Justice Markandey Katju, former Justice, Supreme Court of India and presently Chairman, Press Council of India just sent an article about the recent order of the Pakistan Supreme Court declaring that Mr. Gilani is not the Prime Minister. Justice Katju writes, “In my opinion the Pakistan Supreme Court has gone totally overboard, flouted all canons of Constitutional Jurisprudence, and is only playing to the galleries and not exercising judicial restraint. It is thereby upsetting the delicate balance of power in the Constitutional scheme.”
In his article, Justice Katju explains the concept of immunity and stresses the need for balance between the organs of the state. He writes that it may be published freely in any newspaper:
When I was a student of law in the Allahabad University I had read of the British Constitutional principle ‘The King can do no wrong”. At that time I did not understand the significance of this principle and what it really meant. It was much later, when I was in law practice in the Allahabad High Court that I understood its real significance.
The British were experienced and able administrators. They realized from their own long, historical experience that while everybody should be legally liable for his wrongs and made to face Court proceedings for the same, the person at the apex of the whole Constitutional system must be given total immunity from criminal proceedings, otherwise the system could not function. Hence the King of England must be given total immunity from criminal proceedings. Even if he commits murder, dacoity, theft, or some other crime the King cannot be dragged to Court and made to face a trial.
One may ask, why should the King be given this immunity when others are not? The answer is that in the practical world one does not deal with absolutes. The British were one of the most far sighted administrators the world has known. They realized that if the King is made to stand on the witness box or sent to jail, the system could not function. A stage is reached at the highest level of the system where total immunity to the person at the top has to be granted. This is the only practical view.
Following this principle in British Constitutional Law, almost every Constitution in the world has incorporated a provision giving total immunity to Presidents and Governors from criminal prosecution.
Thus, Section 248(2) of the Pakistan Constitution states: ”No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office”.
The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear the Court should not twist or amend its language in the garb of interpretation, but read it as it is.
I therefore fail to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistan President.
Moreover, how can the Court remove a Prime Minister? This is unheard of in a democracy. The Prime Minister holds office as long he has the confidence of Parliament, not confidence of the Supreme Court. (emphasis added)
I regret to say that the Pakistan Supreme Court, particularly its Chief Justice, has been showing utter lack of the restraint which is expected of the superior Courts. In fact the Court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard an flouted all canons of Constitutional Jurisprudence.
The Constitution establishes a delicate balance of power, and each of the three organs of the State, the Legislature, the Executive and the Judiciary must respect each other, and not encroach into each other’s domain, otherwise the system cannot function. It seems to me that the Pakistan Supreme Court has lost its balance and gone berserk. If it does not now come to its senses I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with the Pakistan Supreme Court, particularly its Chief Justice.
- Katju requests Pakistan to do a Chisti (thehindu.com)
- You: Pakistan Supreme Court disqualifies prime minister – Reuters (in.reuters.com)