Pakistan and India might be hostile towards each other but their current constitutional and political discourse seems to have some sort of camaraderie. In the wake of recent developments, it is quite evident that the centers of the said countries and the respective supreme courts seem to be at loggerheads. This is a coincidence at its best, as the responses of centers and supreme courts of both neighbors, too, are mirror images of each other.
Pakistan’s Institutional Crisis
In Pakistan, the center, spearheaded by the coalition of 13 parties, looks to the Supreme Court with mistrust, owing to the latter’s resonating mistrust and alleged sympathies with the major opposition party. In India, the center led by the Bharatiya Janata Party (BJP), too, seems to have an untidy relationship with the Indian Supreme Court, owing to the latter’s urge to maintain the stature of the court of law as an independent constitutional identity. The course adopted to achieve the said aim, in the respective neighbors is identical and that is to use the legislative powers of the parliament in this regard.
Pakistan, as of today, is going through a major political crisis that revolves around inter-party conflict and disagreement over elections, particularly in Punjab and Khyber Pakhtunkhwa, where provincial assemblies were dissolved by the majority party in the respective provinces. This led to the demand for early general elections, which further aggravated the overall situation and ultimately resulted in inter-institutional clashes.
The Supreme Court of Pakistan took suo-motu against the allegedly conscious derailment of elections in the aforementioned provinces by both the federal government and the election commission, as the latter gave the election date, which exceeded the constitutional period of 90 days. As the matter pertained to national interests, fundamental rights, and the constitution, the Supreme Court declared the said election commission’s order unconstitutional and ultimately gave 15th May as the election date in Punjab.
Then began the inter-institutional clash, with the parliament passing the Supreme Court (Practice and Procedure) Act, 2023, which aimed to restructure the exercise of suo-moto power by the Supreme Court. A three-member committee made up of senior judges, including the chief justice, would be given the authority to take suo-motu notice. Additionally, it incorporates the right to appeal against the Supreme Court’s decisions in suo-motu cases.
However, the court of law preeminently halted the application of the said legislation with the remark that its enactment didn’t matter. Despite Article 68 of the Constitution of the Islamic Republic of Pakistan, which forbids the judges of the High Courts and the Supreme Court to be the talk of the Parliament, the parliamentarians resorted to criticizing the judges of the Supreme Court.
In another development, the Contempt of Parliament (Senate and National Assembly) Bill was passed by the National Assembly to safeguard the parliament’s supremacy, and if someone is found guilty under the stated legislation, that person will be jailed for six months with a fine of PKR 1 million. Moreover, the coalition government, along with its legislators, has not shied away from spitting anger and disbelief at the Supreme Court.
India’s Institutional Crisis
Coming to India, the Modi-led BJP passed the 121st constitutional amendment bill along with the National Judicial Appointments Commission Bill. These legislations aim to involve the central government proactively in judicial appointments by replacing the decades-old collegium system with a federal commission that would include the law minister. However, the Indian Supreme Court has struck down the said amendment by declaring it null and void.
Since then, there has been a constant delay on the part of the central government in formally appointing judges of the high courts and the Supreme Court. Moreover, it has become a common sight to see vacancies in the high courts and the Supreme Court, which has rendered a delay in justice owing to the pendency of cases in large numbers. This is evidenced by the Indian Justice Report (IJR) 2022, which stated that, as of December 2022, against a sanctioned strength of 1,108 judges, the high courts were functioning with only 778 judges.
The May 11 verdict of the Indian Supreme Court in the matter “Center vs. Delhi Government Case” was unanimously decided in favour of the Delhi government on the issue of who controlled the bureaucracy in the national capital. However, the center did not seem happy with regard to the said development. Resultantly, it bypassed and nullified the Supreme Court ruling by proclaiming an ordinance.
On one hand, the central government has filed a review petition in the Supreme Court regarding its May 11 verdict, while on the other hand, the Kejriwal-led Delhi government has challenged the constitutionality of the proclaimed ordinance in the Supreme Court. Thus, the Indian Supreme Court, again, has to take up a national matter and find itself adjudicating matters in which there is a party that utterly distrusts it.
Putting all the aforementioned discussion in a nutshell, the central governments of the respective countries see their respective apex courts with distrust. Thus, they have resorted to using the legislative powers of the parliament proactively. All sorts of legislative tools and techniques have been utilized, including acts, constitutional amendments, and ordinances, in Pakistan and India by the state legislatures in order to bypass the highest court of appeal.
This increasing trust deficit can result in anything but a viable and peaceful coexistence. Hastiness on the part of the central governments in both India and Pakistan is making every legislative act doubtful and threatening the power base of the Supreme Courts in the respective countries. It has to be understood that every institution has its own ideology and anything which poses a threat to that ideology has to face resistance.
Thus, this tug of war will continue until one side gives in, and as general elections are due in Pakistan in October 2023 and in India in April or May 2024, it is most likely that with the change in government, this tug of war would cool off.
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