CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT IN THE FULFILLMENT OF THE TOPIC COURTS AND

JUDGEMENTS MY ARUN SHOURIE

NAME-SANKALP YASH VARDHAN

CLASS- BA.LLB SUBMITTED TO- MR.PRATIUSH KAUSHIK

SEMESTER- 2ND
ROLL NO-1969 SUBJECT- ENGLISH
ACADEMIC YEAR- 2017-2018

Page 1 of 21
 ACKNOWLEDGEMENT

I would like to thank my sociology professor MR.PRATIYUSH KAUSHIK for

giving me valuable insight while making this project and also to help me in all the
areas of doubts and difficulty which finally led to the completion of this report also
am grateful to all the people who gave their inputs while creation of this report so a
big shout out to them and finally to the people I interviewed without their views
this report would not have been possible.

Page 2 of 21
TABLE OF CONTENTS

1. AUTHOR___________________________________________

2. EARLY LIFE________________________________________

3. PERSONAL LIFE____________________________________

4. ECONOMIST_______________________________________

5. JOURNALIST______________________________________

6. POLITICS_________________________________________

7. WRITER__________________________________________

8. IIT KANPUR_______________________________________

9. SUMMARY_______________________________________

10.CONCLUSION_____________________________________

Page 3 of 21
AUTHOR.

Arun Shourie (born 2 November 1941) is an Indian economist, journalist,

author and politician.[2] 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 Indiaand 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.
ArunShourie (born 2 November 1941) is an Indian economist, journalist,
author and politician.[2] 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 Indiaand 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.

Early life

ArunShourie was born in Jalandhar, British India, on 2 November 1941. He

studied at Modern School, Barakhamba [citation needed] and did his bachelor's in
Economics(H) from St. Stephen's College, Delhi University. He obtained his
doctorate in Economics from the Maxwell School of Citizenship and Public Affairs
at Syracuse University in 1966.

Personal life

Page 4 of 21
Shourie is married to Anita, and they have a son.[ His sister is the journalist Nalini
Singh. ArunShourie speaks about his personal life and reviews his life events as
case dairies "My writing is like the case diary of an advocate which is aimed at
winning a case" and his opinions on journalism.

Economist

Shortly after receiving PhD in economics from Syracuse University Shourie joined
World Bank as an economist in 1967 where he worked for more than 10 years.
Simultaneously, between 1972–74, he was a consultant to the Indian Planning
Commission and it was around this time that he began writing articles as a
journalist, criticising economic policy.

Journalism

In 1975, during The Emergency imposed by then prime minister, Indira Gandhi,
Shourie began writing for the Indian Express in opposition to what he saw as an
attack on civil liberties. The newspaper, owned by RamnathGoenka, was a focal
point for the government's efforts at censorship. He became a fellow of the Indian
Council of Social Science Research in 1976. In January 1979, Goenka appointed
Shourie as executive editor of the newspaper, giving him a carte blanche to do with
it as he saw fit. He developed a reputation as an intelligent, fearless writer and
editor who campaigned for freedom of the press, exposed corruption and defended
civil liberties such that, in the words of Martha Nussbaum, "his dedication to the
truth has won admiration throughout the political spectrum".

Page 5 of 21
Shourie has been called a "veteran journalist". Shourie was a winner of the Ramon
Magsaysay Award in 1982, in the Journalism, Literature and Creative
Communication Arts category as "a concerned citizen employing his pen as an
effective adversary of corruption, inequality and injustice." In 2000, he was named
as one of the International Press Institute's World Press Freedom Heroes. He has
also been named International Editor of the Year Award and was awarded The
Freedom to Publish Award.

Politics

He was nominated from the state of Uttar Pradesh as a BJP representative for two
successive tenures in the Rajya Sabha, thus being a Member of Parliament for
1998–2004 and 2004–2010.[citation needed] He held the office of the Minister of
Disinvestment, Communication and Information Technology in the government of
India under Vajpayee's prime ministership. As Disinvestment Minister, he led the
sale of Maruti, VSNL, Hindustan Zinc among others.

