Thursday, February 11, 2016

Draft State Equality Bill

This blog has followed the issue of discrimination for a long time. So has my own research. I have been involved in drafting a comprehensive antidiscrimination bill for some time now. After a discussion at the CPR in Delhi last December, the Bill is now updated and available publicly at this link (along with some other related links). I will be grateful if you can send any comments etc to me, and also if you write about or use the Bill in any way, please let me know. A brief introduction follows:

India is amongst the few regimes with a constitutional commitment to a liberal democracy that nevertheless lack a comprehensive, multi-ground, antidiscrimination legislation. The Bhopal Declaration issued in 2002 seeking to chart a new course for Dalits welcomed ‘winds of change the world over’ towards inclusion and diversity and against discrimination. A conversation on the need and shape of an antidiscrimination law began after the Sachar Committee recommended it in 2006. While the UPA government did briefly consider setting up an Equal Opportunity Commission, the idea was quietly buried. Antidiscrimination law remains a key demand of groups representing women, gays, lesbians, transgendered persons, and persons living with disability. The policy debate on an antidiscrimination law has been going on for about a decade. It is hoped that the existence of a draft Bill will give concrete shape to this conversation and draw attention to details. This Bill is one such effort. It was originally designed with NCT-Delhi in mind, but has been adapted for any other state. It was discussed at a workshop organised by the Centre for Policy Research, Delhi, on the 18th of December 2015. This draft of the Bill has benefited significantly from helpful comments from the discussants at the workshop—Shyam Babu, Jayna Kothari, Saumya Uma, Vidhu Verma, Siddharth Narrain—and from many other lawyers and activists (especially Gautam Bhatia and Danish Sheikh). Further comments and criticism are welcome.

Highlights of this Bill include the following:
·       The Bill creates civil liability (ss 13, 15) for acts of discrimination.
·   Discrimination includes direct discrimination (s 5), indirect discrimination (s 6), harassment (s 7), victimisation (s 11) and aggravated discrimination.
·       Aggravated discrimination includes boycott (s 8), segregation (s 9) and discriminatory violence (s 10).
·    The duty to refrain from discrimination applies not only to public authorities and private persons performing a public function but also to public and private employers, landlords, traders and service providers (s 12(6)).
·       Everyone has a duty to refrain from aggravated discrimination (s 14).
·   The protection against discrimination is generally available symmetrically to dominant as well as disadvantaged groups and to majorities as well as minorities (ss 3, 4): to men as well as women, Hindus as well as Muslims, brahmins as well as dalits.
·       Public authorities and private persons performing public functions have a diversification duty (ss 16, 17) to progressively increase the participation of substantially excluded disadvantaged groups.
·       Public authorities have a duty to give due regard (s 21) to the need to eliminate discrimination.
·   Voluntary affirmative action (s 12(4), 19) in favour of disadvantaged groups (s 20) is permitted if proportionate.
·       District courts designated as Equality Courts (s 24) have the primary responsibility for civil enforcement.
·    A permanent and independent Equality Commission (ss 23, 24) has the responsibility to promote the objectives of the Bill and aid its implementation.

·     Protection orders (ss 30, 31) against aggravated discrimination may be obtained from the Magistrate’s court.

Vasujith Ram

Our newest contributor is Vasujith Ram.

Vasujith is a penultimate year student at the National University of Juridical Sciences (NUJS), Kolkata, pursuing the B.A.LLB. (Hons.) degree. He has previously worked with Justice Muralidhar, Senior Advocate P. P. Rao, and Marc Galanter, among others. He serves as the student Editor of the Journal of Indian Law and Society, a peer reviewed interdisciplinary journal based at NUJS. He researches on and is academically interested in constitutional law, election law as well as interdisciplinary subjects such as empirical legal analysis, behavioural economics and law & economics.

Vasujith has been a part of the NUJS team to review the Bengal Vagrancy Act and the Draft Labour Code on Industrial Relations.

Douglas McDonald

I am very pleased to introduce Douglas McDonald as a full-time contributor.

