The prime minister has of late wanted to know whether chief justice Surendra Kumar Sinha consulted anyone before agreeing to have the Lady Justice statue put up on the Supreme Court premises. In this past week, law minister Anisul Haq advised the chief justice that he ought not to air his grievances in public. Meanwhile, the Hifazat-e-Islam outfit has been demanding not only the removal of the statue but also of the chief justice.
For his part, justice Sinha has been stressing, in the last few weeks, the paramount need for the judiciary to exercise its role as an independent structure of the state. In his newest comments on his role, obviously in response to the law minister’s advice to him, he has made it known that as chief justice he feels it is his moral responsibility to speak out on the issues that matter, especially when the need is for the lower courts to heed the instructions of the higher judiciary. Justice Sinha knows, more than anyone else --- even though there are all those people ready to disagree with him --- of the conflict that has pitted the judiciary against the executive, indeed of the subtle and not-so-subtle ways in which the executive has tried or may have tried to interfere with the workings of the judiciary.
The point of all these reflections is simple. It is that the chief justice of the Supreme Court must be heard, must be listened to with respect. When the prime minister asks him if he consulted anyone, meaning anyone in the executive, before having the statue symbolizing justice put up before the Supreme Court, the uncomfortable question of whether the executive is attempting to browbeat the judiciary into a subservient position arises. As the head of the judicial pillar of the State, the chief justice has the sole authority over any and every issue which involves the courts. That statue was put up on his authority and no one in the executive branch and no political party or religious outfit should be asking him to explain his actions. Any deviation from this principle clearly undermines the idea of judicial independence.
In a similar manner, one cannot but make it clear that the law minister’s advice to the chief justice not to speak out in public over issues relating to the executive branch vis-àvis judicial branch was unsolicited and uncalled for. Rarely has there been an instance in a democracy, or fledgling democracy, for ministers to question or advice the higher judiciary. In the present instance, therefore, the law minister’s advice to justice Sinha has left us disappointed. In truth, it is not advisable for anyone, all the way from the president of the Republic to the prime minister to ministers to lawmakers, to react or respond to the statements and remarks made by any member of the judiciary. Besides, when men like justice Sinha speak, it becomes quite clear that there are grave issues that need deft handling. It ought not to be for the executive branch to refute or deny what the chief justice says or has been saying.
The history of the judiciary in our part of the world, especially in Pakistan and Bangladesh, has been a fraught one. Pakistan’s justice Iftekhar Ahmed Chaudhry, only a few years ago, waged a relentless battle against the Pervez Musharraf regime. Decades earlier, justice M.R. Kayani made no secret, through his lectures, of his disdain for the martial law regime of Ayub Khan. Justice S.M. Murshed of the East Pakistan High Court was in clear defiance of the Ayub junta when he presided over the Tagore centenary celebrations in 1961. In Bangladesh, part of the national tragedy is that a good number of judges, over a period of time, have underpinned military regimes in the country following the tragedy of August-November 1975. Include among them justices A.S.M. Sayem and Ahsanuddin Chowdhury.
But such judges have been aberrations. There have been the bold ones --- justice Muhammad Hossain, justice K.M. Sobhan, justice Abdur Rahman Chowdhury and justice Kemaluddin Hossain --- whose demonstration of courage in the face of an onslaught on the High Court by the Ershad regime is truly a bright chapter in national history. All four judges were removed from their positions by general Ershad, in line with the sordid tradition that military rulers often inject into a nation’s body politic. But that did not make these four brave men capitulate before the regime.
Justice Sinha has persuaded us into believing that under him the judiciary truly means to exercise its powers as laid down in the Constitution. His public statements, which have surely not made the ruling dispensation happy, are nevertheless a pointer to what needs to be done to ensure, as the chief justice has said, the rule of law. When the chief justice speaks of a need to establish and uphold the rule of law in the country, every citizen --- and that includes the prime minister and the law minister --- must sit up and listen and think.
Syed Badrul Ahsan is the Associate Editor of Asian Age