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3.20.2011

The Indian Supreme Court and the Government of Pakistan

In a recent judgment issued just last week (Gopol Dass thr. Brother Anand Vir vs. Union of India & ANR, writ petition No. 16 of 2008), the Supreme Court of India addressed its decision directly to the Government of Pakistan. Speaking on behalf of an Indian citizen imprisoned in Pakistan since 1984, the Indian Supreme Court made an impassioned plea to Pakistani officials for his expeditious release.

The Court appealed to the conscience of the Government of Pakistan, and even began its decision with words of Faiz Ahmed Faiz, a celebrated Pakistani poet: "Qafas udaas hai yaaron sabaa se kuch to kaho; Kaheen to beher-e-khuda aaj zikr-e-yaar chale," which in rough translation from its original Urdu means "the cage is sad, friend, say something to the breeze, the ocean of god is everywhere; today let us hear about friends."

Recognizing that it could not compel Pakistani officials to do anything, the Court acknowledged that "we cannot give any directions to Pakistan authorities because we have no jurisdiction over them" (para. 8). The Court continued: "However, that does not prevent us from making a request to the Pakistani authorities to consider the appeal of the petitioner for releasing him on humanitarian grounds by remitting the remaining part of his sentence" (para. 9).

My first thought as I read the judgment was to wonder how the Court expected the Government of Pakistan to hear about the Court's request. After all, the Court cannot simply mail a copy of its judgment to the Pakistani Government. I found the answer to my question at the very end of the decision: "Learned Solicitor General of India shall communicate this order to the Pakistan High Commissioner in India who is requested to communicate it to the concerned Pakistan authorities" (para. 15).

Courts write for many audiences, both internal and external to the state. Courts generally intend their words to speak to the litigants, the legal community, state authorities, and citizens. Courts may also intend their judgments to echo beyond their national borders and into the larger international legal community.

But the thought of a national court speaking directly to a foreign national government strikes me as unconventional, though not necessarily as wrong. For it appears that the Indian Supreme Court had what it deemed to be good reason for departing from convention in this instance, both to defend the interests of an Indian citizen and to accelerate the process of reconciliation between India and Pakistan. Still, while these may be laudable objectives, one must nonetheless weigh whether this is an appropriate role for a court to undertake.

This is not the first time the Indian Supreme Court has taken steps many might see as extraordinary. Indeed, India is widely perceived as home to the world's most activist court; a Time Magazine column once famously suggested that the Indian Supreme Court "runs the country."

Against this backdrop of blurred boundary separating law from politics in India, perhaps it is not as odd as we might think to see the Indian Supreme Court speaking directly to the Government of Pakistan.

1 comment:

  1. This is very interesting indeed. There is new scholarly work on the problem of judicial audiences outside the traditional legal profession (see Jeffrey Staton's book on Mexico and Nuno Garoupa's articles on judicial audiences). Even if the petition fails, it signals to the Indian public that the court cares, and so may enhance legitimacy in a non-traditional way.

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