Pakistan Chief Justice Iftikhar Muhammad Chaudhry made an interesting point at the Commonwealth Law Conference at Hyderabad. He said that the democratic government, which replaced military rule in his country, did not make or nullify the acts and actions of the military rulers.
Justice Chaudhry suffered a lot at the hands of General Pervez Musharraf, then the sole wielder of power. The countrywide agitation by the Pakistan lawyers restored him to his office. In the process, the Pakistan judiciary became independent. But without punishment to those who derailed the system, no example can be set before the people who do not respect the rule of law.
I agree with the chief justice that a nation must undo the wrongs that a ruler might have done to the constitution or to the legal system in his or her regime. This, however, is dependent on the successors commitment to values, justice and fair play.
India too had a bitter experience when Prime Minister Indira Gandhi amended the constitution and took illegal steps during the emergency. The Janata Party which came to power after defeating her at the polls nullified all the changes she had effected. Yet it failed to punish Mrs Gandhis cabinet colleagues or pliable officers responsible for the excesses they had committed.
The Shah Commission did a commendable job to bring out the wrongdoings. It also named those who committed the crime. But Mrs Gandhi returned to power before any law court could punish anyone of them. She, in fact, took action against those who had not obeyed the unconstitutional authority residing in her son Sanjay Gandhi during the emergency.
The mere undoing of the wrongs is not enough. The culprits must be brought to book. Otherwise, they again become instruments of tyranny. This is precisely what happened when Mrs Gandhi assumed power for the second time in 1980. She brought back her obedient officers and the tainted ministers, some of them are still there in the Manmohan Singh government.
Chief Justice Chaudhry was quite right to assert that it was the judiciary that brought an end to the constitutional deviations in Pakistan and restored the rule of law. I do not know whether his claim on the rule of law is justified because lawlessness in certain parts of Pakistan is disconcerting. Yet he could not punish the guilty. Maybe, that would have meant taking action against General Musharraf who was the President and enjoyed immunity because of the office he occupied. Still the Chief Justice could have initiated some steps to bring him to book. This would have served a notice to the future rulers.
I think that Justice A.K. Ganguly hit the nail on its head. He remarked during a hearing of the Supreme Court that no government wants a strong judiciary. He was no doubt referring to the cancer of adjournments. In a phone tapping case, only one witness had been examined in the last four years. But his remark has validity. Yet if I may say so, the manner in which some judges ingratiate themselves with the government, they convey a wrong message to it. A high court judge, who is now in the Supreme Court, admitted that his visit to Delhi could not be complete until he had called on members of the judicial presidium.
The tug-of-war between the executive and the judiciary is nothing new. It was there even at the time of Indias first Prime Minister Jawaharlal Nehru. He was furious when the Supreme Court declared Zamindari Abolition Act ultra vires. Not long ago, the then-Speaker Somnath Chatterjee refused to accept the Supreme Courts notice. He said that the court had no right to examine the issue that fell in parliaments jurisdiction.
A few weeks ago, the government said that the Supreme Court could not examine the suitability of P.J. Thomas once he was appointed Chief Vigilance Commissioner (CVC). This time the court had the upper hand when it asserted its power of judicial review.
The Commonwealth Law Conference cautioned against the use of judicial review to erode the legitimate role assigned to other benches of the government. Indeed, parliament is supreme since it represents the people. But the independence of the judiciary cannot be diluted in a democratic society. The government has the tendency to arbitrariness.
The prejudice of the executive is visible by the negligible allocation made for the judiciary. It is a quarter per cent of the budget outlay. One chief justice after another has pleaded for more courts to clear the backlog of cases. How can 16,000 courts in the country dispose of about 2.4 crore cases pending? The other point that Justice Chaudhry raised was about the double standard the West followed on subsidies is pertinent to our part of the world. The developed countries which control World Trade Organisation (WTO) and the International Monetary Fund (IMF) often take the developing countries to task for giving subsides to their farming sector. Yet, strangely, some developed countries, including America and France, give billions of dollars as subsidy to their own farmers.
Initiating the debate, Chief Justice of India S.H. Kapadia said that there was need to adopt a minimum core-approach with a focus on the people below poverty line. Eminent lawyer Kamal Hussain from Bangladesh was more forthright. He equated human rights with the peoples right to livelihood. I think that the Prime Minister had the last word when he said that a sound legal system based on the rule of law is a major determinant of a favourable macro-economic development.
The writer is a senior Indian journalist.
