By P.K.Balachandran
Colombo, March 30:
By a strange coincidence, the Indian and Pakistani judiciaries have come strain at the same time and for the same reason – pressure from the powers-that-be.
In India, the Supreme Court Chief Justice is under pressure from pro-government lawyers backed by the Prime Minister and in Pakistan, Islamabad High Court judges are seeking advice from the judicial watchdog on how to resist pressures from intelligence agencies.
On March 25, six judges of the Islamabad High Court had written a letter to the Supreme Judicial Council (SJC), the judicial watchdog, seeking its advice on how to tackle “interference and intimidation” from the Inter-Services Intelligence (ISI), Pakistan’s intelligence agency.
In India, 600 lawyers, obviously with pro-government leanings, had written to the Chief Justice of the Supreme Court D.Y.Chandrachud, alleging that a group of lawyers (presumably sympathetic to the opposition) are trying to influence the apex court and urged him not to cave in.
The political affiliation of the protesting Indian lawyers was clear when Prime Minister Narendra Modi backed them publicly. He tweeted on March 28 to say: “To browbeat and bully others is vintage Congress culture. 5 decades ago itself they had called for a “committed judiciary” — they shamelessly want commitment from others for their selfish interests but desist from any commitment towards the nation. No wonder 140 crore Indians are rejecting them.”
Modi recalled how the opposition Congress (under Prime Minister Indira Gandhi) had “called for a committed judiciary” fifty years ago.
This unusual development puts Chief Justice Chandrachud in a very tight spot, but since he is known to be upright, he could tackle the situation with artfully.
Clearly, it is BJP vs the Congress led opposition now
Pakistan Case
In the Pakistan case, the judges of the Islamabad High Court said: “We believe it is imperative to inquire into and determine whether there exists a continuing policy on part of the executive branch of the state, implemented by intelligence operatives who report to the executive branch, to intimidate judges, under threat of coercion or blackmail, to engineer judicial outcomes in politically consequential matters.”
According to Al Jazeera, the cases of alleged intimidation and coercion by the judges in “politically consequential” cases related to those against the main opposition leader and jailed former Prime Minister Imran Khan.
More than 100 cases against Imran were brought before the IHC. In regard to these the six signatory judges said: “Considerable pressure was brought to bear” on them by the spy agency.
They said a judge’s brother-in-law was abducted by “individuals who claimed to be operatives of the ISI” and “tortured into making false allegations”. Another judge said he found secret cameras in his living room and bedroom.
“We, therefore, request that a judicial convention be called to consider the matter of interference of intelligence operatives with judicial functions and/or intimidation of judges in a manner that undermines the independence of the judiciary,” the letter said.
Lawyer Abid Saqi told Al Jazeera there is a long history of interference in judicial affairs from “external forces”, adding that the contents of the letter were “based on reality”.
The onus now lies on Supreme Court Chief Justice Qazi Faez Isa to act on the letter by the judges. His steps will reveal how serious he is about protecting the independence of the judiciary. He did discuss this with 15 Supreme Court judges, but was decided is not known.
Indian Case
Meanwhile in India, 600 lawyers, including leading counsel Harish Save and Bar Council of India chairperson Manan Kumar Mishra, had written to the Chief Justice of India D.Y.Chandrachud, alleging that a “vested interest group” is trying to put pressure on the judiciary and defame courts “on the basis of frivolous logic and stale political agendas”.
“Their pressure tactics are most obvious in political cases, particularly those involving political figures accused of corruption. These tactics are damaging to our courts and threaten our democratic fabric,” the letter dated March 26 said.
“Their antics are vitiating the atmosphere of trust and harmony, which characterises the functioning of the judiciary,” they added.
The letter targeted a section of lawyers (without naming any of them). “Some elements are trying to influence the judges in their cases and spread lies on social media to put pressure on them to decide in a particular way,” they alleged.
“They have also stooped to the level of comparing our courts to those countries where there is no rule of law and accusing our judicial institutions of unfair practices.”
The lawyers said all this is happening when the country is headed for elections.
“This interest group creates false narratives of a supposed better past and golden period of courts, contrasting it with the happenings in the present.”
“Staying silent or doing nothing could accidentally give more power to those who mean to do harm. This is not the time to maintain a dignified silence as such efforts are happening since few years and too frequently,” they said, adding that the CJI’s leadership is crucial in these “tough times”.
Though the letter did not mention specific cases, it has come when the Supreme Court is dealing with high-profile cases of alleged corruption involving opposition leaders.Opposition parties have accused the Narendra Modi government of arresting their leaders to disable their election campaigns.
The cause celebre is of course the arrest of the Delhi Chief Minister and the Aam Admi Party supremo Arvind Kejriwal in the Delhi excise policy case weeks before parliamentary elections.
Modi’s taking sides in this controversy made Congress President Mallikarjun Khargeremind Modi that in 2018 four judges of the Supreme Court were forced to hold a press conference to let the world know about “interference” from his government. Justice Kurian Joseph even claimed that Chief Justice Dipak Misra was “remote-controlled by an external source”.
However, under the stewardship Chief Justice D.Y.Chandrachud the Supreme Court has been asserting its independence. It struck down the electoral bonds, an opaque campaign-finance instrument that had mainly benefited the ruling BJP.
However, the Indian judiciary’s overall record has not been without blemishes. In a piece on the Indian judiciary, Economist said: “India’s constitution makes it among the world’s most powerful supreme courts. Yet anyone counting on it emerging as a strong check on Mr Modi’s authoritarian drift is liable to be disappointed. The court has been much less willing to challenge the BJP government on its political priorities.”
“Despite its recent activities, a combination of structural flaws and political pressure has severely diminished its role as an independent bulwark against the excesses of the ruling party.” (see: https://www.economist.com/asia/2024/02/22/how-independent-is-indias-supreme-court).
The Supreme court’s power was damaged during Indira Gandhi’s spell of authoritarianism in 1975 and it regained its independence after her exit. Yet the court has been extremely reluctant to challenge Modi on more hot-button issues, the Economist pointed out.
“It approved the government’s move in 2019 to strip Jammu and Kashmir of Statehood. In 2022 it not only cleared Modi of complicity in anti-Muslim riots in Gujarat in 2002, when he was the Gujarat Chief Minister, but suggested that the petitioners should be prosecuted for abusing the judicial process.”
“When the court cannot bring itself to side with the government in such hypersensitive cases, it often refrains from passing judgment—a tactic known as judicial avoidance. Some controversial cases, such as a raft of petitions filed against the Citizenship Amendment Act, a law that discriminates against Muslims, have had hearings postponed for years.”
“The ruling on electoral bonds came seven years after their introduction was first challenged. The court thus gave the ruling party ample time to benefit from what always looked like a questionable instrument.”
”Some of this appears straightforwardly a result of political pressure. Lawyers say the government drags its feet on clearing the appointment of judges it dislikes and accuse it of trying to pick and choose between those that hear sensitive cases,” The Economist said.
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