Shourie was among many who objected to The Muslim Women (Protection of
Rights on Divorce) Act 1986, which the government headed by Rajiv Gandhi
proposed to alleviate communal violence and retain Muslim votes. Claimed by the
government to be a reinforcement of India's constitutional secularism, it was
widely criticised by both Muslims and Hindus. The liberals among them, says

Page 6 of 21
Ainslie Embree, saw it as "a capitulation to the forces of Islamic obscurantism, a
return ... to the thirteenth century"; the Hindu revivalist critics thought it was
"weakening Indian unity". Shourie wrote articles that tried to show that the
treatment of women as required by the Quran would in fact offer them protection,
although the application of Islamic law in practice was oppressing them. He was in
turn criticised for what was perceived as a thinly-veiled attack on Islam itself, with
RafiqZakaria, the Muslim scholar, saying that Shourie's concern for reform of
Islam was in fact demonstrative of Hindu contempt that used the plight of Muslim
women as an example of the backwardness of the community. VirSanghvi termed
it "Hindu chauvinism with a liberal face".

After the defeat of the BJP in 2009 general elections, Shourie asked for
introspection and accountability within the party. He deplored factionalism within
the party and those who brief journalists to aid their own agenda.

Shourie has been described by Christophe Jaffrelot, a political scientist, as "a

writer sympathetic to militant Hindu themes"and has publicly voiced support for
the aims of the RashtriyaSwayamsevakSangh (RSS), a nationalist Hindutva
organisation. This has caused unease among some of those who admire his
journalism.[18] He has said that, although he sees a danger from perceived Muslim
violence such as the Godhra train burning incident of 2002, people have tended to
redefine the "Hindutva" term. He says that prominent members of the Bharatiya
Janata Party (BJP), of which he is a member and which has ties to the RSS —
specifically, L. K. Advani and Atal Bihari Vajpayee — have shown their

Page 7 of 21
opposition to sectarian hatred and in their attempts to make the BJP inclusive have
tried to marginalise those on both the Muslim and Hindu extremes who promote
such hatred.As a political scientist he views that current leaders lack competency
and integrity. He emphasised his views in a cultural conference called Tomorrow’s
India Global Summit and added that the pressure to bring about change in the
present electoral system should come from the society.

Writer

ArunShourie has written numerous books. According to Martha Nussbaum, the

traits of his writings are:

recognisably the creation of a smart, determined, muckraking journalist, They are

polemical, ad hominem, often extremely shrill in tone. ... But despite their style,
the books are obviously the work of a brilliant man, with a wide if idiosyncratic
learning, a passion for the freedoms of speech and press, and a desire to get
beneath current events to address underlying issues.

His writings have gained him a considerable following. They were initially on a
diverse range of subjects related to his journalistic interests, including
corruption[clarification needed] and polemics against left-wing historians.[citation
needed] He subsequently concentrated his polemicism mostly on issues relating to
the detrimental effects of religion on society, producing critiques of Christianity,
Hinduism[citation needed] and Islam. With the exception of Gandhi, he has little

Page 8 of 21
time for any religious thinker and, says Nussbaum, his books "nowhere ... seek to
provide balance; nowhere is there a sense of complexity. All have the same
mocking, superior tone.

Historian D.N. Jha criticized Shourie's book Eminent Historians, which concerned
the NCERT controversy, that it contains "slander" and "has nothing to do with
history."

IIT Kanpur

In 2000, Shourie pledged the entire amount (Rs. 120 million) of discretionary
spending available to him under Members of Parliament Local Area Development
Scheme (MPLADS) to setting up of Bio-Sciences & Bio-engineering Department
at the Indian Institute of Technology Kanpur.In 2005, he again pledged Rs. 110
million for developing a separate building for Environmental Sciences and
Environmental Engineering at the

Some years ago I had a phone call from ArunShourie: "Soli, may I use your law
library for some articles I am writing about some Supreme Court judgements." I
readily agreed. Shourie made full use of the reports.

