Over the past few months, retired Justice Markandey Katju of the Indian Supreme Court has expressed concern over the trajectory of Pakistan’s Supreme Court through its exercise of judicial review. He graciously agreed to discuss these issues for Dawn.com, as well as recommend a judgment he wrote while on India’s Supreme Court that could be useful for Pakistani jurists to explore.

The practice of judicial review exists in Commonwealth countries, including India and Pakistan and allows the court to assess the constitutionality of laws and acts by public officials. Justice Katju and other legal scholars have argued that the overuse of judicial review can lead to structural instability in a democracy and subvert of the people’s will. Katju explained the need for judicial restraint in his opinion for the case Government of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi.

The opinion relies on the theory of renowned jurist Professor James B. Thayer in asserting that “the court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional.” Thus, the court’s presumption should be in favor of approving laws passed by the people’s representatives, while remaining vigilant for any action by government that could violate their fundamental rights.

In Pakistan, over the past few years, the presumption by the apex court has weighed against the PPP-led parliament, leading to the dismissal of several laws and the disqualification of the prime minister. The court acted rightfully in some instances, but if their judgments are seen collectively, they seem to display an inflexible attitude that eliminates the possibility of judicial deference for the decisions of elected leaders.

Yet, the court has refuted claims that it is on a “collision course” with the elected branch of government. Chief Justice Iftikhar Muhammad Chaudhry stated that those wishing for a clash between the judiciary and other institutions should remember that “such a clash would never take place.” He went onto state that “democratic governments will function in this unfortunate country” and that the judiciary would work cooperatively with elected officials.

It seems that the court is taking notice of its structural role in a democratic system, which requires limits on the exercise of judicial review and a level of deference for elected officials.  In the Laxmi Devi case, the Indian Supreme Court cited to American jurist Alexander Bickel who asserted that judicial review was a counter-majoritarian force, because it “thwarts the will of the representatives of the people; [the court] exercises control, not on behalf of the prevailing majority, but against it."  Justice Katju cited to the probing questions of jurist Wallace Mendelson: “Are any nine men (Supreme Court judges) wise enough and good enough to wield such power over the lives of millions? …. [I]f the Supreme Court is to be the ultimate policy-making body without political accountability how is it to avoid the corrupting effects of raw power? Can the court avoid the self-inflicted wounds that have marked other episodes of judicial imperialism?”

Allegations of judicial imperialism, or a judicial coup surfaced against Pakistan’s court in recent months due to its unilateral dismissal of Prime Minister Yousuf Raza Gilani. Gilani was removed by the court after refusing to write a letter reinstating Pakistan’s interest in a Swiss case against President Asif Ali Zardari.  Though the court may have had the right to hold the Prime Minister in contempt, the Constitution required his disqualification to be executed by the Speaker of Parliament and the Election Commission under Article 63(2). Justice Katju wrote that the dismissal of Prime Minister Gilani by the Supreme Court was improper because “the Prime Minister holds office as long he has the confidence of Parliament, not confidence of the Supreme Court.”

Some argue that the Justices set up a dangerous precedent with this decision, but the court has recently addressed this critique by exercising judicial restraint in the case of newly appointed Prime Minister Raja Pervez Ashraf.  Many expected the court to repeat its removal of Gilani by holding PM Ashraf in contempt of court, ratcheting up the judicial showdown. However, the court granted Ashraf an extension to look into the matter, and assured him that if the letter was written to the Swiss authorities, the Supreme Court would “facilitate the government and “take care of any anticipated effect.”

By making such statements, the court addressed the concern shared by Gilani and Ashraf that writing the letter to the Swiss would cause President Zardari to face an international criminal prosecution. The court’s restraint in dealing with PM Ashraf displays a potential for the judiciary acting in collaboration with elected officials, rather than against them.

Alternatively, if a collision course were adopted by the judiciary, politicians might eventually refuse to take any action, even when necessary, knowing that their decisions will be subverted by judges. Or, elected officials could decide to fight back against court intervention. Justice Katju states, “If the Pakistan Supreme Court does not now exercise restraint and continues on its confrontationist path, the Pakistan Government may resort to a similar action, for which the court itself will be squarely responsible.”

However, the concept of restraint does not mean that the court must stand aide when gross violations of fundamental rights occur. In the earlier cited Laxmi Devi case, Katju explained that the judiciary must be activist when it comes to the protection of fundamental rights because “freedom and liberty is essential for progress, both economic and social.”

There are several issues that constitute a gross violation of fundamental rights in Pakistan, especially when one considers the living nightmare that religious minorities are experiencing today. There have been countless cases of minorities being targeted with wrongful allegations of violating the Blasphemy law.  Oftentimes, improper evidence is introduced against the accused, which is astounding when one remembers that the death penalty can be levied in blasphemy cases.

Nothing could be more integral to the protection of fundamental rights than the court taking action to stop discriminatory prosecutions under the Blasphemy Law. Yet, we have seen little effort from the apex court to address this issue, as it seems more preoccupied with dealing with the corruption of elected officials.

The other major issue, especially in Balochistan, is the case of enforced disappearances by the Inter-Services Intelligence (ISI) and the Frontier Corps (FC).  The Supreme Court has taken notice of the disappearances and gone further than any of their predecessors in attempting to hold the military accountable for their acts. However, their investigations have been stymied, and the question that must be answered is whether the court was incapable of stopping the military’s gross aggression in Balochistan due to the court’s diverted focus on checking People’s Party-led government.

When asked about the disappearances and the court’s ability to check military actions, Justice Katju stated: “In civil rights cases (which include disappearance cases) the court should be activist…. In matters relating to the military the court should act with restraint, and give respect to the army… unnecessary confrontation with the Army should be avoided. However, if the army personnel do something clearly illegal it should be struck down.”

Therefore, we see an overall theme emerge from Justice Katju’s recent statements:  the court should exercise judicial restraint and avoid confrontations with elected branches of government as a means of ensuring the structural integrity of the democratic system. The court should offer deference and cooperation to elected officials generally, but when an act violates fundamental rights beyond a reasonable doubt, the court should feel free to exercise its power of judicial review. The court has shown its maturity as the justices seem to be heeding the advice of Justice Katju and other jurists who support Pakistan’s judiciary but argue that the court must exercise restraint in some instances.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.