An Indian Supreme Court judge

Published: June 23, 2012
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JUBAIL, SAUDI ARABIA: I don’t know whether it’s a matter of pride for the Indian Supreme Court that its counterpart in Pakistan has cited the Indian court’s verdicts while ordering Prime Minister Yousaf Raza Gilani’s disqualification from being a member of the National Assembly.

Former Indian Supreme Court judge Justice Markandey Katju, writing in The Hindu recently, questioned what he said was the “lack of restraint” on the part of the superior judiciary in Pakistan. He wrote: “In fact, the court and its Chief Justice have been playing to the galleries for long. This has clearly gone overboard and flouted all canons of constitutional jurisprudence”. He said that Article 248, Clause 2 of the Pakistani Constitution very clearly states: “No criminal proceedings whatsoever shall be instituted or continued against the President or governor in any court during his (or her) terms of office”. He then went on to ask that if this is the case, how could a court approach what is a settled provision in the “garb of interpretation”?

The Pakistan Constitution draws its basic structure from Anglo-Saxon laws; and the same is true for the Indian constitution, which establishes a delicate balance of power among the three organs of the state — the legislature, the executive and the judiciary. It is expected from all three not to encroach into each other’s domain, otherwise the results will definitely not be salutary for the state. Following the prime minister’s disqualification on June 19, we saw this happen again with arrest warrants being issued for a prime ministerial nominee, Makhdum Shahabuddin.

In my humble opinion, I hope that Justice Katju will not be issued with a contempt of court notice for his article in The Hindu.

Masood Khan

Published In The Express Tribune, June 24th, 2012.

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Reader Comments (21)

  • tariq
    Jun 23, 2012 - 10:45PM

    i just ask a single question from this judge of indian supreme court that if the indian supreme court give a direction to exective and the exective refuse to comply, what would indian supreme court do. if ,for example,it leave the matter due to exectiv refusal than how indian suprem court will protect the rights of indian citizens

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  • Ammar
    Jun 23, 2012 - 11:09PM

    After listing to the interview of Justice Markandey Katju on BBC Urdu, i agree with him.

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  • Attif Abbas
    Jun 23, 2012 - 11:22PM

    Its astonishing that Indian Judge don’t understand the case.The swiss case was taken back by the Attorney General Mr Abdul Qayum with no valid executive authority and SC was pressing to take that letter back.Beside during the Arguments even Hon,ble Aitzaz Ahsan refused to give the argument over presidential immunity.This Indian judge is just reiterating the PPP policy statement.

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  • observer
    Jun 24, 2012 - 12:14AM

    @Tariq

    Well, as you can see from Justice Katju’s remarks, the Indian SC judges see themselves as creatures of the Constitution and not of some PCO/LFO/UFO or whatever. And being aware of the Constitution they are unlikely to pass an unlawful order. If they do, their fellow judges will set such orders aside.

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  • Pakistani
    Jun 24, 2012 - 1:19AM

    Its none of Indias business! so hushRecommend

  • Iyan
    Jun 24, 2012 - 5:22AM

    @tariq:

    The answer to your question is very simple. A supreme court judge, let alone the CJ, must know not to issue a directive which is not in consonance with the constitution or disrespects the separation of powers that is enshrined in the document. The action of a CJ as happened in Pakistan should never happen in any sovereign democracy under any circumstances. If a President is acting unlawfully and the parliament knows this, the members can always impeach the president. If a President is corrupt and still the elected members of the President’s party do not act to impeach him or her, then they will be fearful that they will lose in the next election and that would end their political careers. There are always checks and balances. Democracies may be slow but they are self correcting and almost always end up on the rightside. If you keep interfering between the branches, then this will not happen. The military should never interfere because it has no powers other than the ones vested in it by the Executive branch and approved by the Parliament.

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  • gp65
    Jun 24, 2012 - 8:21AM

    @tariq: “i just ask a single question from this judge of indian supreme court that if the indian supreme court give a direction to exective and the exective refuse to comply, what would indian supreme court do”

    Well the Indian Supreme Coourt will not ask the government to do something which is against the Indian Constitution. This is different from the Pakistani supreme court which was asking the Pakistani government to write a letter against the President when in fact he has immunity per your own constitution.

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  • KnoWhat
    Jun 24, 2012 - 8:49AM

    Justice Markandey Katju of India is a definitely a sane voice from Only Country who has similar history of the origins of our current legal system and the people it's made for. We can not just "hush" such opinion due to it's extreme relativity to our system. After all, we saw our CJ quoting other countries' laws and their application. But there is a thing called human psychology that effects all.

    That is__ if a person goes through an ordeal in his life and was not consoled appropriately or professionally he will find it very easy to inflict the same ordeal on others without even realizing it.

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  • Toticalling
    Jun 24, 2012 - 10:50AM

    Masood, I agree with you and what Indian SC judge wrote. Thanks for sharing it with readers of ET.

