The ruling of the Supreme Court of Pakistan last week upholding a law diluting the master of the roster powers of the Chief Justice of Pakistan may be instructive for India, where such privileges have often created a controversy.
The master of the roster refers to the power to constitute benches and assign specific cases to them. Prior to this legislation in Pakistan, enacted in April, the “master of roster” power resided solely in the country’s Chief Justice.
A full constitution bench of the court, by a 10-5 majority, ratified the provision of the Supreme Court (Practice and Procedure) Act, 2023 that requires a panel, consisting of the Chief Justice of Pakistan and the next two senior-most judges of the court, to form benches as well as to decide which matters the court will take up suo motu – that is, of its own accord.
Need for the law in Pakistan
The functioning of the judiciary in Pakistan is similar in most regards to its Indian counterpart. This is hardly surprising: both countries trace their judicial systems to the one established in pre-Partition India by the British colonial government. The colonial-era laws that both nations chose to retain are the same.
As in India, the Supreme Court in Pakistan is often caught in the middle of political battles. This trend spiked during the term of the previous Chief Justice of Pakistan Umar Ata Bandial when the country was undergoing political turmoil after the ouster of Imran Khan as prime minister, allegedly with the help of the Pakistan Army.
Bandial’s 19-month tenure, which concluded in September, was marked by a series of controversies. These included visible divisions within judges, allegations that Bandial was partisan towards Imran Khan, politically sensitive cases being assigned to certain judges, the Pakistan National Assembly passing a resolution rejecting the judiciary’s interference in the legislative process and the Pakistan government demanding Bandial’s resignation.
The events even included the phone of Bandial’s mother-in-law being tapped and a call in which she expresses support for Khan being leaked to the press.
It was to check Bandial that the Pakistan Parliament had passed the Supreme Court (Practice and Procedure) Act in April. However, a Bandial-led bench of the Pakistan Supreme Court had stayed the act’s implementation even before it was formally notified, ruling that it was “beyond the legislative competence of the Parliament”.
India, Gogoi reference at Pakistan Supreme Court hearings
Bandial’s successor and the current Chief Justice of Pakistan, Qazi Faez Isa decided to constitute a 15-judge full court bench to review the impugned legislation.
During the course of the hearings, Pakistani advocate Salahudin Ahmed, while defending the act, referred to the unprecedented press conference in 2018 by four judges of the Supreme Court of India questioning the allocation of cases to certain benches of the court by the Chief Justice of India at that time, Dipak Misra.
Ahmed added that one of the judges involved in the press conference, Ranjan Gogoi, upon ascending to the helm of the Supreme Court, used his power as master of roster of the Supreme Court to hear a case of sexual harassment in which he was himself the accused. Ahmed alleged that Gogoi summarily dismissed the case. The implication was that Gogoi, after rallying against the misuse of the master of the roster powers by Misra, ended up misusing it himself.
While Gogoi had misused his master of roster powers to hear a case involving himself, he had not technically dismissed the case. A three-judge bench led by him had constituted an in-house committee of three other Supreme Court judges to examine the allegations of sexual harassment. The committee eventually dismissed the complaint, with allegations that it had functioned in an opaque manner not in consonance with the principles of rule of law or natural justice.
Further during the Pakistan hearings, Isa called out the “perpetual fascination” of lawyers in his country for referring to legal precedents from India. He asked whether Indian judgments quote decisions by Pakistani courts and why Pakistani lawyers are “beholden” to Indian case law. Instead, he advised them to rely on Islamic principles as authoritative legal sources.
Isa also made a passing reference to the independence of the judiciary in India and the recently-concluded hearings on the challenge to the abrogation of the special status of Jammu and Kashmir in the Supreme Court of India.
In fact, judgments by the Supreme Court and various High Courts have on a few occasions referred to Pakistan case law, although the number of Pakistani judgments relying on Indian case law is significantly larger.
Lesson for India?
Scroll has previously highlighted several instances of the master of roster powers being used by chief justices in India to reallocate cases from judges who pose difficult questions to the state or being critical of the government.
There are parallels to be drawn between the experience in India and Pakistan under Bandial. Just like how Gogoi had, while hearing the sexual harassment case against himself, decried the complaint as an attack on the independence of the judiciary in India, Bandial too had listed before himself petitions challenging the formation of a judicial commission by the Pakistan government to inquire into the leaked audio recordings of his mother-in-law.
When the government filed an objection against this and asked him to recuse himself for hearing the case, Bandial dismissed it, describing it in his judgment as an attack on the independence of the judiciary.
Considering how resistant the Supreme Court in India has been to reforms directed by the legislature (demonstrated most recently by it striking down as unconstitutional the National Judicial Appointments Commission mechanism in 2015 to appoint judges), it is hard to say whether a similar law would pass judicial muster in India.
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