Industry, research and thoroughness have been Shourie's hallmark. And Courts and
Their Judgments amply reflects this. It is rare to find a journalist with such

Page 9 of 21
extensive knowledge of law and judicial decisions. The uninformed may conclude
that he is a trained lawyer.

SUMMARY

On the whole, Shourie is critical of the judgements of the apex court and its
functioning. Several passages from its judgements are cited to establish
inconsistency. Shourie perceives inconsistencies in some cases where there are
distinguishing features. That apart, which apex court in any country has been
consistent throughout? Judges are not vouchsafed the divine gift of infallibility.
Our Supreme Court has on occasion reversed its previous judgements rather than
obstinately refuse to acknowledge its errors. Thank providence that our Supreme
Court does not overrule its decisions with the same speed and alacrity as the US
Supreme Court did in the past.

A great contribution of our highest court has been to deduce from enumerated
guarantees of fundamental rights others not specifically guaranteed. This has led to
enlargement of the scope of fundamental rights. Freedom of the press and freedom
of information which are not expressly mentioned in our Constitution have been
deduced from the free speech guarantee. Surely, Shourie can have no objection to
this innovative judicial exercise. Consistency demands that he not disapprove of
similar judicial exercises performed in the case of the right to travel abroad, the
right to privacy, the right to education and other basic human rights spelt out by
our Supreme Court. Similar judicial exercise has been performed in the US and in
Ireland.

Shourie is critical about the interpretation placed by the Supreme Court on the
expression 'life' in Article 21 of the Constitution. Unfortunately, he overlooks the

Page 10 of 21
substantial benefits of this creative judicial interpretation in the battle against
pollution and preservation of our environment.

Expansive interpretation of the expression 'State' in Article 12 of the Constitution

has brought within the discipline of fundamental rights many corporations and
other bodies, which exercise quasi-governmental functions and whose activities
have public dimensions and repercussions on the community. Consequently their
employees can claim the protection of fundamental rights, especially the guarantee
against discrimination on the basis of caste and gender. Sadly, Shourie disapproves
of "this swelling ambit of Article 12". Shourie's criticism of judgements which
have led to the backdoor entry of 'due process clause' in our Constitution, although
that move was rejected by the founding fathers, is well taken. But again he has
ignored the tremendous benefits that have thereby accrued to undertrial prisoners
languishing in jails for inordinately long periods, inmates of so-called care homes
and asylums, prisoners, children employed in hazardous occupations and other
downtrodden segments of society.

Shourie's criticism of the Supreme Court's boundless exercise of the power under
Article 142 for doing "complete justice" is justified. Dispensation of complete
justice does not empower the Supreme Court to ignore mandatory statutory
prohibitions. If the exercise of judicial power under Article 142 is not restricted
and channelised the Supreme Court will become a supra legislature.

Shourie is right in his critique of the judicial trend of lightly entertaining public
interest litigation (pil) concerning fiscal and economic policies. No one advocates
exclusion of judicial review. However, it is necessary to emphasise the need for
judicial self-restraint in these matters, especially regarding the grant of interim

Page 11 of 21
reliefs which may hold up projects of national interest for years. Judges must
ensure that pils do not degenerate into publicity, political or personal interest
litigation. Nor can every matter of public interest be the subject of a pil.

Criticism levelled at judicial activism overlooks one important fact. When the
court is apprised of grave derelictions of statutory duties and constitutional
obligations which result in violation of fundamental rights, it cannot procrastinate
nor prevaricate. It must respond. True, some judicial orders passed in pils do more
credit to the heart than to the head. True, some orders passed without realising the
grave financial implications and the impact on budgetary allocations are beyond
the judicial sphere. But on the whole, judicial activism via pils has made some
fundamental rights living realities for some disadvantaged and the exploited
sections of our society.

