There is a Latin maxim ‘ Dura lex, sed lex ‘, which means ‘ The law is hard, but it is the law ‘.
This maxim can be illustrated by a historical example.
In the South Indian sultanate of Bijapur, there was a Sultan whose son, the Crown Prince ( wali ahad ) had committed the crime of raping a poor girl. When the Sultan heard of this he made inquiries and found the allegation to be true. He then ordered his son to be given 100 lashes as punishment. When the 90th lash was given the son died. Then the Sultan picked up the whip and gave 10 lashes himself to the dead body of his son, so as to complete the sentence.
When that was done, the Sultan broke down in tears, became a father again, and himself buried his son, weeping inconsolably. This is what true justice should be like.
But what is the condition of the judiciaries in India and Pakistan today? As regards the Indian Supreme Court I have co-authored an article ‘ All the times the Supreme Court turned Nelson’s eye to injustice ‘ published in thewire.in, where I have mentioned in great detail how the Indian Supreme Court has shamelessly surrendered before the present Indian Govt and is doing its bidding, and is no longer functioning as a guardian of the rights of the people.
As regards the Pakistan judiciary, the less said the better. In Federation of Pakistan vs Maulvi Tamizuddin Khan ( 1955 ) the Pakistan Supreme Court propounded the novel ‘doctrine of necessity’ for validating the illegal dismissal of the Constituent Assembly by the Governor General of Pakistan, a verdict which gave a legal foundation to all subsequent military coups. And the Court loyally obeyed the order of Gen Zia in committing the judicial murder of ZA Bhutto.
I have already mentioned about my ideal judge in my article ‘ The ideal judge : Qazi Sirajuddin ‘.
Now I would like to mention about 4 judges who bravely refused to succumb to pressure of the executive authority or public opinion.
(1) Lord Coke
Lord Coke was the Chief Justice of England at a time when judges in England had no job security, and could be dismissed by the King at any time, and without giving any reasons or opportunity of hearing ( judges in England got job security only in 1701 by the Act of Settlement).
In 1610 he was told by King James 1 to send the record of a case he was hearing to the King, as the King wanted to decide the case himself.
The judicial function is a sovereign function, and at one time the king used to decide cases himself. However, later, since the king had several other functions to perform ( military, administrative, etc ) he delegated this function to his delegates, who became known as the king’s judges.
King James was of the view that since judges were only his delegates, and the judicial power was really the king’s powers, he had the right to decide cases himself. When Lord Coke disagreed, the King summoned him and asked him whether Coke thought the king did not possess reason. Coke has penned down what happened then :
“ then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege I.e. the King ought not to be under any man but under God and the law “
In other words, Lord Coke said that cases in court cannot be decided by someone who had intelligence alone, but in addition he must have knowledge of the law, which takes years of study to acquire, and which the King did not have.
Later, in 1616 in the Commendams case the judges had declared some act of the king illegal , for which they were summoned by King James who was furious, and demanded they reverse their verdict. Except for Coke all other judges fell on their knees before the king and accepted his demand, but Lord Coke refused, and said he would decide according to his conscience.
Lord Coke was sacked for this
(2) In Plessy vs Ferguson (1896 ) 8 of the 9 US Supreme Court judges proclaimed the deceitful,and devious doctrine of ‘ separate but equal ‘ which legalised racial segregation and discrimination against blacks in USA. The sole brave dissent was of Justice John Harlan, who said :
“ But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. … In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case “.
Harlan’s prediction that the decision would eventually become as infamous as the Court’s decision in the 1857 case Dred Scott v. Sandford—in which the Court infamously ruled that black Americans could not be citizens under the U.S. Constitution, and that its legal protections and privileges could never apply to them—proved to be correct. Both Dred Scott and Plessy usually sit at the top of lists of the Supreme Court’s worst decisions.
(3) In Dennis vs US ( 1950 ) the majority in the US Supreme Court succumbed to the hysteria against communists whipped up by Senator Mccarthy, and upheld the convictions of 11 members of the American Communist Party though they had done no overt act seeking to overthrow the government.
In his dissenting judgment Justice Hugo Black said :
“These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied.I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection “Then Justice Black used words which transcended law, and entered in the realm of literature “There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society”
(4) In ADM Jabalpur vs Shivakant Shukla ( 1976 ) Justice HR Khanna gave a dissenting judgment, which cost him the post of Chief Justice of India ( which a vindictive Prime Minister Indira Gandhi deprived him of although he was in line of succession ) but which immortalised him. Before Justice Khanna gave his dissenting judgment, he told his sister: “I have prepared my judgment, which is going to cost me the Chief Justiceship of India.” Khanna held that even if a person’s fundamental rights were taken away, he/she could move the court for the right to know why they are being detained. This was because Article 21 was not the only place for life and liberty, and even if suspended, they were the basic hallmarks of a society.
He wrote: “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive… What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute… Detention without trial is an anathema to all those who love personal liberty.”
His prediction came true when, despite being the senior-most Supreme Court judge, he was superseded by Justice Beg as CJI in January 1977. Khanna resigned the same day.