Hans Raj Khanna (1912-2008)

(July 3, 1912 - February 25, 2008)

To his sister days before delivering the sole dissent in the Habeas Corpus case: "...I have prepared a judgment that is going to cost me the Chief Justiceship of India."

[From H.R. Khanna, Neither Roses Nor Thorns (Eastern Book Co., 1987)]

Justice Chaudhary et al - II

Howsoever much I might love The Code and the course I don’t feel like typing my project. I would rather write about the situation in Pakistan, which I last described as ‘on the whole… deprecable and disheartening’. The situation seems to have much improved since then. Yesterday, Justice Khalil ul-Rehman Ramday of the Supreme Court of Pakistan announced the historic verdict setting aside (by a majority of 10-3) the Presidential reference of March 9, 2007. The order stated:

“As a further consequence thereof, the petitioner Chief Justice of Pakistan shall be deemed to be holding the said office and shall always be deemed to have been so holding the same”.

July 20, 2007 can be categorized a great day in Pakistani history. I think it is a great day for atleast three reasons.
One, it is important that the public has faith in the judiciary and such faith has, in some sense, been restored, if there ever was in the first place. As I noted in the earlier post, Pakistan’s judiciary has been meek and subservient to the Government, especially when it is the often seem form of military rule. This is a bold and resilient response to all the bullying the judiciary in Pakistan has suffered. It is in a way a response to all the public demonstration that took place in the last four months in protest of the dismissal of the CJP.

Two is not wholly unconnected from one. The verdict contains in it the seeds of judicial activism in Pakistan, which could have seemed a joke otherwise. In a country like Pakistan, judicial activism can be of immense value. It can be reasonable accepted that the democracy has virtually failed in Pakistan. Although I am not a proponent of judicial activism, because of the excessive usurpation of functions it results in (as it has in India), yet a single institution rule is much better than a single man rule. Being optimistic, almost romantic, it can see Pakistan being set on the path of economic growth under the mentorship and direction of the judiciary.

Three, because it is the first time ever in the motley history of Pakistan that the Supreme Court has pronounced a verdict against a military ruler. This can be because the present military ruler is in a way different from his two predecessors. He does not see the world in black and white (Read: Kuldip Nayar’s “Black and white world of Pak dictators”, Asian Age; although the author of that article thinks Musharraf is like his predecessors). Generals Ayub Khan and Haq were not such able PR managers of themselves. Whatsoever President Musharraf’s domestic image may be, he has succeeded in the West in projecting himself well, as an upholder of democracy in a country like Pakistan, by having a puppet Government and Prime Minister. So, the judiciary could have passed such a verdict to sustain that impression considering the amount of worldwide criticism he faced for sacking the CJP by presenting an image of a strong judiciary.

Well, while I write this, India gets its first woman President. Shameful as it is, I would just quote Shobhaa De here:
“From the sublime to the ridiculous, to the downright shabby, the pathetic wheeling and dealing, horse trading and lobbying that have scarred this election, this is nothing short of an insult to the high office.”
Click here to read the full article.
Consider reading this as well.

Meanwhile, I continue my list:

August 15, 1964-August 15, 1965: January 26, 1965: Official Languages Act, 1963 comes into effect. North versus South results. Fierce Anti-Hindi agitations in Madras.
August 15, 1965-August 15, 1966: September 1, 1965: Pakistan launches Operation Grand Slam and a bloody tank battle follows in Sialkot. Prime Minister Lal Bahadur Shastri jingles Jai Jawan, Jai Kisan.
August 15, 1966: The goongi gudiya becomes the first lady to address the nation from the ramparts of the Red Fort after being chosen the Prime Minister on January 19.
August 15, 1966-August 15, 1967: November 17, 1966: Reita Faria becomes the first Indian to win a major beauty pageant at the Lyceum Theatre, London.
February 27, 1967: A mammoth eleven judge Bench rules that a Constitutional amendment is subject to Fundamental Rights.
August 15, 1967-August 15, 1968: February 20, 1968: India secure their first overseas cricket win by beating New Zealand at Dunedin by five wickets. Mansoor Pataudi, the captain of the Indian team wins the Wisden Cricketer of the Year that year.
August 15, 1968-August 15, 1969: December 10, 1968: Hargobind Khorana becomes the first Indian post-independence to win a Nobel Prize: in Physiology and Medicine for his pioneering research in genetics.

Manufactured Public Opinion

Following is a piece written on November 10, 2006, in response to an article which appeared in The Hindu which appeared the previous day:

There are two major issues involved, viz., firstly the role of ‘manufactured public opinion’ [cf. The Hindu dated November 9, 2006 “Tyranny of manufactured public opinion” by Harish Khare] and secondly, the role of a lawyer in a legal system.

Legally, accused is very different from guilty and the latter is supposed to be condemned for the crime and not the former because if the accused is condemned the total legal process that converts the status of the former to the latter after close examination and appreciation of evidence and other incriminatory material is rendered redundant. However, as public opinion seems to be increasingly becoming manufactured by the over-involvement and over-enthusiasm of the media, the fear as to the accused being publicly humiliated before his offence is even proved looms large. There is a danger of the media taking over the role of the judiciary. Several accused people have been maligned by the media to such an extent that their public image is beyond repair. It is difficult for such accused to be ensured a fair process of law because even the honourable Bench member is an audience of the media and somewhere, (s/)he is affected by this manufactured public opinion. Apart from the risk of an innocent accused being unnecessarily and unfairly charged for offences (s/)he has not committed due to unconscious reliance upon the manufactured public opinion, even people like Dawood Ibrahim, who have been pinpointed by the media and also by investigating agencies, tend to avoid trial and extradition on the excuse that due to the manufactured public opinion, it is difficult to ascertain a fair trial in such a jurisdiction.

