TWENTY years ago, four people were shot dead in Indian Gujarat. Of those killed, three were men and one was a 19-year-old woman, Ishrat Jahan.

It was alleged that the four were killed in a staged encounter. Years later, the Ishrat Jahan case reached the high court, where a special investigation team reported that it had been a staged encounter. An added controversy was the allegation that all four were allegedly members or associates of the Lashkar-e-Taiba.

However, this piece is not about the case as such, but more about the judge, Jayant Patel, who was involved in it at one stage.

As the acting chief justice of the Gujarat high court, he had, in 2004, ordered an investigation into the matter. In 2016, he was transferred to Karnataka, and then Allahabad a year later. The transfer to Allahabad took place just before the senior-most judge was about to retire, preventing him from becoming Karnataka’s chief justice. This was his second chance, as the first transfer had prevented him from becoming chief justice of Gujarat. On being transferred to Allahabad, he opted for retirement.

In another incident, a judge, Akil Kureshi, was recommended as chief justice of the Gujarat high court, but the government preferred to transfer him to Bombay. In the past, he had remanded Amit Shah to police custody in a different case of death during an encounter, which came to be known as the Sohrabuddin case.

When did we all become convinced that it was going to happen?

Both incidents are taken from Christophe Jaffrelot’s Modi’s India. The French scholar has been a close observer of politics in India for decades, and this particular book focuses on the period when Narendra Modi became the prime minister of the country. One part of the book focuses on the weakening of a number of institutions during this period, including the judiciary.

According to Jaffrelot, the Indian supreme court, which should have pushed back in defence of the high courts, did not do so. Prolonged confrontation with the government over the appointment of judges had ushered in chief justices and judges who weren’t too keen on confronting the government. This lack of resistance not only concerned the transfer of judges and appointments of high court chief justices, but also cases which could have been potentially embarrassing for the government or have hindered it. As an aside, to give a sense of the kind of delays that took place in the appointment of judges, the book quotes an incident in which four lawyers had been recommended as judges to a high court and the government took two years before it gave its decision, rejecting two of the four names.

At the time I read the book, this chapter did not appear as gripping as some of the other sections. But, for obvious reasons, the spine of the book has weakened considerably at this part in recent days.

Rumours of a wide-ranging judicial package began doing the rounds months ago. However, there was little clarity on what it may or may not include, because public statements by government officials were confusing and even contradictory at times. However, it did seem there was some intent somewhere to clip the powers of the judiciary, because the latter and the executive appeared at cross-purposes on several issues — reserved seats, bail, missing people, election tribunals. This ‘somewhere’ can include more than one city and more than one stakeholder.

As time passed, the rumours grew stronger and stronger. When did we all become convinced that it was going to happen? Was it when the chief justice issued a clarification on a conversation he had with journalists, which was reported as the judge declaring he wasn’t interested in an extension? Or was it when parliamentarians were called to Islamabad for an unending session that began towards end August?

I have to admit, on behalf of ordinary souls such as myself, that these public events turned niggling suspicions into ‘ah ha’ moments. And then came the recent interviews of government officials, in which they claimed they had the magic number for a two-thirds majority. This claim kept being made till midnight on Sunday, when the poor parliamentarians were finally sent home to get a good night’s sleep. (I hope the bathrooms they have access to are cleaner than the public toilets I have chanced upon during trips to parliament). It was then that the defence minister conceded the numbers were not there.

However, the comedy that is Pakistan had become obvious hours earlier on Sunday, when it became clear on television (rather than Islamabad gossip) that even cabinet members, perhaps even the law minister, had not seen the famous amendments. All this became ‘public’ primarily because of the JUI-F’s coy behaviour. It is hard to say what their reservations are, but it seems that one of the reasons was that the detailed draft had not been shared with them. Other reasons point to whatever carrots have been dangled before the party.

Another moment that was pure gold was Farooq Sattar’s statement: he explained that the amendment would allow the government to become more stable and resolve the people’s issues. His honesty was far more welcome than all the politically correct statements being issued by either the opposition or the government.

Since then, a draft has come to the fore, but it is hard to say if it’s the real McCoy. Hence, one can’t comment on it. And this is why I reached for Jaffrelot: both the cases quoted in the beginning of this article were about alleged extrajudicial killings by the law enforcement.

Indeed, however problematic the judicial appointment process is at the moment, it has allowed judges such as Babar Sattar and Shahid Karim to reach forums where our rights can be protected. When and if any Pakistani citizen (including those sitting in government at the moment) is faced with a disappearance or an arrest or even a case under Peca or the new defamation law, one can only hope the judge cares about the rights of the people. This ‘proposed amendment’ cannot get any more personal.

The writer is a journalist.

Published in Dawn, September 17th, 2024