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  • Date: Tuesday, July 24, 2007 Time: 10:36 am Category: General Discussion: 4 Comments

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As students of constitutional law, we were told that if there was one thing that separated Indian democracy from the state of ‘democracy’ in Pakistan, it was the decision of our Supreme Court in the Keshavananda Bharti case.

The decision rendered by a bench of 13 (7:6) was a much needed saviour at a time when even sections of the judiciary were perceived as ‘committed’. By holding that the constitution could not be re-rewritten at the whims and fancies of netas at the helm, it ensured that we would not have a revolution every 5 years with a change in regime, nor would we have a democratically elected dictatorship as was emerging when this decision was rendered.

The people of Pakistan though were not as fortunate as us for they have seen many a ‘revolutions’ and their demise. But, the Supreme Court of Pakistan has not been a mere spectator, as Mr. Soli Sorabjee points out in the Indian Express. It has risen to the occassion at times but perhaps not enough to halt substantial damage to democracy.

Yesterday’s judgment though was a watershed in Pakistan’s constitutional history for the Court undid the tampering of the most delicate brick in the wall of the rule of law that fortunately still stands in Pakistan.

It is significant that this order was possible only because, in 2000 when the Supreme Court had the occasion of pronouncing on the legality of the General’s regime, it took a practical view and upheld the legality of the same while giving itself enough room to act when required. The Chaudhary episode was one such occasion, when it was highly necessary for the court to act and it did so.

The short order delivered yesterday does not throw much light on the basis of the judgment. When the detailed order follows, it will be interesting to see if the court was inspired by the umpteen judgments of our apex court especially in the last 3 years whereby almost every executive power that has traditionally been perceived as beyond judicial scrutiny has been made justiciable thus checking our democratically elected dictators.

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