This is not to say that the media should be manacled or even that restrictions should be imposed through suitable legislation (e.g. a Bill banning ‘sting operations’ which is to be tabled in the forthcoming session of the Parliament). It is the responsibility of the media itself to exercise the divine freedom more meaningfully instead of obstructing the process of law.

Coming to the second issue of what is the moral duty of a lawyer in a legal system. In an adversarial legal system like ours, where a lawyer is the key player in the court, it is important that for a fair trial, a lawyer be ensured to the accused. It is a fundamental ethic of legal practise that a lawyer cannot be afforded to be given the freedom to reject a weak case simply because of that defect in the case. Under any circumstance, the innocent cannot be allowed to be prosecuted, even at the cost of the failure of locating finally who the criminal in a particular case was.

Justice Chaudhary et al

It seems important to think about the present condition of the Supreme Court of Pakistan, considering relations with any other country in this era seem to depend on the working of the Constitutional institutions in that State. Very briefly, the Chief Justice of Pakistan was suspended for alleged charges of misconduct, which he could not explain despite being given a hearing by the honourable Pakistan General. The action of the General of suspending the Chief Justice Iftikhar Mohammed Choudhary has received almost unequivocal condemnation worldwide, and made the judge a hero.

This picture with the sacked Pakistan Supreme Court Chief Justice Iftikhar Chaudhary highlights the sorry state of institutions in the neighbourhood.

The present issue has been consuming a piece of my mind for quite some time. And I write an opinion on this partially because of this consumption having reached a saturation point; and also because of the recent interaction of the Justice (Retd.) Khalil-ur-Rehman Khan and his views on the same issue.

Let me first present a case for the General. Possibly he was ill-advised and did not foresee that his order of suspension of the country's top judicial figure will result in such an adverse reaction both from the Bar and the Bench in the country and also from other democracy-respecting nations. That is all can be put forward in the General's favour.

Making all possible efforts to avoid passionate argumentation, it is important now to analyse three things. Firstly, why did such an event occur in Pakistan and is only the General guilty? Secondly, can any parallel of such an attack on the judiciary be found in India and what were the reactions to it? And thirdly, on a broader plane, will this prove to be fatal for the General? It might be possible that some of the comments might be borrowed from Justice Rehman Khan. Be that as it may, it will still be useful to jot his views down and supplement them with my own.

An answer to the first question is prima facie quite simple that the General removed the judge in a shabby manner, though on a deeper thought one seems to realise that the judiciary is equally culpable to have brought about such a situation in which the executive can bully the judiciary. (See, Deccan Herald, March 13, 2007)

Pakistan has faced three coup-de-etats by Ayub Khan, Zia-ul-Haq and Pervez Musharraf (in chronological order). The first Constitution of Pakistan came into force in 1956, but was suspended in 1958 by Ayub Khan. Then in 1973, another attempt was made, but the Constitution was put in abeyance by General Haq in 1977. In 1991, Constitutional rule was restored again but in 1999, the present General took over. In other words, all attempts to have a democratic constitutional rule in Pakistan have been nipped in the bud by these coups. The judiciary could have raised its voice against such a military takeover by annulling it and declaring it unconstitutional, which it failed to do. Even in 1999, the Musharraf coup received judicial sanction. So, blaming the judiciary for past inaction will not be wholly unjustified. Weak institutions owing to a possible lack of democratic and liberal culture may be reasons for a dismal constitutional working in Pakistan.

The second question is of simulating the Pakistan situation in India. An example of an attack on the Indian judiciary which comes immediately to one's mind are the two supersessions (one of three majority Judges of Fundamental Rights case to appoint Justice Ray in their stead in 1973 and the other of Justice Khanna, the sole dissenting judge in Habeas Corpus case to appoint Justice Beg in 1977), in which the executive displayed its muscle by breaking a convention of appointing the seniormost judge as the Chief Justice of the Supreme Court of India, and Mrs. Gandhi received great personal ridicule for having acted too despotically to satisfy her own ends. On both the occasions, the superseded judges resigned in protest immediately. In Pakistan, attack on the judiciary are not uncommon and Supreme Court judges have been removed in the past. In Indian constitutional history, there is not a single member of the higher judiciary who has been removed. A possible exception is that of Justice Jaffer Imam who was convinced to resign in the early 1960s due to an illness which affected his mind. Pakistan judges (not only Supreme Court but also High Courts) should have stood up against such a brassy attack on their esteem and honour. It is a matter of principles and most of the judiciary relinquishing their posts would have ensured the General to learn a lesson. The judiciary which is the only organ upon some faith still remains could have become the symbol of people's dignity, which has long been tampered with by military tyrants in Pakistan.

As regards the third question of whether this will prove to be fatal for the General, it appears that a comment on this would be too early, although if the issue aggravates and does not wash out of the public memory (which is quite likely,), and international pressures are put on the General, he might have to go. After a cursory look at the political system prevailing in Pakistan, it seems really queer how anything like this could exist. The real executive (the Prime Minister and his Council) is an astonishing burlesque because it has absolutely no powers in the real sense except to act on the directions of the General. Pakistan displays a new form of the parliamentary system of democracy.

On the whole, the situation is deprecable and disheartening.