Executive failures can't be an excuse for judicial overreach

On June 19 this year, the Supreme Court in Pakistan created history of sorts: it virtually sacked prime minister Yousuf Raza Gilani by declaring him “disqualified” for committing contempt of court. Now it has issued an ultimatum to the new prime minister.

Sixteen years ago in India, the Delhi high court denied bail to prime minister P V Narasimha Rao in the Lakhubhai Pathak case. But for redressed by the Supreme Court, it would have successfully dethroned a prime minister. For an arrest would have led to his resignation.

 In India, democracy has taken roots while Pakistan has had only fitful encounters with it. The comparison, therefore, may even be rejected outright. However, precisely because democracy is far too precious and fragile it demands continuous vigilance.

Pakistan’s Constitution gives immunity from criminal proceedings to its president, as does India’s. One could argue with the constitutional principle of the President above the law, but that would be an entirely separate debate. Courts must uphold the Constitution just as the government of the day should do nothing that comes into conflict with it.

 Facts of the ‘pickle king’ Lakhubhai case were strange. Rao’s name was added to the chargesheet years after the complaint in 1987, which itself was filed four years after the supposed ‘cheating’ offence. Rao was acquitted in the case in 2003 when he had ceased to be prime minister. And yet the high court had denied bail to the sitting prime minister, when bail ought to be the norm in all non-heinous offences.

 Anyone and everyone runs to the courts with a PIL, and often they are heard with a speed denied to litigants waiting for decades for a judicial verdict. In many instances the original litigants are dead before any verdict is delivered. Rao was lucky to have been acquitted a year before he died.

With erosion of faith in the political system’s ability, or even willingness, to address urgent issues, there is a tendency to rely on courts to deliver not only justice, but also governance. That could be a dangerous trend if courts suffer from some delusion that they alone can do right by the people when governments fail. Currently the government has engaged the Supreme Court over its ruling on auctioning of all natural resources.

Democracy and judiciary

The courts-versus-executive clash is as old as the very concept of democracy and an independent judiciary. As far back as 1861, US President Abraham Lincoln took the bull by its horns: “if the policy of the government...is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers, having to that extent, practically resigned their government into the hands of that eminent tribunal.”

Restraint on the part of the Supreme Court is a must. In an article, jurist Fali Nariman quoted Judge Thijmen Koopmens of Netherland who had served on the European Court of Justice:  “there is a natural tendency for judges to write a larger role for themselves.”

If the executive is bound not to compromise independence of the judiciary, courts too must respect the domain of the executive. Any effort to cut “a larger role for themselves” will be a recipe for chaos. In Pakistan, the army carved out a bigger role for itself; the ISI became a state within the state, and now the courts have joined the game of one upmanship. The results are there for all to see.

 Former Attorney-General Soli Sorabjee warned:  “`hyper-active judiciary’ in its writ jurisdiction, but chaotic mainstream system of justice...is unsustainable in the long term.”
 In high-profile VIP cases, the story is less about crime and punishment than about maximum dramatic effect. The wheels of justice grind not only slowly, but also fitfully.

“Courts should not enter the political arena. They must look at issues that are judicially determinable...one cannot deny that courts are influenced by the political complexion of the powers that be,” said BJP leader Arun Jaitley. “As a result of a backlash after its battle with President Musharraf, Pakistan judiciary is now increasingly over-assertive.”
 The infamous ‘hawala’ case got newspaper headlines day after day. Finally, the court said there was no actionable evidence.

 Eighteen non-bailable arrest warrants against Uma Bharati for rioting in 1994, did not prevent her from serving as a minister in the Vajpayee government.  A fresh warrant in 2004 forced her resignation as Madhya Pradesh chief minister. Within weeks all charges were dropped on the strength of a cabinet decision!

 When H D Deve Gowda was prime minister (with outside support from the Congress), the murder case of Congress leader Sitaram Kesri’s physician was taken off dusty shelves, as was a disproportionate assets case against him. Kesri hit back forcing a change of prime minister.  

Courts alone can take a final view on criminal complaints. But sometimes their actions raise a lot of sound and fury signifying nothing. Twenty years after the Babri Masjid was demolished, courts are yet to decide whether L K Advani was part of a criminal conspiracy behind the action that led to nationwide rioting and plunged Hindu-Muslim relations to a new low.

 Tribal leader Shibu Soren was acquitted in 2010 in the Chirrudih murder case after 36 years! Before that was the dramatic conviction leading to his resignation from the Union cabinet, and then acquittal in the Shashi Nath Jha murder case.

 Judges must rule – in the courts -- not seek a larger role for themselves. Judicial overreach is not an answer to executive failures.