Douglas is a tipstaff (judicial clerk) at the Supreme Court of New South Wales. He previously worked as a solicitor and migration agent with Craddock Murray Neumann Lawyers, Sydney, where he predominantly practiced in refugee law. His research interests include comparative constitutional law; refugee status determination; judicial biography; socio-legal studies; and modern Indian history. His work has been published in the Indian Historical Review, the Alternative Law Journal, the National Law School of India Review and the Socio-Legal Review.

Douglas holds a Bachelor of Arts and Bachelor of Laws from the University of Technology, Sydney. 

Wednesday, February 10, 2016

The Supreme Court's Uncertain Jurisdiction in the s.377 Curative Petition: A Response to Rupali Samuel

(Guest post by Alok Prasanna)

Since there is no dispute on the correctness of the judgments, the wrongness of Koushal or the facts cited, where Rupali and I fundamentally disagree I guess is on the interpretation that can be placed on the effect of the judgments of the Supreme Court in Rupa Hurra, Navneet Kaur and National Commission for Women. I have taken a narrow view of the effect of these judgments and Rupali, a broader view, in the context of the scope of the curative jurisdiction of the Supreme Court of India. In this response, I will only try to justify why I took the narrow view of the above judgments.

In my view, paragraphs 49 and 51 of the Hurra case are not to be read as created two distinct sets of grounds for challenge in curative. This is clear from the connecting paragraph reproduced below:

“50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.

In my reading therefore, para 51 Hurra is an enumeration of the bases for which curative power is to be exercised. It is not exhaustive certainly but certainly not, in my view, two out of several possible grounds. Whatever other grounds exist, I would think they would have to be somewhat akin to the grounds mentioned in para 51. If not, it would mean that certainty and finality of Supreme Court judgments has been done away with as a concept. More so because if the curative jurisdiction is rendered broad, a curative petition becomes a tool for forum shopping within the Supreme Court which was definitely not the intent behind creating it.  
In my view, Navneet Kaur and National Commission for Women did not lay down any principles on the basis of which they may constitute binding precedent of any form for the Court to follow in Naz. They are very sketchy judgments that may, at best, be invocations of Article 142 of the Constitution in a given case. As is well established, judgments delivered in exercise of powers under Article 142 are not precedent and are generally not relied upon as having laid down principles as has been confirmed recently in State of Punjab v Rafiq Masih. If the Supreme Court does exercise its power under Article 142 in the Koushal case (I don’t dispute that it can), it will not be because of precedent established in Navneet Kaur and National Commission for Women, but on completely different grounds specific to the Koushal case. 

I maintain therefore that if the Court were to set aside the Koushal judgment in curative, it will not be based on any principle laid down in precedent.

(Alok Prasanna is a Senior Resident Fellow at the Vidhi Centre for Legal Policy)

Tuesday, February 09, 2016

The s.377 Curative Petition: In Favour of a Broader Jurisdiction for the Supreme Court

(Guest post by Rupali Samuel)

In light of the curative petitions in Suresh Kumar Koushal v. Naz Foundation, it has been argued by Shivendra Singh here and Alok Prasanna here that “one of the two narrow grounds” in Rupa Ashok Hurra v. Ashok Hurra are required for proving maintainability. I argue that the grounds of natural justice and apprehension of bias in paragraph 51 of Hurra are not exhaustive and that, in light of the subsequent applications of Hurra, there is considerable room for new grounds that further the principles laid down therein. 

Principles in Hurra

In Hurra, the question before the constitutional bench was twofold: whether writ jurisdiction could be invoked for relief against a final judgment of the Supreme Court, which was negatived, and, whether the plenary powers of the Court under Article 142 permitted it to craft a new remedy in certain cases.
In the ensuing discussion, the Court identifies a tussle between certainty (Rule of law) and the duty to do justice:
“42. We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty... After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

The Court does describe three circumstances where the interests of justice outweigh finality. However, the principle that it upholds is not couched in terms of those grounds alone:
“49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power.”

It goes to “specify the requirements to entertain” such petitions with the qualification that “[i]t is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained”:
“51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice (2).. an apprehension of bias”
The enumeration of grounds in paragraph 51 is to be read with the qualifying words ‘entitled’ and ‘ex debito justitiae’. Black’s Law Dictionary defines ‘ex debito justitiae’ as ‘from or as a debt of justice; as a matter of right’. Mwamisi, in this paper, describes this as the ‘non discretionary’ obligation on the Court. Thus, the enumerated grounds are those grounds that, as a matter of right, entitle a person to relief from the Court. However, this does not necessarily qualify the principle elucidated at paragraphs 42 and 49 that the Court may intervene to bypass the principle of certainty so as to cure a gross miscarriage of justice.

