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Tuesday, July 17, 2018

Learning from a neighbour

Indian judiciary could look at how Pak courts dealt with lynching of Mashal Khan.

Written by Faizan Mustafa | Updated: February 12, 2018 11:46:01 pm
Learning from a neighbour On April 13, 2017, an angry mob lynched Mashal Khan, a mass communication student of a university in Pakistan’s Khyber Pakhtunkhwa province, for allegedly publishing blasphemous content online.

Pakistan was created on the basis of the flawed “two nation theory” propounded by M A Jinnah and V D Savarkar. Blaming Jawaharlal Nehru for the Partition is not really correct as Mahatma Gandhi and Sardar Patel agreed to it as well. Maulana Azad did not vote for the Partition but no one mentions this vital fact. Pakistan is a failed state and let India not follow it by giving primacy to religion in its body polity.

Nehru stabilised democracy in India and the country was also able to preserve the independence of the judiciary. With a few exceptions, the country as a whole has always stood up to authoritarianism. So, it seems that there is little that we can learn from Pakistan. But Lord Rama had asked Laxman to learn from even Ravana. Pakistan’s judiciary has not been as independent or as efficient as the Indian judiciary and it did uphold military coups. Yet, some of its decisions were also remarkable and have been relied upon by India’s Supreme Court. The way the Pakistani Supreme Court saved democracy in 2007 and fought against Pervez Musharraf was indeed remarkable. Chief Justice Iftikar Chaudhry led the country in toppling the military dictator.

Justice J. R. Mudholkar of the Indian Supreme Court in the Sajjan Singh case (1965) quoted the Fazlul Quader Chowdhury v. Mohd Abdul Haque judgment (1963) of the Pakistan Supreme Court. In this verdict the then Chief Justice of the Pakistan Supreme Court, A R Cornelius, spoke about the basic structure theory and held that franchise and form of government are fundamental features of the constitution. Justice Mudholkar’s citation of this verdict is considered to be the first reference to the “basic structure” in Indian judicial history. Eight years later, in 1973, India got its first basic structure verdict.

In the S R Bommai judgment (1994), India’s apex court followed the Nawaz Sharif judgment (1993) in which the Pakistan Supreme Court not only struck down the dismissal of a democratically-elected prime minister, but also restored the dissolved House.

In 2012, a seven-judge bench punished the then Prime Minister Yusuf Raza Gilani for contempt of court with detention in the court till the rising of the court. Gilani had refused to reopen the corruption charges against the then President Asif Ali Zardari. On July 28, 2017, a five-judge bench of the Pakistan Supreme Court, on the basis of the Panama papers, decided a case against Nawaz Sharif. Article 62 of Pakistan’s constitution requires politicians to be “honest” and “righteous”. We do not have such a law in India. The charge against Sharif was that since he was entitled to a salary of $3000 in an off-shore company in Dubai he was disqualified to be a member of parliament — even though he did not actually receive any money. The court said that an “un-withdrawn salary” was “receivable” and was an asset which should have been disclosed at the time of election. Since Sharif did not make such a disclosure it, he is not “honest” and “righteous”. The court also appointed a judge-monitored SIT to probe the Panama leaks. Surprisingly, our apex court lately has not shown much enthusiasm in ordering probes into alleged cases of political corruption.

Now a Pakistan trial court has, within nine months, punished one accused (Imran Ali) with the death penalty, five others with the life-imprisonment and 25 others with four years’ imprisonment in a mob-lynching murder case. The case pertains to a sensitive matter, blasphemy. An anti-terrorism court has convicted 31 people for lynching Mashal Khan, a journalism student who had described himself on his Facebook profile as “humanist”. The provincial government has also announced that it will appeal against the acquittals in this case. The tragic killing took place in April 2017 when Mashal was dragged out of his hostel room, brutally beaten up and then shot dead. He was alleged to have committed blasphemy. Investigations proved that the allegations were incorrect.

But what is the response to lynching-killings in India? Mohammad Akhlaq was lynched to death in September 2015 and the accused involved in his brutal killing are now out on bail. Criminal cases have been filed against Akhlaq’s family members. Those involved in the inhuman act of lynching Dalits in Una too have not been punished. The state machinery charged Pehlu Khan’s companions and had said there is no evidence against those who killed Pehlu Khan though the deceased mentioned their names in his dying declaration — which under Indian law, has a high value as evidence.

Mob lynching is a huge challenge to the rule of law and authority of the state. Mobs indulge in violence with the tacit support of state. Has the so-called “fringe” now become the “mainstream”?

The writer is vice-chancellor, NALSAR University of Law, Hyderabad. Views expressed are personal.

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