Jinnah’s Supreme Court – A. G. Noorani
Jinnah’s Supreme Court - A. G. Noorani
“The Privy Council have on several occasions absolutely murdered Hindu law, and slaughtered Mohammedan law; with regard to common law, the English law, of which they are the masters, undoubtedly they command the greatest respect of every practitioner and of every judge in this country.” Mohammad Ali Jinnah had good reason for making these remarks in the Central Legislative Assembly on Feb 17, 1925.
He had begun his career as a legislator with a success few have achieved. He got overturned a ruling of the Privy Council in 1894 by successfully piloting in the Imperial Legislative Council the Mussalman Wakf Validating Act, 1913 to validate the family trusts known as the wakf-alal-aulad which the Privy Council had held to be void.
Moving the bill on March 17, 1911 he noted that “It has long been felt by the Mohammadan community that the result of certain decisions of the judicial commit tee of the Privy Council in cases of Mohammadan family settlements which have gone up before them on appeal from Indian courts has been the breaking up of an institution which rests upon the highest religious and social sanctions and which in the past has saved a large number of Mohammadan families from destitution while it has at the same time enabled pious Mohammadans to practise what they look upon as an act of great religious merit.” In a rare success for a private member’s bill, it was inscribed on the statute book in 1913. Twelve years later Jinnah renewed his censures. Dr Hari Singh Gour had moved in the assembly on March 26, 1921 a resolution calling for the establishment of a supreme court of appeal in India leaving the Privy Council with a vastly reduced workload. The resolution was circulated among the high courts and the provincial governments. Opinion was divided. Among those who supported the proposal were Sir Abdur Rahim, Sir Shah Muhammad Sulaiman and Sir C.P. Ramaswami Aiyar. When the matter returned to the assembly in 1925, the resolution was defeated; but not before Jinnah had delivered his censures of the Privy Council.
A fine opportunity was missed. The Privy Council went on to commit worse wrongs, especially on vital issues of civil liberty. If a supreme court had been established in India, two decades before independence, the study of constitutional law would have received a boost as also a sound interpretation of the Sharia. The Privy Council ruled in 1903 that it would follow the dicta of “the ancient doctors of the law” rather than construe the Sharia itself.
English judges knew little of Islam or the Sharia or Hinduism or Hindu law. Hence the “butchery”. The Supreme Court of Pakistan broke the shackles and interpreted the Sharia for itself, enriching jurisprudence.
The missed opportunity is a subject of lament. Jinnah’s exposition in the subcommittee on the federal structure at the Round Table Conference in London on Oct 27, 1931 is of current relevance. The supreme courts of India and Pakistan are groaning under the weight of arrears thanks to the vast jurisdiction conferred on them by the framers of the constitutions of both countries. The basic law of Germany (1949) establishes the Federal Constitutional Court as well as the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal Social Court. They do not impair the dignity of the Constitutional Court one bit.
At the subcommittee, Jinnah received little support but what he said then makes great sense today. He said that “any question that relates to the federal constitution or arises out of the federal constitution should vest in the Federal Court”. But he baulked at giving it a wide jurisdiction over “federal laws”. After all the Penal Code, the Civil and Criminal Procedure Codes and the Transfer of Property Act were also central laws.
He added: “I maintain that it should be open to any subject, if his right is invaded or attacked — relating to the constitution, of course, or arising out of the constitution — to go to the Federal Court direct”. With such a limitation, the Federal Court “will not be so overworked and, therefore, the cases can be expeditiously disposed of”.
There would be another advantage “if you separate your Federal Court, and if you will, in making the appointments, select the personnel of that court which will be specially qualified in matters arising out of the constitution, you will then, I think, set up a court which will be the most desirable court. We know, sir, that this is an age of specialists. In India, we have not yet risen to that height. You will be surprised to hear — and I think my friends here will bear me out — that in India, in the morning, you are arguing a complicated question of Hindu law, and in the afternoon, you are dealing with a case of light and air and easements, and perhaps the next day you are dealing with case of a commercial kind, and a third day, perhaps, you are dealing with a divorce action, and a fourth day you are dealing with an admiralty action.” He repeated his plea for a separate supreme court to “take the place of the Privy Council” and “a regular criminal court of appeal just as you have in England”. In short, three apex courts — the Federal Court for constitutional matters and enforcement of the citizen’s fundamental rights; the Supreme Court with appellate jurisdiction over the high courts and a Criminal Court of Appeal. Each would be manned by judges who had acquired high reputation for specialisation. The spectacle of judges, skilled in civil or criminal law but innocent of constitutional law, trying complex issues of constitutional law is not an edifying one. ¦ The writer is an author and a lawyer.
