was definitely worth a read.
Was definitely worth a read.
June 28, 2023
A delightful book, which gives both the positive and negative aspects of the Indian judiciary and lag that it had in delivering the judgments and on the factors affecting judiciary to function on its own.
A must-read book by a law student, and many students in the field of political and social sciences.
A must-read book by a law student, and many students in the field of political and social sciences.
September 15, 2015
What Arun Shourie has forgotten is that this is not a petition, court filing or lecture, but a book which all people should be able to comprehend. But it is filled with such legalese that I was not able to proceed past the 50th page.
Displaying 1 - 14 of 14 reviews