Development post Hurra
Post Hurra, as Raju Ramachandran argues succintly here, the para 51 grounds have not been stipulated as the sole grounds for a curative petition. The order dismissing the majority of curative petitions simply states that “no case is made out within the parameters” in Hurra. Moreover, only in one of the three cases allowing a curative petition, State of MP v. Sugar Singh, was natural justice, i.e., an enumerated ground in paragraph 51, relied on. 

The Court in this case recognised another ground that stems from the formulation in Hurra, namely, the deviation from an established principle of law as validated in a later decision of the Court. Such distortion of the law can cause not only gross miscarriage of justice in terms of the specific circumstances of the case, but also considerable confusion in law, thereby threatening the value of finality and certainty. 

The curative petition in Navneet Kaur was against the dismissal of a plea to quash the rejection of Bhullar’s mercy petition on the ground of delay. The Court allowed this for two reasons. First, a subsequent judgment had been rendered by a three judge bench in Shatrugan Chauhan v. UoI which had “a crucial bearing for deciding the petition at hand,” as it “validated an established principle of law” that was at stake in Navneet Kaur - that unexplained delay was a ground for commutation of a death sentence. Note that the Court does not expressly invoke the fact that Shatrugan Chauhan was delivered by a larger bench, but rather, that it validated an established principle of law. The Court also highlights that the stated reason for rejection of the plea for commutation despite the recognition of the rule that delay was a sufficient ground, namely, that the conviction was under TADA, was rejected in Shatrugan Chauhan as having no rational basis. Thus, the Court in Navneet Kaur could intervene as (1) the Supreme Court on appeal and review failed to apply an established principle of law that (2) was validated by a later decision where (3) the reason for deviation from that rule in the impugned judgement was considered and rejected as an inaccurate application of the law.  There is also, arguably the implied condition of a serious threat to a fundamental right. Together, these constitute a gross miscarriage of justice warranting relief by the Court. 

The second reason for the Court granting relief was that Shatrugan Chauhan laid down that a prisoner cannot be executed if mentally ill (para 259, guideline 9) and Bhullar’s mental health report indicated that he was suffering from acute mental illness. This was the positive application of a new rule from the later case. 

The decision of the Supreme Court in Nalsa v. Union of India both validated several principles that were considered in Koushal but rejected therein without adherence to established principles of law[1] and identified new principles. See Gautam Bhatia’s analysis on this point here

Therefore, it is ample basis for re-examination of Koushal per Navneet Kaur.

The question in this case was whether the Court had been right in upholding the order of a trial judge quashing summons on the ground that ‘cruelty’ under Section 498A of the IPC was not made out. The Court finds:
“12..[I]t was too early a stage, in our view, to take a stand as to whether any of the allegations had been established or not.”

The Court, therefore, had incorrectly applied the law on ‘cruelty’ which amounted to a serious distortion of the law.  This ground is supported by earlier decisions of the Court approvingly cited in Hurra including the seven judge bench decision in A.R. Antulay v. R.S. Nayak which held that “[b]ut the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.” I disagree with Singh’s distinguishing of Antulay, as first, the basis for relief was the error; secondly, the majority opinion expressly states that that was not a case of a collateral attack,[2] and, thirdly, Hurra only reflects the confusion from Venkatachaliah J.’s dissent which describes the curative petition, though not called by that name, as ‘collateral,’ in that the original bench that passed the impugned order was not judging its correctness.[3] The further reliance on Subrata Roy Sahara v. UoI is wholly misplaced as the Court refrained from granting relief solely per Antulay on the ground that the petitioner ought to have filed a curative petition which he had not. It further interpreted Hurra broadly, observing, “that a curative petition could be filed for corrections of such like [errors apparent] errors.”

Therefore, the decision in Koushal suffers from several errors in law that create serious distortions and on that basis must be re-examined. 

