While the Indian SC is undergoing its worst crisis, Pakistan’s SC is fixated on resolving issues of governance
ISLAMABAD: Pakistan and India even after seven decades of independence struggle to shed the colonial baggage they inherited after 1947 partition of Subcontinent in shape of archaic laws, dictates of retributive justice, entrenched bureaucratic mindset and its attendant red-tapism.
The lower judiciary in both countries is in utter shambles while the Higher Judiciary of late has made it to the headlines, and not always for right reasons.
Indian Supreme Court (SC) is in the eye of the storm as the four senior-most justices have revolted against the arbitrariness of Chief Justice Dipak Misra in assigning important Constitutional cases to benches headed by him or his trusted judges.
The secular, liberal Supreme Court under the saffroned-clad Bhartiya Janta Party (BJP) regime has dyed itself in the colours of the ruling right-wing extremist party. Last month, Congress along with half a dozen opposition parties have called for the impeachment of CJI Mishra, a move most likely to fail since BJP holds sway in the lower house.
It should be kept in mind that the Chief Justice of India is a constitutional authority and presides over the entire country’s judiciary, both subordinate and superior. Indian judiciary comprises of 31 Supreme Court justices, over 1000 high court judges and over 16,000 subordinate judges in civil and criminal courts.
The Supreme Court of India, for now, is the perfect example of a house divided against itself. The calm, solitary aura of Supreme Court has given way to a pall of allegations, counter-allegations, accusations, and calls for impeachment.
Around 650 kilometers away from Delhi, Supreme Court of Pakistan under the skippers of Chief Justice Mian Saqib Nisar aims to deliver clean water to all, improve hospitals, regulate prices of necessities, bar construction of stadium and regulate irregularities, disqualify politicians for life, rein in bureaucrats, and hold the high and mighty to account.
Whether the man in the street criticises the judicial activism of SC here in the country, whether the members of legal fraternity wish the apex court to practice a little more judicial restraint, SC has so far shown no signs of infighting or severe dissent.
The judges of apex court do differ, they write dissenting notes but the revolt witnessed in India seems like something impossible to take place in the Supreme Court of Pakistan at the moment.
A single case can point out the difference. The Chief Justice of Pakistan Saqib Nisar-led three-member bench took up the petition against Justice Qazi Faez Isa on 4th of April, filed by Advocate Riaz Rahi, a habitual litigator, challenging his appointment as Chief Justice Balochistan High Court in August 2009 and later elevation to Supreme Court of Pakistan in September 2014.
The Court threw out the petition and put an end to rumours that Justice Essa, having a repute of a judge of ferociously independent mindset, will be booted out.
Pakistan Today talked to Barrister Asad Rahim Khan to make sense of how to see the self-confident Pakistani judiciary juxtaposed against the divided house that Indian Judiciary has become of late.
“Pakistani Judiciary learned its lesson after the goings-on of 1990’s when two separate benches were deciding two separate cases. The situation worsened to such an extent that it ended up in the ouster of Chief Justice Sajjad Ali Shah. I think the bitter experience of Justice Sajjad Ali Shah compounded with the divisiveness during PCO judges cases in 2007 has caused Pakistan Judiciary to react very strongly,” said Rahim adding that the solidarity and oneness become more pronounced when the judiciary is pitted against an outside institution.
When asked what caused the fall from grace of Indian Judiciary and why once liberal and secular judiciary has divided itself along the lines of right-wing populist Chief Justice versus liberal, secular judges, Rahim said that he considers the present episode not as an Indian Judicial Problem but rather as a problem of Indian executive.
“The government of Narendra Modi is the proverbial bear hug. They have done this to their media, they have done this to their bureaucracy and now they are doing this to their judiciary. Basically, they have trampled over 50 years of multicultural conversation. There were tough times like Operation Golden Star, Gujarat Massacres and other incidents, the modicum of decency remained. Now, with Modi who has near the revolutionary understanding of executive power backed by legitimate populist support is running the roost. I think the corrosion that happened to the judiciary in India cannot be seen in isolation,” he concluded