Judges should do their duty, irrespective of the consequences
Markandey Katju 28 Apr 2023

Article 224(2) of Pakistan's Constitution is clear : elections to a Provincial Assembly must be held within 90 days of it dissolution, and it is the duty of the Pakistan Supreme Court to enforce the Constitution. However, many people, mostly Pakistanis, have asked me on twitter how can the Pakistan Supreme Court take on the Establishment in Pakistan, which seems to be determined to stall the Punjab elections.
It is true, as is often said, that judges have neither the sword nor the purse. But they have moral authority, provided their conduct is irreproachable, and they should do their duty fearlessly, irrespective of the consequences.

I would like to give some examples in this connection.

1. Qazi Sirajuddin was the Qazi-e-Subah of Bengal. There is a historical account of a case before him in 1490, recorded in Charles Stewart's 'History of Bengal'. The details are given in this article, so I am not repeating them
Now in this case, the sword and the purse were both with the Sultan, while the Qazi had only his moral authority. Yet he compelled the Sultan to appear before him and adequately compensate a poor widow whom the Sultan had accidentally injured. The Qazi knew that the Sultan could have his head cut off for daring to summon him, yet he did his duty.

2. Lord Coke ( 1552-1634 ) was the Chief Justice of England when James 1 was the King. At that time judges had no job security, and held office at the pleasure of the King. In other words, the King could sack them whenever he wished, without giving them a hearing or informing them what was the charge against them, and he had to give no reasons ( it was only in 1701 that by the Act of Settlement judges got job security, and could not be removed by the King, but only by impeachment by Parliament, in which they are to be informed of the charges against them, and are to be given a hearing ). 
In 1616 the Commendams case was being heard before a bench presided over by Chief Justice Coke, when Coke received a letter from the King asking him to suspend the hearing of the case and appear before the King with the record of the case. When Coke appeared before the King, the King said he will decide the case himself. Coke objected that the King had no right to decide cases. This made the King furious, and he said he too possessed reason, not judges alone. Coke replied that no doubt His Majesty possessed excellent reason, but legal cases have to be decided not on the basis of natural reason but on the basis of artificial reason, which means knowledge of the law, which takes years of study to acquire, and which the King did not have.
Lord Coke has recorded what happened :
 “Then the King said that he thought the Law was founded upon Reason, and that he and others had Reason as well as the Judges. To which it was answered by me, that true it was that God had endowed his Majesty with excellent science and great endowments of Nature. But His Majesty was not learned in the Laws of his Realm of England; and Causes which concern the Life, or Inheritance, or Goods or Fortunes of his Subjects are not to be decided by natural Reason but by the artificial Reason and Judgment of Law, which requires long Study and Experience before that a man can attain to the cognizance of it; and that the Law was the golden Metwand and Measure to try Causes of the Subjects, which protected his Majesty in safety and Peace: With which the King was greatly offended, and said that then he should be under the Law, which was treason to affirm (as he said). To which I said, that Bracton saith. Quod Rex non debet esse sub homine, sed sub Deo et Lege—that the King should not be under man, but under God and the Laws.”
For this act of defiance, Lord Coke was dismissed from his post of Chief Justice, and later he was imprisoned for 9 months. However, he is still remembered for doing his duty.

3.  Indian Prime Minister Indira Gandhi's election to Parliament was declared illegal in 1975  by the Allahabad High Court as she used election malpractices, and she was disqualified from contesting elections for 6 years. Thereupon, to hold on to power, she declared an Emergency, and suspended the constitutional rights of citizens, including the right to life and liberty, freedom of speech etc. Consequently thousands of politicians of Opposition parties and others were arrested and jailed without trial for long periods on trumped up charges.
Several High Courts held their detention illegal, but when the matter came up in appeal to the Supreme Court, by a 4-1 verdict ( Justice HR Khanna dissenting ) the Court held that since Article 21 of the Indian Constitution, which guarantees the right to life and liberty, had been suspended, a person could be deprived of his life or liberty at the sweet will of the executive, which could not be challenged in court
In his dissenting judgment Justice Khanna held that the right to life and liberty were not created by the Constitution, but were inherent in human beings
Because of his brave dissent, Justice Khanna lost his chance of becoming the Chief Justice of India, since he was next in line of succession being the seniormost judge in the Supreme Court after Chief Justice AN Ray, but he was superseded by Indira Gandhi. The day before he gave his judgment he told his wife that he will lose the Chief Justiceship, but he has to do his duty.

4. Lord Atkin's famous dissent in Liversidge vs Anderson , 1942 was another act of judicial bravery, partiularly since it was given when England was enmbroiled in the Second World War, and was waging a life and death struggle against Nazi Germany
Emergency powers in Regulation 18B of the Defence (General) Regulations 1939 permitted the Home Secretary to intern people if he had "reasonable cause" to believe that they had "hostile associations". Sir John Anderson, the Home Secreary of UK, exercised this power in respect of Robert Liversidge, committing him to prison but giving no reason. On appeal, the 5 judge bench of the House of Lords had to decide whether the court could investigate the objective basis for the reasonable cause, or had to accept the opinion of the Home Secretary. The majority held that the Home Secretary's opinion was final, and the court could not enquire into the material on the basis of which it was formed. . 
Lord Atkin wrote a powerful dissent, holding that the court could see the material on the basis of which the Home Secretary formed his opinion. In other words the Home Secretary's opinion was subject to an objective, not subjective, test
For rendering this judgment Lord Atkin was cold shouldered and ostracised by his colleagues, but his verdict has become immortal, and is now universally acepted as correct.

5. In Plessey vs Ferguson, 1896 the US Supreme Court by a 7-1 verdict upheld the racial segregation laws in USA by applying the devious doctrine of 'separate but equal'. 
The sole brave dissent was of Justice Harlan, who said '' Our Constitution is colour blind '', for which he has become immortal ( while all the 7 majority judges have been forgotten )

I request that this article is communicated by someone to the Pakistan Supreme Court judges hearing the case related to holding elections to the Punjab Assembly. The Court rightly set aside the order of the Election Commission of Pakistan postponing the electiuons to 8th October, but I am keeping my fingers crossed about what the Court will do next.

By Justice Markandey Katju, former Judge, Indian Supreme Court

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