A bizarre interpretation of Article 63 A of the Constitution through a short order by a majority of 3:2 was the first rabbit from the hat, its cogency and legal sustainability amply dented by two dissenting judges, Justices Miankhel and Mandokhel, who admirably refused to read words into the said Article and preferred not to become accomplices in creating yet another distortion in our already defaced body of jurisprudence.
It has to be said that the aforementioned two judges somehow spoiled Chief Justice Bandial’s conceived future use of the prerogative to constitute ‘reliable’ benches involving matters of public importance (read political cases) which meant effectively ignoring senior judges.
Coming back to Mrs Isa’s interview, as one watched her jaw droppingly candid and disturbingly direct narration of her treatment and that of her family, one question kept cropping up: Chief Justice’s prerogative to constitute benches under Order 1 Rule XI of the Supreme Court Rules. The troubling tale of the family’s humiliation at the hands of the state amidst personal tragedy of her father’s affliction with cancer and subsequent death, albeit all told with remarkable equanimity and poise, is a dark and forgettable blot on our collective memory.
The issue has become all the more germane to the crisis the Supreme Court, like in the past, has contrived to find itself in involving the hearings pertaining to the long march announced by the PTI and the subsequent rioting. The composition of the bench which initially allowed the march after procuring undertakings from both sides headed by Justice Ijaz-ul-Ahsan and a larger bench headed by the Chief Justice had no major surprises to speak of. The unilateral exercise of powers relating to constitution of benches exclusively by the CJ is so normalised in the legal and political discourse that any talk of consultation with senior judges is considered a departure from the accepted norm and, hence, an anomaly and not a validly legal and constitutional requirement which it certainly is.
The omnipresence of Justice Ijaz-ul-Ahsan, for example, in benches hearing Panama cases to construction of hydro-electric dams to inspection of hospitals to removal of encroachments in Karachi like the demolition of Nasla Tower to the latest one involving long march by a political party leading to a dharna etc (the list is far too long to be reproduced here for lack of space), makes one wonder, is my lord a health expert, a civil engineer and a political scientist rolled into one apart from being a brilliant jurist? At a seminar recently, former chief justice Gulzar Ahmad forcefully defended the chief justice’s prerogative to constitute benches in the belief that the same is an exclusive right of the top judge. My lord conveniently forgot that the Supreme Court Rules 1980 were framed by the apex court itself—deriving its powers to do so under Article 191 of the Constitution—making those prone to legal challenges on the touchstone of constitutionality like any Rules thus framed.
On 12 January, 2018 four sitting judges of the Supreme Court of India took the unprecedented step of calling a press conference to air their grievances against the style of functioning of the then CJI, Dipak Misra which sent shock waves throughout the country. Amongst other grievances that Justices J Chelameshwar, Ranjan Gogoi, Kurian Joseph and Madan Lokur carried against the then CJI, the one pertaining to his prerogative to constitute benches comprising of junior judges and assigning important cases has close similarities with how benches are constituted in the Supreme Court of Pakistan. The Indian press went to unusual lengths to call it ‘bench-fixing’ which, according to the Hindustan Times, was an unvoiced grievance but it clearly was a message conveyed between the lines.
To avoid the impression in the public that a particular matter has been fixed before a certain bench in order to get a particular result, a set of guidelines relating to setting up of benches and allocation of work may be issued which are approved by the Full Court or at least by five senior most judges of the Supreme Court
Although, after a passage of time, the Supreme Court of India has tended to downplay the significance of such a press conference, the genie is already out of the bottle. However, the net result has been positive and although the CJI has kept the power to constitute benches exclusively to himself and incoming CJIs after CJ Misra have consulted senior judges while fixing important cases. The debate unleashed by the aforesaid four judges certainly has had its positives. For example, Amrendra Sharan a senior lawyer, summed it up quite eloquently:
“CJI is the master of the roster and he should remain the master of the roster. There cannot be any consultation. But it must appear to the people that the distribution is fair, the interest of everybody is protected and that it is not used to get a particular result.”
Closer to home, to avoid the impression in the public that a particular matter has been fixed before a certain bench in order to get a particular result, a set of guidelines relating to setting up of benches and allocation of work may be issued which are approved by the Full Court or at least by five senior most judges of the Supreme Court. When Imran Khan violated the court’s order not to assemble at D-Chowk, contempt of court proceedings were initiated by the Attorney General for Pakistan.
The inescapable conclusion that could be easily drawn from the remark of the Chief Justice during the said proceedings was that the bench had been set up to get a particular result and that interests of all the parties would not, thus, be protected. In an age of lightning fast communication, my lord remarked along the lines of, “it is possible that the court’s order had not been communicated to Mr Imran Khan properly”. I rest my case!