Power to do complete justice
Finally, the Court in Hurra approvingly cites a series of judgments on the powers of the Court under Article 142 including Antulay and Supreme Court Bar Assn. v. UoI [4] that plenary jurisdiction is wide and may be drawn upon “as necessary whenever it is just and equitable to do so... to do complete justice.”

It, therefore, remains open to the Court to rely on this plenary power to interpret the scope of the phrase ‘gross miscarriage of justice.’ Even so, as cases post Hurra have demonstrated, there is urgent need for more clarity on the scope of curative petitions and for judges to clearly state their basis for intervention when such petitions are allowed.
(Rupali Samuel is a researcher at the Delhi High Court)

[1] For example, in holding that Article 15 and 16 constitute a “fundamental right against sex... for the reason of not being in conformity with stereotypical generalizations of binary genders.” This was in consonance with the Supreme Court’s decision in Anuj Garg v. Union of India where the Court invalidated a restriction against employing women working in bars and found, on arguments on Article 15, that the “legislation suffers from incurable fixations of stereotype” and that “the end result is an invidious discrimination perpetrating sexual differences.” It also builds on earlier law to identify new propositions, such as, that “gender expression and presentation... is protected under Article 19(1)(a) of the Constitution.” 
[2] See A R Antulay v. R S Nayak (1988) 2 SCC 602, at  para 40, per Mukharji J.
[3] See Antulay (supra), at para 123, per Venkatachaliah J.
[4] Note: The Supreme Court in Hurra only distinguished the decision in Supreme Court Bar Assn. v. Union on India on the limited point that it could not be “as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court” since “no one joined issue with regard to the maintainability of the writ petition.”

Monday, February 08, 2016

The Koushal Curative and Death Penalty Review Petitions: Inherent Powers & Finality of Judgments

(Guest post by Shivendra Singh)
This note is a comment on the inherent powers of the Supreme Court of India to modify, recall and set aside its final judgments and orders. Part I of the note explains how the limited oral hearing in Review Petitions envisaged in Md. Arif @ Ashfaq v. Registrar, Supreme Court of India & Ors., (2014) 9 SCC 737 was converted into a full-fledged oral hearing in Yakub Abdul Razak Memon v. State of Maharashtra. Part II of the note explains that the curative petitions against Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 will require the Supreme Court to go beyond the three instances in the past wherein it has allowed curative petitions.

All Review Petitions in death penalty cases are now heard by the Supreme Court in open court after its judgment in Md. Arif. It is an accepted fact that trained legal minds can arrive at diametrically opposite conclusions in a criminal case even when someone’s life is at stake. There have been instances where people have been condemned to death by a narrow majority (3:2) in the Supreme Court.[1] The logic behind the majority judgment in Md. Arif is sound and cannot be faulted. However, the conversion of Review Petitions in Death Penalty cases into de novo hearings on both fact and law is not what Md. Arif ever intended, but unfortunately that is exactly what had happened in one of the most high-profile cases of 2015.[2] The reader must keep one thing in mind. A final judgment of the Supreme Court condemning an accused to death can be overturned only if it can be pointed out during the hearing of the Review Petition that there is an ‘error apparent on the face of the record’. Yakub Abdul Razak Memon’s Review Petition was extensively heard by the Supreme Court on 11.3.2015, 18.3.2015, 24.3.2015, and 25.3.2015 before it was dismissed on 9.4.2015.[3] The outer limit of 30 minutes of limited oral hearing prescribed in Md. Arif was dispensed with and the Review Petition was heard for more than 10 hours. Should it have been that difficult to spot an error apparent on the face of the record? I am conscious of the fact that a death sentence is irreversible, but does it really require conversion of Review Petitions into extensive hearings putting strain on an already over-burdened docket where millions are waiting for their turn? I think that the majority in Md. Arif should have made it clear that the arguments will only be addressed to show the ‘error apparent on the face of the record’, and not to agitate the matter all over again. This caveat in the judgment would have gone a long way in ensuring that Review Petitions in death penalty cases don’t lose their fundamental character. The power of the spoken word must show its effect within 30 minutes, for otherwise it has the potential of making a mockery of the process. Yakub Abdul Razak Memon’s lawyers were not able to show any error apparent on the face on the record in the judgment confirming his death sentence. But a curative petition was filed. The ritual had to be followed after all. It goes without saying that Yakub Abdul Razak Memon’s curative petition was an abuse of process.

