Over the last few years there has been a discernible, if also disturbing, trend to involve, or even drag in the judiciary to settle political scores. While instituting all sorts of cases – fake or genuine, criminal or civil – against political rivals has for long been part and parcel of politics in India, the judiciary now appears to have become something of a party in the political slugfest.
Judges are not only seen to be taking political sides, but worse, indulging in an internecine war, with the active assistance of not just members of the bar but also politicians. Matters that should ideally be settled on the political battlefield are now being fought in courtrooms, with the judiciary becoming a proxy for politicians.
While political expediency might recommend itself to using judges sometimes as a shield and at other times as a sword against rival politicians, the danger that it poses to the political system itself is no less serious than involving the military in politics.
Our not-so-friendly neighbour Pakistan has experienced the wages of involving both the military and the judiciary in politics. The devastating effect of this on the Pakistani polity should serve as a storm warning against relying on the courts to fight political battles.
Although it is odious to compare the Indian judiciary with the Pakistani version of the judiciary, the fact that the two judiciaries seem to draw inspiration from each other does cause some disquiet.
For instance, the Indian judiciary took the lead in interpreting the Constitution in a self-serving manner and appointed itself as the appointing authority for judges to the high courts and Supreme Court.
Within a few years, the Pakistani judiciary followed suit. When the Pakistani parliament passed a constitutional amendment to restore some balance in how judges are appointed, the nation’s Supreme Court rejected it.
A few years later, when the Indian Parliament passed a law to give the government a say in appointment of judges, the Indian Supreme Court followed the example of the Pakistani apex court and rejected the Judicial Commission that was proposed to appoint judges.
Similarly, the innovation of Public Interest Litigation (PIL) by the Indian judiciary has been gleefully lapped up by the Pakistani judges. Unlike the Indian judiciary that has been relatively conservative in using the instrumentality of PILs to either arrogate power to itself (exceptions like the green tribunal aside) or encroach on the executive or legislature’s domain, the Pakistani judges have gone berserk using suo moto powers to assert themselves, win cheap popularity, play politics (usually as underlings and hitmen of the Pakistan Army), interfere in economic decision-making, engage in governance, and whatever else catches their fancy, including ousting Prime Ministers.
Of course, the level of outlandish interference by the judiciary in Pakistan is in some measure related to the messianic megalomania of the Chief Justice at any particular time.
While former Chief Justice Iftikhar Chaudhry initiated the trend of an interventionist judiciary, his successors were more circumspect. But the current Chief Justice Saqib Nisar has gone completely nuts, especially in the last few months. While he was quite normal when he assumed office, he has suddenly started behaving like a man possessed. Having been afflicted with a serious case of “saviour complex”, he has started to run amok.
Justice Nisar embodies a curious mix of Emperor Jahangir and Sultan Mohammad bin Tughlaq. The suo moto is the 21st century equivalent of the fabled bell outside Jahangir’s palace which could be struck by anyone seeking justice from the emperor. And quite like in the Mughal era, Nisar is into dispensing instant justice, or at least pretends to the same.
The basic principle of due process has virtually been consigned to the rubbish bin. Add to this his proclivity for issuing Tughlaqi firmans – one day he orders that all drains in the mega-city of Karachi be cleaned in one week, another day he demands the arrest of a child rapist within 24 hours, and when that doesn’t happen because the identity of the rapist is not known, extends the deadline by another 72 hours.
If one day he takes a suo moto of conditions in government hospitals, the next day the education system catches his fancy; one day he wants resolution of all water-related issues, and another day he wants to regulate the price of cardiac stents.
While the judge gets a salary package of over Rs 1.5 million per month, he demands to know why Pakistan’s top transplant surgeon is getting a salary of around Rs 2 million per month!
One day he decides that Pakistan’s former ambassador to the US, Husain Haqqani, must be brought back to the country and demands to know why Interpol is not ready to issue a red warrant on the basis of a cock-and-bull accusation filed by the Pakistani authorities, and on another day he wants the judiciary to assess the impact of the China-Pakistan Economic Corridor and agrees to the Chinese demand for an alternate dispute resolution mechanism for CPEC projects.
But wait, this is just the beginning of the bizarreness of the Chief Justice of Pakistan. He goes to Quetta and summons two former chief ministers ‘to explain what they did during their tenure to resolve the issues faced by the people’! He then goes to Peshawar and expresses dissatisfaction over the performance of the provincial government in the social sector.
He rails against VIP culture and demands an explanation for luxury vehicles with officials and ministers but himself travels in a 40-vehicle convoy of luxury SUVs. In his Tughlaqi style, one fine day he orders withdrawal of security from all people, and then when it is withdrawn and there is an uproar because most of the people given security are under threat, backtracks and blames the officials for not applying their mind on his order, even though he took leave of his own senses when he passed the order.
One day, he takes a suo moto of the taxes levied by the government on pre-paid mobile cards (clearly interfering in the domain of the executive branch of government) and on another day he demands to know why the railways are running at a loss.
One day he wants a detailed audit of why Pakistan’s flag carrier is in such a mess, and another day he wants a complete list of properties that Pakistanis own outside the nation. He even appoints a committee to make recommendations on how flight of capital can be stopped.
Even more whacky is the decision to set up a panel of judges to implement the recommendations of a judicial conference, which include developing and disseminating a counter-terrorism narrative, “developing multimodal transport law and infrastructure to increase the significance of Pakistan’s position as a transit state for trade between Central Asian Republics”, “creation of a multilateral investment guarantee agency at a regional level”, and “a specialised police which would be held accountable and should have operational autonomy and functional specialisation in investigation”.
Given that all these things fall in the domain of either the executive or the legislature, ‘implementation’ of these recommendations will mean either directly intervening in the business of government, or else directing the government to pass laws that the judiciary has decided need to be passed. One could go on and on listing out the craziness that surrounds the Pakistani judicial system these days, but that would be only to belabour the point.
Although Nisar and the rest of the judiciary have won a lot of popularity, they have ensured that the business of governance has ground to a halt. Judicial populism invariably proves to be extremely expensive. Populist decisions by Nisar’s predecessor, Iftikhar Chaudhry, has cost Pakistan billions of dollars in direct and indirect cost by overturning the privatisation of the Pakistan Steel Mills, and scraping the agreements with international companies for a copper mine and a rental power project.
More critically, this kind of Jahangiri justice model doesn’t really change anything. It might give vicarious pleasure to see officials squirm and politicians humbled, but does little in terms of enduring systemic changes. Worse, by disregarding due process and reducing the administration of justice to the personality, or even eccentricity of an individual, it actually ends up harming the system instead of reforming it.
Indian politicians need to learn from the experience of their Pakistani counterparts. In Pakistan, opposition politicians have invariably given in to the temptation of favouring judicial intervention and encroachment, only to regret it when they came to power. In India, something similar might be starting to happen.
Encouraging the judiciary to stand in defiance of the government might be politically useful for the opposition parties in India today, but tomorrow when the shoe will be on the other foot, these same politicians will regret the stand they have taken.
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