Resumed hearing before Pakistan Supreme Court

Amalendu Upadhyaya
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By Justice Markandey Katju

Justice Ijaz ul Ahsan
Justice Ijaz ul Ahsan

The hearing before the 15-member full bench of the Pakistan Supreme Court resumed today in the petitions challenging the validity of the Supreme Court ( Practice and Procedure ) Act, 2023 which gives the power to allot benches in the Court to a committee of 3 seniormost judges, instead of to the Chief Justice alone.

The central point in the case was rightly raised by Justice Ijaz ul Ahsan, namely, whether the Pakistan Parliament had legislative competence to enact such a law.

There is a long-standing, well-established, convention in England, India, Pakistan and many other countries that the power to constitute benches and allot cases to any bench of the Court is solely the prerogative of the Chief Justice, as he is Master of the Roster.

No doubt the expression ‘Master of the Roster’ has not been used in the Pakistan Constitution, just as it has not been used in the Indian Construction nor in any law made in England. But it is well settled that conventions are as much part of the Constitution as express provisions.

To change this long standing, well established convention by parliamentary legislation is interfering with the internal functioning of the Court, which subverts the independence of the judiciary, which has been held in several decisions to be part of the Constitution. If at all this can be done, it can only be done by a Constitutional amendment, not a mere parliamentary enactment, or by the Judges themselves.

No doubt Article 191 of the Constitution states “ Subject to the Constitution and the law, the Supreme Court may make rules regulating the practice and procedure of the Court “.

If this provision is considered in isolation it gives the impression that the impugned enactment is well within the power of parliament. However, it is well settled that a provision in the Constitution or a law cannot be read in isolation. If it is so read it will mean that parliament can even enact a law giving power to constitute benches in the Supreme Court to the Speaker of Parliament, or a Committee of members of Parliament, or that Parliament can allot a particular case or type of cases to a bench nominated by it. What then will remain of independence of the judiciary, which has been held to be part of the Constitution ?

Article 191 can therefore not be read literally nor in isolation, but it must be interpreted to mean that Parliament can only make laws which do not infringe on the internal functioning of the judiciary. For instance, Parliament can make a law increasing the number of judges in the Court if the case load has gone up. 

To give power of constituting benches to a committee of judges instead of the Chief Justice alone can only be done by the Judges themselves who may amend the 1980 Rules of the Supreme Court, or by a Constitutional amendment, but it cannot be validly done by a simple enactment by Parliament. Once this power to interfere with the internal functioning of the Court is given to Parliament it will open the floodgates which will end the independence of the judiciary.

I think Justice Ijaz ul Ahsan’s point is well taken, and should be accepted by the Court.

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

Photo: Supreme Court of Pakistan, Islamabad by Usman Ghani. CC BY-SA 3.0

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