It is an established position of law that there are no implied or express limitations on the inherent powers of the Supreme Court of India. The judgment of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 had specified requirements to entertain curative petitions under its inherent power so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power.[4] The first instance of the application of Rupa Ashok Hurra is to be found in State of Madhya Pradesh v. Sughar Singh & Ors., (2010) 3 SCC 719. This was a fairly straightforward application of the judgment in Rupa Ashok Hurra as the acquittal of four persons by the High Court of Madhya Pradesh was reversed by the Supreme Court without affording them an opportunity of being heard. Accordingly, the Supreme Court recalled its judgment in State of MP v. Sughar Singh, (2008) 15 SCC 242 and restored the Criminal Appeals to their original numbers for fresh hearing after issuing fresh notices to all the parties that were to be heard. The second instance of the application of Rupa Ashok Hurra principle is to be found in National Commission for Women v. Bhaskar Lal Sharma & Ors., (2014) 4 SCC 252 which is the most favourable precedent that could be cited in favour of the curative petitions against Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. The reason is very simple. In Bhaskar Lal Sharma, the Supreme Court did not recall its final judgment on a mere technicality like violation of natural justice or bias but on a fundamental error of law. The Curative Bench held that the special leave petition was filed against the initial order summoning the accused to trial, and it was wrong on part of the Court to express its opinion at an early stage on whether the allegations making a case under S. 498-A of IPC had been established or not. Accordingly, the earlier judgment in Bhaskar Lal Sharma v. Monica, (2009) 10 SCC 604 was recalled and the criminal appeals were restored for de novo hearing. The third instance of the application of Rupa Ashok Hurra is to be seen in Navneet Kaur v. State (NCT of Delhi) & Anr., (2014) 7 SCC 264. Navneet Kaur’s curative petition seeking the limited relief of setting aside the death sentence imposed upon her husband by commuting it to imprisonment for life on the ground of delay of 8 years in the disposal of mercy petition was allowed by the Supreme Court due to three basic reasons. First, the ratio laid down in Devender Pal Singh Bhullar v. State (NCT of Delhi), (2013) 6 SCC 195 was held to be per incuriam by the larger Bench in Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. Secondly, the then Attorney General had graciously admitted before the Court that in view of Shatrughan Chauhan, the death sentence awarded to Bhullar was liable to be commuted to life imprisonment. Thirdly, the report given by the Institute of Human Behaviour and Allied Sciences had established that Bhullar was suffering from acute mental illness which provided another reason for commuting the death sentence as per Shatrughan Chauhan

It remains to be seen how exactly the judgment in Suresh Kumar Koushal  can be recalled by the Supreme Court in view of the limited extent to which Rupa Ashok Hurra has been applied so far. The judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 (“A.R. Antulay (II)”) is often cited to argue that the Supreme Court can exercise its inherent powers to any extent in order to recall or modify or set aside an erroneous judgment while dealing with a curative petition. However, this is not entirely free from doubt. It is pertinent to point out that the Supreme Court has held in Rupa Ashok Hurra as under (para. 45):

“In Antulay case the majority in the seven-Judge Bench of this Court set aside an earlier judgment of the Constitution Bench in a collateral proceeding on the view that the order was contrary to the provisions of the Act of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae.” 

In my view, the reliance on A.R. Antulay (II) is misplaced while dealing with the scope of curative petitions after Rupa Ashok Hurra. Unlike the curative petitions in Suresh Kumar Koushal, the challenge to the correctness of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 (“A.R. Antulay (I)”) was made in collateral proceedings in A.R. Antulay (II). A.R. Antulay (II) does not deal with a situation where a final judgment was sought to be recalled or set aside after the dismissal of the review petition. Moreover, in the recent past, the Supreme Court has refused to rely on A.R. Antulay (II) thereby giving the impression that it is a precedent that turned on its peculiar facts and circumstances, and the principles laid down therein were stated at a level of generality which might not be strictly applicable in other cases.[5] There are several conclusions in Suresh Kumar Koushal (unlike Sughar Singh, Bhaskar Lal Sharma, and Navneet Kaur) that cannot be recalled or set aside without providing extensive reasons. Only time will tell if the Constitution Bench will do that.

