determine whether or not the opportune moment to mete out justice in a particular instance has arrived. The debate regarding whether or not it is in the larger national interest to strictly enforce provisions of the law and the Constitution that could possibly have political repercussions has no place within a chamber of justice. In a private dispute between two individuals they can mutually agree to settle the matter amicably. But when in comes to upholding constitutionally guaranteed rights and responsibilities, no individual or institution has the right to determine that a certain amount of deviation from the Constitution can be acceptable, or that one can let sleeping dogs lie in order to invest in the longevity of the political process.
The judiciary is the primary institution mandated with the task of administering the Constitution. Not touching hard cases – hard not because of the involvement of complex questions of law but because of the linked political consequences – may seem strategically expedient at times. But in the end there is hardly any sensible distinction between shirking responsibility in enforcing the law against the high and the mighty and condoning unconstitutional acts. Within the wide scope of dereliction of duty, it is only a matter of degree that separates crimes or commission and omission. We have had long periods of constitutional deviation, not because people misunderstood the law, but because they thought it was all right to breach it, and that they would get away with their malfeasance. Consequently, we have a large number of high-profile cases pending in courts that have blatant unconstitutionality writ large on them. The skeptics then wonder why such cases pending for years, or even decades, remain consigned to dingy record rooms of our apex court without making it to the cause list, while others get heard and decided in a matter of days.
There certainly exists an opinion that the independent-minded judges now returned to their high offices should focus on consolidating themselves and their court and not meddle in controversial matters. But is this not the same mindset that led to the demise of an independent judiciary in the first place? If the court is vested with no discretion to refuse taking judicial cognisance of legal controversies and crimes, can turning a blind eye to cases involving serious constitutional infractions be explained in terms other than strategic expediency – the accredited author of the doctrine of necessity? Have we gone around in circles because men in robes have been unable to find effective ways to make the Constitution a living document, because they were too timid to do so, or because they simply didn't want to? These are thorny questions. But our reconstituted apex court must address them if it wishes to liberate rule of law from the clutches of expediency.
Statements from the bench claiming that the doctrine of necessity is dead will not be enough to change the mindset that keeps bringing this perverted doctrine back to life every couple of decades. It is not hard to come up with a short wish list of judicial actions that could help dismember the doctrine of necessity.
One, the apex court needs to clearly propound a doctrine of constitutionality in its detailed decision in the PCO Judges Case. It has been opined that the judgment must overrule not only the Tikka Iqbal case that validated Nov 3, but also the Zafar Ali Shah case and others before it that justified military coups. This can only happen with the court clearly determining the limits of its own jurisdiction. The court needs to state unequivocally that it is a creature of the Constitution and deriving its mandate from this fundamental law, it simply possesses no authority to validate any action that is unconstitutional. The fiction that a constitutional court mandated with interpreting the Constitution can somehow assume the authority to justify or validate acts prohibited by the same document, must be put to rest.
And, two, there are at least four crucial legal controversies that the court must not ignore in the new judicial year: the ISI case of creating the IJI, the missing persons' case, Musharraf's unconstitutional actions of Nov 3, and the NRO cases. That the ISI case is a can of worms might be an understatement. But refusing to address the fundamental constitutional issues that it throws up is to concede as acceptable the failure of congruence between the law as announced and its actual administration. This case relates to matters as basic as the separation of powers between state institutions, our civil-military imbalance despite constitutionally mandated civilian control of the military, the political culture of deals, deceit and kickbacks, the military culture that imbibes senior khakis with a god-complex and the ability of the ISI to play godfather with maddening audacity.
Had the ISI case been decided a decade or so back, we might not have a missing persons' case. But we now do and it is imperative to not just recover the missing individuals but also take action to undo the depraved procedures as well as sociology that vitiate the basic guarantee of personal security and due process promised to each citizen by our Constitution. The Musharraf case is the simplest, and yet hard enough. It is simple because the apex court has already declared his actions in question unconstitutional. It is hard because it involves the former incumbent of an office that is reputed to be the most powerful in the country. The NRO and the Musharraf case have the same fundamental issue in common: is law the handmaiden of the mighty or is it equally applicable to all citizens notwithstanding their standing in the society?
The restoration of judges was never seen as an end in itself. The rule-of-law movement was fuelled by the optimism that restoration would resurrect an independent judiciary, which in turn would breathe life into the sacred promises of our Constitution. The question before the court in this new year is whether it will act smug on challenging legal issues or discharge its responsibility in ensuring that the Constitution remains a live social contract between the citizens and the state, and not a dead letter.
Email: sattarpost.harvard.edu