“It has no right to dismiss a Prime Minister or overrule the constitutional immunity given to the President,” Justice Markandey Katju observed, and criticized the Supreme Court of Pakistan for unseating Prime Minister Yousuf Raza Gilani, as it has disturbed the delicate balance of power in the constitutional scheme. He was of the view that "Pakistan Supreme Court has gone overboard, flouted all canons of Constitutional jurisprudence and is only playing to the galleries and not exercising judicial restraint".
Pakistan Supreme Court had on June 19 declared that Gilani ceased to be Prime Minister with effect from April 26 when he was convicted of contempt of court for refusing to reopen graft cases in Switzerland against President Asif Ali Zardari.
But Justice Katju, a retired judge of the Indian Supreme Court, took strong exception to it.
“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,” Justice Katju said.
"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," he said.
Justice Katju quoted Section 248(2) of the Pakistan Constitution, according to which, no criminal proceedings can be instituted or continued against the President or Governor in any Court during his term of office.
"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," the PCI chairman said.
Accusing the Pakistan Supreme Court, particularly its chief justice, of showing “utter lack of restraint” expected of superior Courts, Justice Katju said: “The Constitution establishes a delicate balance of power, and each of the 3 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.”
Katju on Presidential Immunity
Katju had elucidated his views on the matter of presidential immunity, while speaking to a convention held at the Indian Society of International Law a few years ago. This lecture, which was delivered by Katju while he was a serving judge, was also published as an article in the Indian newspaper, The Hindu, titled ‘Contempt of Court: Need for a Second Look.’
Given the current state of affairs in Pakistan, this lecture merits a mention here.
According to Katju: “In a democracy, people have the right to criticise judges. Why then should there be a Contempt of Court Act, which to some extent prevents people from criticising the judiciary?”
Pakistan’s judiciary, evidently, does not share the same opinion as a number of high-profile contempt cases involving federal ministers, businessmen and other politicians are currently pending with the Supreme Court.
Katju maintains that the basic principle of a democracy is that the people are supreme. Thus, all authorities – be they judges, legislators, ministers or bureaucrats – are servants of the people. “Surely, the master has a right to criticise his servants, if they do not act or behave properly.”
In a democracy, the purpose of resting the power to prosecute for contempt is only to enable the court to function,” he said. “The power is not to prevent the master (people) from criticising the servant if the latter does not function properly,” Katju continued with his metaphor.
Katju added that the best shield or armour for a judge is his integrity, impartiality and knowledge. “An upright judge will hardly ever need to use the contempt power. A judge should have the equanimity and inner strength to remain unperturbed in any situation.”
“Much of our contempt law is a hangover from British rule, under which India was not free and democratic. How can the law of those days be applicable today?”
However, he agrees the law is useful, and even necessary in certain situations. “If someone jumps up on the dais of the court, runs away with a court file, or threatens a party or witness,” the law will help protect the court’s sanctity, he said.
The view about having this contempt power was first introduced by Wilmot J in England in 1765 in a judgment that was, in fact, never delivered. Katju is of the opinion that in a monarchy, the judge actually exercises the delegated functions of the king, and requires the dignity and majesty a king must have to command such obedience.
He feels the subcontinent should adopt a fresh and modern democratic approach similar to that of England and the United States where contempt jurisdiction is very sparingly exercised. “A judge is not bound to take action for contempt, even if contempt has, in fact, been committed,” he observed.