(Shivendra Singh is a lawyer practicing in the Supreme Court of India.)

[1] See Tarachand Damu Sutar v. The State of Maharashtra, AIR 1962 SC 130.
[2] In fact, Yakub Abdul Razak Memon was one of the petitioners before the Supreme Court in a writ petition connected to the lead writ petition of Md. Arif @Ashfaq.
[3] No reason was given in the order as to why the outer limit of 30 minutes prescribed in Md. Arif was not followed.
[4] Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, para. 50.
[5] See Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, para. 176.

Thursday, February 04, 2016

After the Raj: British Judges in Pakistan

Guest post by Douglas McDonald

As I have previously written, not all British judges left India after Independence; a small number of these judges ‘stayed on’, even remaining in service into the 1970s. Several British judges also remained in service in Pakistan after 1947. This blog post looks at the careers of several of these judges, and remarks briefly upon what their lives demonstrate about state formation in Pakistan.

After 1947, George Constantine and Dennis O’Sullivan continued to serve on the Sindh Chief Court (later the Sindh High Court). While O’Sullivan retired relatively soon after Independence (around 1949), Constantine, a former ICS officer, eventually rose to the post of Chief Justice. As Chief Justice, Constantine served briefly as Acting Governor of Sindh Province (from May to August 1953). Another judge, John Ortcheson (who had previously served as Legal Remembrancer to the Government of Punjab Province), was appointed to the Lahore High Court after Pakistan achieved independence.

During his tenure as Chief Justice of the Sindh High Court, Constantine played a significant role in the seminal case of Tamizuddin Khan v Federation of Pakistan.[1] Constantine (at first instance) ruled against Governor-General Ghulam Muhammad’s unilateral dissolution of Pakistan’s Constituent Assembly, a decision later overturned by the Federal Court of Pakistan. The rejection of Constantine’s decision in Tamizuddin Khan by the Federal Court is now remembered as an early capitulation by the judiciary to unbridled executive power in Pakistan, with Constantine praised as a dissenting supporter of democracy (even given that the then-Constituent Assembly had been selected by provincial assemblies elected nearly a decade before).

Following the establishment of West Pakistan in 1955, Constantine continued to serve on that province’s High Court, as did Ortcheson. Constantine retired in 1962, while Ortcheson retired in 1965 (as Senior Judge of the West Pakistan High Court).

Thomas Hobart Ellis, a former ICS officer and British judge in ‘East Pakistan’ (now Bangladesh), similarly held prominent legal and executive responsibilities. Prior to 1947, Ellis had been an acting judge of the Calcutta High Court; after independence, he ‘opted for Pakistan’ and became a judge of the High Court of East Bengal (also then known as the Dacca High Court). Another British judge, Eric Charles Ormond, also served on that Court until at least 1950.

As Chief Justice of the East Bengal High Court, Ellis led a notorious inquiry into police violence against civilians protesting against non-recognition of the Bengali language in 1952 (as part of the “Language Movement”); Ellis’s inquiry exonerated the actions of the police. The following year, Ellis was appointed as Chief Justice of the East Bengal High Court and briefly served (from September to December 1954) as Acting Governor of that province. Ellis retired from the bench in 1954.

Constantine, Ellis and Ortcheson’s continued service was mirrored by the surprising longevity of several British officials (often members of the former ICS) in independent Pakistan – and, indeed, by the remarkable continuity before and after 1947 in several administrative respects.[2] As Ralph Braibanti has written, ‘[i]n the early years of Pakistan the government legal establishment was not unaccustomed to having non-Muslims in its highest ranks’, with British officers serving in the nation’s courts as judges, registrars and legal remembrancers.[3] Sir Edward Snelson, a former ICS officer and district and sessions judge under the Raj, served as Secretary of Pakistan’s Ministry of Law until 1961 (when he was tried and convicted for contempt of court for criticising serving judges).