Shourie has rightly deplored the functioning of the legal profession, citing some
telling instances. One cannot but agree with his admonition that lawyers "need to
re-examine the premises on which they operate. Every profession has developed
such self-serving, convenient principles". His call for an ethical audit for the
professionals is timely.It is difficult to agree with some of Shourie's views and
conclusions but no one can doubt the force of his convictions. The book is bound
to arouse controversy. Hopefully it should lead to honest introspection in judges,
lawyers, ministers, bureaucrats and members of the public concerned with the
administration of justice. Therein lies the real merit of a book written with passion
and sincerity.

Page 12 of 21
Armed with a written constitution, our proud boast has always been that we are a
nation governed by laws and not by men. ArunShourie's new book shows that this is
true only in theory: the law is ultimately what the justices of the final court say it is.
The book is a critique of the work of the court - an effective and timely counterpoint to
the paean of praises on the court's functioning during its golden jubilee celebrations at
the turn of the new century.

Shourie's lack of formal legal training is neither noticeable nor apparent in the text. His
rich experience gathered over the years from successful forays into journalism, from
prolific writings on a host of different subjects and from his sojourn in Parliament as a
minister has helped to contribute to a clarity of thought and fluency of expression on a
difficult subject.
The author has definite points of view about the "judicial approach" to sundry
problems and he gives expression to them forcefully - and without the hypocrisy
associated with people and opinions that emanate from the capital city. Carefully
analysing a couple of hundred judgements delivered by the court over the past 50
years, Shourie's underlying comment is that when you read them you find "that judges
consider each issue as an issue itself - isolated from the context of society, often
independently of the consequences that will follow from it".
He may be right but this is only because under our legal system courts decide
individual cases and not broad issues. The problem is, under our Constitution the law
declared by the Supreme Court is binding on all courts and authorities in the country
and quite often the law itself is influenced by the facts of an individual case, and so
gets shaped by them.

Shourie's book is worth reading not only because it is well-researched and plausibly

Page 13 of 21
presented in elegant prose, but more importantly because it expresses the frustrations
of a thinking intellectual at the vagaries of decision-making in the apex court.

He is certainly entitled to his frustrations and to give vent to them, as did Lord Robin
Cooke of Thorndon a few years ago when he criticized our court's interpretation of a
constitutional provision about how judges of the higher judiciary are to be appointed.
Cooke did not mince words in his lecture, although in a typical understatement he titled
it "Where Angels Fear to Tread".

Shourie regrets the inconsistencies in the decisions of courts. But then, our
Constitution is deliberately so structured as to ensure judicial consistency at all levels
except the highest - and in the highest court the individual justices who sit there don't
think alike and are (thank God!) not averse to saying so.
Sociologists have ascribed the reason for uncertainty in the law in the country's highest
court to what they describe as "the plumbed depths of judicial psychology" - in other
words the penchant of judges to overrule. Judges of the apex court in almost every
country produce a recurrent proportion of successful appeals: the subconscious
motivation is said to be role justification.
That a final appellate court allows a substantial percentage of appeals in this (and
almost every other country) reflects a truism: that judges are decision makers and that
the law itself notwithstanding, the legal ethic of certainty is very often a matter of
personal opinion. Uncertainty in the law is then a byproduct of the law itself.
The power to declare the law, an American judge once said, carries with it.the power,
and within limits, the duty to make law where none ;exists. Shourie would accept this -
his only complaint is that our courts, too often, cross "the limits".
He is not against judicial activism as such, but has strong reservations about some of
its manifestations: first, because it is fed on superficial (not profound) rhetoric

