A question from a Pakistani judge to which I could give no answer

Justice Markandey Katju-

Justice Markandey Katju

Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own.

When I was a Judge of Allahabad High Court I had come to Delhi for an International Conference of Judges in or about the year 2000. In that conference, there were Judges from England, Australia, Pakistan, and many other countries.

This was shortly after Gen Parvez Musharraf had staged a military coup in Pakistan in 1999, and the promulgation of the Provisional Constitution Order in January 2000 under which judges of the Pakistan Supreme Court and High Courts had to take an oath of allegiance to the military, and those who refused to take it were promptly sacked ( the coup was later validated by the Pakistan Supreme Court under the devious ‘doctrine of necessity ).

When my turn came to speak, in my usual outspoken and forthright manner I said ” What kind of judiciary do you people have in Pakistan? Parvez Musharraf stages a coup de’tat, and asks the Pakistan Supreme Court and High Court Judges to take the oath of allegiance to the army and state that they will give no verdicts against the Pakistan military, and sacks Judges who do not? This is inconceivable in India ”

When I finished speaking, one of the Pakistan judges who were attending the conference stood up and said ” My name is Nasir Aslam Zahid and I was a Judge of the Pakistan Supreme Court when Gen Parvez Musharraf staged his coup d’etat. I would like to reply to Justice Katju ”

Justice Nasir Aslam Zahid

He then said, ” I was a Judge of the Pakistan Supreme Court, and I was one of the judges who were sacked because I refused to take the oath demanded by Gen Musharraf.”

The evening before we had to take the oath, the Supreme Court Judges assembled together to discuss the issue. Since I was financially well off I could afford to lose my job, and I said that I would not take such an improper oath. But a colleague of mine said ‘ I have a wife and 5 dependent children to support, one of whom is physically handicapped. I have been honest all my life, and have only 50,000 rupees in my bank account. If I lose my job, my family will starve. So I have to take the oath, however unpleasant it may be “.

Having related this, Justice Zahid asked me ” Now Justice Katju, please tell me what you would have done had you been in my colleague’s place? ”

I confessed I could give no reply.

Many years later, when I was a Judge in the Indian Supreme Court, Justice Zahid, along with a delegation from Pakistan consisting of late Senator Iqbal Haider ( who had been Pakistan’s Law Minister in Benazir Bhutto’s cabinet ), Mr. Karamat Ali, etc came to Delhi ( in the year 2009 or 2010 ) to appeal to the Indian Government to release Pakistani fishermen who had been detained in India. They met me at my residence at 4 Akbar Road, and I invited them to the Supreme Court the next day during the lunch interval, where I introduced them to many of my colleagues.

Justice Zahid, who is a brave and upright man, reminds me of Lord Coke, the former Chief Justice of England, who refused to give verdicts as directed by King James I but only in accordance with law and was promptly sacked in 1616.