Snelson’s prominence may have been exceptional amongst British lawyers in Pakistan, but reflected the range of prominent roles held by British officials in Pakistani bureaucracy until the 1960s. 36 British officers of the Indian Civil Service ‘opted for Pakistan’ after Independence,[4] with ‘[t]he whole civil service structure [in Pakistan]… controlled from 1947 to 1961 by non-Muslim establishment secretaries’ (including several British officers from the former ICS).[5] (British governors also served in Punjab, the North-West Frontier Province and Balochistan until 1949; this eventually prompted significant controversy in Punjab, leading to the forced resignation of Sir Francis Mudie.) The fact that both Constantine and Ellis, British officials of the former ICS, served (briefly) as provincial governors in Pakistan in the 1950s is hence remarkable only because it occurred at such a late date.

The continued pre-eminence of many British officers and judges during the 1950s coincided with a period in which Pakistan was ‘ruled by a cabal of senior civil servants’. Bureaucrats retained a substantial role in governance (as ‘the military’s willing junior partner’) into the 1960s, with the Civil Service of Pakistan (CSP) in particular retaining some of the elitism and exclusivity of the former Indian Civil Service during this period, having ‘fully imbibed the ICS ethos’. Indeed, in 1958 Khalid B. Sayeed observed that Pakistan’s civil servants ‘often play an even more powerful role than that of their imperial predecessors’. The extent of this institutional continuity, symbolised both by the continued presence of British officials (and judges) and by the high posts to which they rose, carried with it both considerable political power and contempt for others (including politicians) who would seek to challenge this bureaucratic dominance. Despite perceptions in the 1970s that the ‘enormous power and exceptional privilege’ of the civil service might be eroded through the reforms of Zulfikar Ali Bhutto (including the abolition of the CSP),[6] the authority of the civil service ‘[i]f anything… actually increased’ the authority of the bureaucracy (through the increase in state power brought about by nationalisation of industries). The power, professionalism and independence of the bureaucracy were, however, substantially diminished under the successive regimes of Zia, Bhutto, Sharif and Musharraf – even as traditions of unaccountability and the untrammeled exercise of power remained current in Pakistani governance.

This preservation of bureaucratic authority (and the traditions of imperial rule) in Pakistan (as compared to the greater subordination of civil servants to elected governments in India) has cast a long shadow. While the early preeminence of the Pakistani bureaucracy was in part the product of ineptitude and division among Pakistan’s politicians, this dominance ensured that the Pakistani state maintained in many respects a colonial relationship with its citizens (including the colonial state’s keenness to preserve and protect established interests within society, particularly those of landowners). Constantine, Ortcheson and Ellis (in their judicial and executive guises) ensured that not only were laws interpreted and enforced in much the same manner as they were under the British, but that many of the same officials (of the former colonial power) remained responsible for this. That is, the Pakistani state not only retained colonial practices and mindsets, but in many cases was administered and judged by nationals of the former colonial power.

As Constantine’s important example proves, the fact that these men came to Pakistan as imperial officials (and retained their British citizenship) does not mean that they were, in practice, blinkered opponents of democracy or supporters of the privileges of the state; they must not be, and are not, automatically condemned by virtue of their origins. However, the extent to which Pakistan inherited British officials from the former regime may have played an important role in ensuring that a colonial regime transitioned into a nominally-independent government that functioned, in many respects, like a colonial regime. The unbroken legacy of autocratic rule, detached from popular accountability or constraint and unduly driven by the protection of the state’s own power and privileges, has had a detrimental effect on citizen-state relations even in contemporary Pakistan – even during Pakistan’s periods of democratic rule.

(Douglas McDonald previously worked as a solicitor with Craddock Murray Neumann Lawyers, Sydney.)

[1] Maulvi Tamizuddin Khan v Federation of Pakistan and ors 1954 SHC 81.
[2] See e.g. Yaqoob Khan Bangash, ‘Constructing the state: Constitutional integration of the princely states of Pakistan’ in Long et al, State and Nation-Building in Pakistan (2015) 96-97; Akbar S. Ahmed, Journey into America (2010) 467-468.
[3] Ralph Braibanti, ‘Cornelius of Pakistan: Catholic Chief Justice of a Muslim state’ (1999) 10 Islam and Christian-Muslim Relations 117, 119.
[4] Ibid.
[5] Ibid.
[6] See e.g. Ziring and LaPorte, ‘The Pakistan Bureaucracy: Two Views’ (1974) 14(2) Asian Survey 1086.