B L Saraf
Superior judiciary in India and Pakistan is making news. Sadly, not for the flattering reasons. Factual position apart, a perceptional battle between judiciary and the executive is on at both the places. Judiciary in the sub-continent is really passing through trying times. It is charged with pursuing a political agenda which doesn’t augur well for democracy in the Sub–Continent. In Pakistan it is because “Supreme Court is taking on the executive and takes up political and divisive cases.” It is opposite in India where it is alleged that “Supreme Court has developed a bonhomie with the Government.”
It is a tale of two judiciaries working in different political echo systems. Chief Justice Pakistan Mian Saqib Nisar has denied the charge and explained “I have no political agenda but I wish to see the availability of clean drinking water basic health facility and food for the people of Pakistan.” Knowledgeable quarters in Pakistan hardly take their C J seriously when he says he has no political agenda. What he did to Prime Minister Nawaz Sharif was not liked by most of the countrymen. He dethroned him on highly untenable reasons. Khalid Ahmad, consulting editor of Newsweek Pakistan, writes, “in Pakistan everyone knows that Court has lowered itself into a litigation through which the political parties want to pull each other down. Everyone knows that Sharif’s PML -N doesn’t get along with the Pakistan Army and that some judges are prone to show themselves as part of more powerful establishment determined to replace the ruling PML-N with Imran Khan’s Tehreek -e -Insaaf.”
Not to rest there, Pak SC dislodged Nawaz Sharif from the post of president of PML – N. Which compelled another Pakistani journalist and Human Rights activist, IA Rehman to comment ” The Supreme Court order of Feb 21, whereby Nawaz Sharif was dislodged as president of the PML-N has raised many questions that need to be satisfactorily answered in the interest of democratic politics and the judiciary’s independence .”
These quarters refer to the toppling business which the Pak SC has been indulging in for a while. It started in 2007 when C J Iftikhar Chowdry invoked the “Suo- Moto” jurisdiction in nearly 6000 cases. He forced General Pervaz Musharaff to give up Presidency. Asif Zardari’s Prime Minister, Yousuf Raza Geelani too was made to leave office thanks to the Supreme Court .
Supreme Court in Pakistan has had a cordial liaison with the ‘real ‘establishment – that is the Pak Army. ‘Cooperation’ began in mid-fifties of the last century and continued merrily, thereinafter. It started with Chief Justice Muhammad Munir – a fine legal mind indeed- who introduced the ‘ concept of necessity ‘ validating the dismissal of Khawaja Nizamudin’s government by the Governor- General Ghulam Muhammad, in 1953 .With the passage of time this doctrine had been used by the superior judiciary in Pakistan to validate military coups . In fact, Pak SC has acted as Army’s point man to fix the undesired civil establishments. Therefore it is myth to say that Pakistan superior judiciary has taken on the ‘real’ establishment.
With the threat of Suo -Moto action looming large , a fear is gaining ground in Pakistan that country is in imminent danger of being over taken by the “Judicial Martial law.” Prime Minister Shahid Khaqan Abbasi had to caution SC that political matters are better left to be decided in polling booths rather in the courts.
In India, judiciary has by and large lived up to its role envisioned for it in the Constitution. Though at times executive did try to interfere with its working. We did come across period when “Committed Judges ” idiom came in vogue and country had the misfortune, in 1976, to see cases like ADM Jabalpur come up which, according to the noted lawyer F. Narriman , ” was the low water mark in Indian Human Rights jurisprudence .” +9Fortunately, the Apex Court corrected itself in 1977 by having a second look on the matter. It is to the credit of Indian superior Judiciary that it had on the bench justices known for catholicity and independent thinking who kept its flag flying high.
The issue that, mainly, bedevils executive – judiciary relations in India is the process of appointment of judges to the superior judiciary. Earlier as per the Constitutional Scheme executive had a major say in such appointments. But later on the Supreme Court assumed this power leaving insignificant role for the executive. An attempt was made to bring in some sort of balance in the process of appointment to the Highest Judiciary and a required law was made. However, it did not find favour with the SC and got struck down. Then a kind of stalemate ensued. The baneful effect of it is for all to see. India faces acute shortage of judges which is telling upon the justice delivery system. The situation has come to such a pass that former CJI T S Thakur had to beseech the PM in public with tearful eyes , to act fast to fill up the vacancies. Problem still persists. Then, there are certain internal issues that Apex Court has to contend with.
There appears to be trust deficit between executive and judiciary. For a country which suffers from overdose of negative politics this will spell doom. Some feel that judiciary has come under an assault of the executive and it being bypassed in vital matters . While as some in the Government feel that judiciary has taken over executive and legislative business. Cases are cited on both sides to prove the respective point. This is not a healthy situation. Something needs to be done to restore the trust. Onus lies on the PM Modi to arrest the decline in mutual trust. Having come to the helm with a huge mandate and public expectations he has to act, may be, over the head of his ministers. Some of whom have not crowned themselves with glory. As if issues with respect to the judiciary were not enough, comes the CBSE paper leak and its inapt handling by the HRD Ministry.
At least, start can be had by clearing names recommended by the Collegium for appointment to the Superior judiciary. Look, what has this fluid situation done. It has activated disgruntled politicians and the ‘bullying lawyers’ to think of moving an impeachment motion against the CJI. Knowing that they don’t have the numbers or sufficient reasons therefore, minister games is underway to brow beat the CJI and deter him from discharging his Constitutional duties.
True, executive and the judiciary can’t be a group of “mutual admirers”. But as important pillars both will have to hold the fort together, in equilibrium : lest the whole State structure crumbles down.
(The author is former District and Sessions Judge )
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