Page 14 of 21
 bordering on "exhibitionism"; second, because activist judgements have not been
"thought through", that is, as to their consequences.
Each time the court forays into a "problem", it raises hopes and expectations but when
despite the court's pronouncement the problem remains unsolved there is cynicism. He
would commend to the judges Lenin's dictum: "Fewer, but better."
This piece of advice may or may not be taken to heart by those to whom it is
addressed, but it will find many supporters among those who read and attempt to
understand the judgements of the highest court in what are known as public interest
litigations.
Shourie's trenchant comments are spread over 18 chapters, each with a descriptive
heading. The entire work covers over 450 printed pages. In them the author makes
some hard-hitting points such as taking useless cases on board or how when courts
have to protect us they sometimes look the other way or occasions when the courts are
process-and-procedure oriented (not result-oriented).
He expounds on the delays that make one blush and angry, on the tribunals that act as
if they had been cloned from courts, the ambiguity of court judgements and, alas, the
lack of intellectual depth in some of them - "like a ship with a great deal of sail but a
very shallow keel". Despite all these criticisms, my own view is that the Supreme
Court is seen by many people as striving to do justice according to law. If it has not
succeeded (according to some, including Shourie), it is not for want of trying.
As for the judges, I cannot - I dare not - speak for them. But if I was a judge I would
read this book and be reminded of what the poet Robert Burns wrote so many years
ago: "Ah, would some power the gifted give uso see ourselves as others see us/ It
would from many a blunder free us...

BY writing this book, ArunShourie has done us a service — not because each conclusion is
new or indisputable, but because he goes behind the platitudes to hard facts and incisive

Page 15 of 21
analysis, making the book credible and thought provoking. This is a detailed study of the
Judiciary's ever-expanding interface with the executive government. It is interesting to see
how an activist-journalist, who has often written about judges and judgments, now views
the Court, from his position as a minister. Shourie concedes that the Court has been an
important check against arbitrary government functioning, but here he draws attention to
some of the Court's own follies. That said, the book is also very much about the executive
government. Shourie begins by noting that government functioning today is characterised
by little movement and process oriented routines, to the detriment of merit, efficiency and
results. His thesis appears to be that, in the final analysis, courts have been unable to
protect us from this crippling lethargy.

The first significant point he makes is that the courts' entry into new areas — ``judicial
activism'' — while often salutary, has risked its own credibility. When judgments are not
implemented or practically unenforceable, when judges are unmindful of the vast
consequences of their pronouncements, the institution loses its efficacy and authority. For
example, Shourie documents the Supreme Court's proceedings on bonded labour, initiated
by Swami Agnivesh in 1982. But so many years — and so many orders — later, the effect
in the ``real world'' is disappointing.

Secondly, Shourie points out that the Supreme Court's celebrated liberal interpretation of
the Constitution has been inconsistent and jerky. He gives examples of the expansion of
Articles 12, 14 and 21, dealing respectively with the definition of ``State'', the right to
equality and the right to life and liberty. Although these provisions have founded most of
our human rights jurisprudence, their interpretation by the Court has not always been
consistent. Shourie cites many examples to show that the judgments sometimes draw
distinctions which are difficult to understand, and makes the point that the Court has to be
particularly careful, because each judgment and each casual observation, founds many

Page 16 of 21
 equally imaginative later judgments. The examples also demonstrate that courts do choose
their battles and their weapons. These are often vastly different, although the cases are
indistinguishable on principle. This leaves the observer with the uncomfortable feeling that
much depends on the particular proclivities and the persuasions of a given bench.

All this leaves the law uncertain, and the government confused. Even an Executive that is
mindful of the law finds it difficult to govern its conduct in the face of uncertainty. Shourie
documents many examples — the Supreme Court's judgments on tender conditions, on
deference to the Executive in matters of economic policy, on seniority of government
employees, regularisation and promotion. And, what is worse, while the results of the
judgments are vastly different, the principles cited are often the same!

The uncertainty results in greater litigation: time, money and effort, which could surely
have been better spent. Shourie's description of some of the litigation involving
government employment is telling. Many of the Government's cases are concerned not
with lofty issues of policy or big projects, but with disputes involving one clerk, a couple
of officers or a few teachers. Although the Supreme Court has often expressed its anguish
at the avoidable litigation, the ambiguity of its judgments has, in Shourie's analysis,
actually provided an incentive to employees to ``take their chance in court''.

