Uplifting the judiciary in the sub-continent

Once in a while a judge comes on the scene to pull out the judiciary from the decadence in which it is stuck. In Southeast Asia, it is rare because it makes judges feel safe to stay within the precincts of caution and convention. Still some judges in India, Pakistan and Bangladesh have dared the establishment, no doubt, suffering in the process. One such example is that of Pakistan's Chief Justice Iftikhar Mohammad Chaudhry who has freed the judiciary from the military control which the courts have generally felt. He was no hero, but he became one when the top five army officers badgered him to resign and he refused to do so.

Pervez Musharraf, then also the army chief, dismissed him, humiliated him and detained him and his family in their house, without any outside contact. Even when the Musharraf party, the Pakistan Muslim League (Quaid), was routed at the polls, he did not release Chaudhry. It was a vendetta by the military dictator against an ordinary person. Pakistan's new Prime Minister, Yousuf Raza Gilani's first order after taking the oath of office was the release of Chaudhry.

His restoration and those of 60 other judges who refused to take the oath of allegiance to Musharraf is a challenge to the new government. That both Asif Ali Zardari, co-chairman of the Pakistan People's Party and Nawaz Sharif, chairman of the Pakistan Muslim League (Nawaz), have pledged to reinstate them within a month is an assurance on which their government's credibility rests. The mood of the people, particularly the lawyers, is such that the government will not be able to function until the judges are restored. The courage shown by Pakistan's nascent democracy so far is laudable.

Death sentence

The judiciary in Bangladesh rose to the occasion when it gave the death sentence to the military officers who had assassinated Mujib-ur-Rahman, father of the nation. It is because of politics that they have escaped the sentence so far.

India is fortunate to have an independent judiciary since freedom. But two judges, H.R. Khanna of the Supreme Court and Jagmohan Lal Sinha of the Allahabad High Court, raised it to great heights at a time when the judiciary was timid and when it was a fashion to feather one's own nest. Khanna, during the emergency, spoke the truth knowing well the consequences he would face. He differed with his other four colleagues and upheld the inviolability of fundamental rights. He was superseded and he resigned in protest.

Yet his judgment gave hope to the people of India that there were judges to uphold the truth even when the tallest in the country had compromised to stay in office. Khanna told the nation that the fundamental values of a democratic society demanded that every person must display a degree of vigilance and willingness to sacrifice. This is still a distant goal for India.

Another judge from Allahabad High Court, Sinha, unseated the then prime minister Indira Gandhi for having used the official machinery during election. He debarred her from holding any elective office for six years. The law was clear that any assistance sought from a government servant "for the furtherance of the prospects" of a candidate's election was a corrupt practice. Yaspal Kapoor, Gandhi's Officer on Special Duty, at that time had worked for her during election and the UP official had built rostrums from where she addressed the rallies. Both Khanna and Sinha died earlier this month. But the nation has already forgotten them and their contribution to the judiciary's independence.

Despite such examples, the judiciary in South-East Asia is losing sheen. People's faith in obtaining justice is weakening, not only due to inordinate delays in getting the cases heard but also due to the increasing impression that the judges can be managed. Clients and lawyers reportedly conspire to have hearings fixed before a particular judge. The word, corruption, was not heard some years ago. Today, it is on everybody's lips.

Not long ago, judgments were pro-people, pro-weak and pro-environment. Laws were interpreted in such a manner that a common man got relief and the greenery was protected against the marauding builders. The judiciary, particularly after globalisation, has tended to side with riches, power and those who destroy the flora and fauna. The judiciary has also tried to arrogate itself the authority which belongs to the legislatures.

In Pakistan, the commitment was to the military till the other day because of the absence of democracy. Bangladesh is still a grey area. But for Indian Law Minister H.R. Bharadwaj to say that the selection of judges will take into consideration their "political affiliation or leaning" gives a peep into the Congress thinking. I am amazed at the collective silence of political parties and bar associations. At least, I have begun to have a sense of insecurity and injustice.

Kuldip Nayar is a former Indian High Commissioner to the UK and a former Rajya Sabha MP.