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  • RS
    Jun 24, 2012 - 12:08PM

    Justice M. Katju opinion or comment need not to taken in negative sense. If we read n analyze carefully what he said or wrote there are two (2) main aspects which he seems not fully aware a. In India most of the ministers (as/news we read now/than) if caught or named in any corruption or other serious crime – they do show dignity n resign immediately. Whereas, such practice is un-imaginable in Pakistan; b. Article 248, clause 2 (which he referred) if read by a layman word by word than it’s notable than word Prime Minister doesn’t exist. It refers to President or Governer, designation of Prime Minister is not mentioned in this article 248 or clause 2. Off course, he being a judge/some lawyers may start defining wordings as they read/understand – not necessary their interpretation would be acceptable. That’s why statue of justice eyes are blind folded.

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  • Masood Khan
    Jun 24, 2012 - 2:09PM

    @tariq:

    Justice Katju is not questioning whether article 248 clause 2 should be part of a democratic country’ constitution, but whether like it or not, this article is there then why go for its interpretation. He finds negative motive in this move — first insist to interpret this article but when no one request such interpretation, then say it’s contempt of court as we have interpreted it by ourselves.

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  • gt
    Jun 24, 2012 - 3:17PM

    @Pakistani:

    Did you care to understand the relevance that the Pakistan Supreme Court has quoted extensively from Indian rulings in making its judgments? Or that the Pakistan Supreme Court uses Indian Supreme Court precedences with great frequency and approval in many instances?

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  • Tariq
    Jun 24, 2012 - 3:54PM

    People can disagree whats the big deal. Our judges live and pakistan and we have our own set of problems.

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  • kaalchakra
    Jun 24, 2012 - 5:03PM

    India is not going to be a friend of Pakistan by being a legal imperialist in the neighborhood.

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  • Wellwisher
    Jun 24, 2012 - 5:49PM

    @tariq:
    Indian courts would not pass orders against its constitution. If passed Parliament has powers to impeach judicial officials not judiciary like in Pakistan. Right?

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  • Raj - USA
    Jun 24, 2012 - 7:27PM

    The SC by its own judgment of imposing a 32 second sentence on the PM, has determined that the offense was a very minor civil offense and not a criminal offense. In fact the PM was not jailed even for the 32 seconds sentence. No elected PM holding office has ever been removed from his office anywhere in the World for such a trivial civil offense which is far less than even a minor traffic offense.

    As the PM has already been sentenced for 32 seconds and has already served his sentence, can he be punished again for the same crime by removing him from his office and disqualifying him from contesting elections for five years ? Is it not double jeopardy ? Also, can the PM be disqualified for an offense which is just a civil offense and not a criminal offense?

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  • Zoaib
    Jun 24, 2012 - 7:32PM

    As far as I understand it (I’m no legal expert but gathered this from other legal wizards), it is clear to me that the immunity provision seems to be against a fundamental right that all citizens are equal before the law. Therefore, what is to be judged (and interpreted) by the SC is whether keeping in view both provisions, what is the meaning of the so-called “immunity” in this case, i.e. whether it relates to past cases or only limited to actions in official capacity. But the government wasn’t willing to approach the court for a judgment on this (out of fear). Therefore, the SC was left with no choice but to press on its order for the letter to be written, thus leading to contempt of court and DC of the Prime Minister. The courts are only supposed to judge according to law, not on the political repercussions that may follow (this is for those saying SC should not pass an order which could not be implemented).Recommend

  • Masood Khan
    Jun 24, 2012 - 8:48PM

    @Zoaib:
    If we accept this logic that SC is authorized at its whim to interpret even those clauses which have no ambiguity, then there is no end to it — NA has 400 general seats, it could be interpreted that in line with ideology of Pakistan & to promote nationalism, only 100 women can be elected on general seats, only 30 can wear sari, 300 male members are allowed to wear shalwar qamees, 50 can wear dhoti Kurta while 50 can wear suit & tie. If we are not bothering to question SC’ controversial verdicts today, then it will open field for manipulated interpretations.

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  • AnisAqeel
    Jun 25, 2012 - 4:19AM

    @Masood Khan:
    I fully agree. Thanks for your letter and comments.

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  • karma
    Jun 25, 2012 - 9:44PM

    Tariq: Such incidents have happened in India, where a state has refused to comply with the order of Supreme Court, but never the govt. of India. The only instance where a PM defied a court order was in case of Indira Gandhi, who imposed emergency. She faced huge resistance from almost all of opposition, and people voted congress out of power for first time in India’s history.

    Should it happen now, it is the chief secretary or cabinet secretary, who will be hauled to the court and put to jail, as head of bureaucracy that has to carry out the order. Not the PM or President.

    But, it is unlikely that a CM/PM or a president will survive a scandal of a top court ordering something against them. Even an chargesheet being filed on a minister, typically results in him resigning under pressure.

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  • karma
    Jun 25, 2012 - 9:47PM

    Zoaib:

    Immunity provisions are not to make a person above law. It is to enable the state to function, without being headless.

    Immunity is also only from prosecution – not from investigation. But, if an investigative agency finds enough evidence against a PM/President or a Supreme Court judge – the course of action is for parliament to impeach them. A court won’t be able to dismiss a PM/President.

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