In his concluding chapter, Shourie himself provides a defence — that the courts have performed
better than the legislature and the executive, that its activism has been hesitant, that it was not
intended to do more than give directions, and that the law it declares can be no better than the
laws the legislature makes. But he appears to be disappointed with the motivations, the method
and the result. He concludes that the courts' priorities have not always been comprehensible or
defensible. It must be remembered, however, that the role of the Court is necessarily limited — it
can only decide issues that are brought before it, and its contribution can be, at best, incremental.

Page 17 of 21
The problem is exacerbated by the vast burdens of our Supreme Court — cases which would
never reach any other Constitutional court. This itself is a result of the vicious cycle to which
Shourie has drawn our attention — the Executive is weak, courts get involved in more than they
were meant to, their decisions become inconsistent and ambiguous, the Executive is left with no
guidance and its decisions become unintelligent and recalcitrant.vIn discussing the possible
solutions, Shourie saves his final comments for the lawyers. He writes on lawyers' strikes and
professional ethics. He cites Gandhiji's practice to challenge the fundamental premise (or
excuse?) of lawyers that each litigant is entitled to representation, each accused to a defence.
Whether one agrees with ArunShourie or not, there is little doubt that he provides much to think
about in a profession which generally lacks introspection. And, for an institution which attracts
only muted criticism, critiques such as Shourie's serve an important and useful purpose

Page 18 of 21
 CONCLUSION

Armed with a written constitution, our proud boast has always been that we are a nation governed by laws and not by
men. Arun Shourie's new book shows that this is true only in theory: the law is ultimately what the justices of the final
court say it is.

The book is a critique of the work of the court - an effective and timely counterpoint to the paean of praises on the
court's functioning during its golden jubilee celebrations at the turn of the new century.

Shourie's lack of formal legal training is neither noticeable nor apparent in the text. His rich experience gathered over
the years from successful forays into journalism, from prolific writings on a host of different subjects and from his
sojourn in Parliament as a minister has helped to contribute to a clarity of thought and fluency of expression on a
difficult subject.

The author has definite points of view about the "judicial approach" to sundry problems and he gives expression to
them forcefully - and without the hypocrisy associated with people and opinions that emanate from the capital city.
Carefully analysing a couple of hundred judgements delivered by the court over the past 50 years, Shourie's
underlying comment is that when you read them you find "that judges consider each issue as an issue itself - isolated
from the context of society, often independently of the consequences that will follow from it".

He may be right but this is only because under our legal system courts decide individual cases and not broad issues.
The problem is, under our Constitution the law declared by the Supreme Court is binding on all courts and authorities
in the country and quite often the law itself is influenced by the facts of an individual case, and so gets shaped by
them.

Page 19 of 21
Shourie's book is worth reading not only because it is well-researched and plausibly presented in elegant prose, but
more importantly because it expresses the frustrations of a thinking intellectual at the vagaries of decision-making in
the apex court.
He is certainly entitled to his frustrations and to give vent to them, as did Lord Robin Cooke of Thorndon a few years
ago when he criticized our court's interpretation of a constitutional provision about how judges of the higher judiciary
are to be appointed. Cooke did not mince words in his lecture, although in a typical understatement he titled it "Where
Angels Fear to Tread".

Shourie regrets the inconsistencies in the decisions of courts. But then, our Constitution is deliberately so structured as
to ensure judicial consistency at all levels except the highest - and in the highest court the individual justices who sit
there don't think alike and are (thank God!) not averse to saying so.

Sociologists have ascribed the reason for uncertainty in the law in the country's highest court to what they describe as
"the plumbed depths of judicial psychology" - in other words the penchant of judges to overrule. Judges of the apex
court in almost every country produce a recurrent proportion of successful appeals: the subconscious motivation is
said to be role justification.

That a final appellate court allows a substantial percentage of appeals in this (and almost every other country)
reflects a truism: that judges are decision makers and that the law itself notwithstanding, the legal ethic of
certainty is very often a matter of personal opinion. Uncertainty in the law is then a byproduct of the law itself.

Page 20 of 21
Page 21 of 21