Pak SC depend on Indian SC rulings in election cases

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NEW DELHI: Politically and historically Pakistan execrate anything that has to do with India, but when it comes to the legal field the Supreme Court of Pakistan (SCP) has no such shyness and often looks up to the Supreme Court of India (SCI) for guidance.

One such occasion was a fortnight ago on December 17, when the SCP decided the jurisdiction of the high courts to entertain appeals against temporary orders passed by Election Tribunal, where petitions had been filed challenging the elections of several candidates elected to Parliament in the 2013 general elections.

In the sphere of elections, the Supreme Court had made consistent efforts through its judgments to make the Election Commission a fair, transparent, autonomous and powerful body to ensure free and fair elections, which is vital to a vibrant democracy.

In a series of rulings starting from Mohinder Singh Gill case through the T N Seshan case, the court had expanded the meaning of Article 324 to make the EC the sole controller of elections. Once the election process has begun, no court would have jurisdiction to interfere in it – that is to stall an election process with a judicial order, it had said.

Consistently, the SCI had ruled that once the election process has been set in motion after announcement of election schedule till the declaration of results, the jurisdiction of the courts was prohibit. Anyone having any grievance over anything done by the EC or the elected candidate could only move a court with an election petition after the completion of the election process, it had ruled.

As many as four judgments of the SCI were depending upon by the advocates for the parties while disagree before the SCP. The four judgments cited by the advocates were – Hari Vishnu Kamath vs. Ahmad Ishaque (AIR 1955 SC 233), Mohinder Singh Gill vs. Chief Election Commissioner (AIR 1978 SC 851), Upadhaya Hargovind Devshker vs. Dhirendrasinh Virbhadrasinh Solanki (AIR 1988 SC 915) and K Venkarachalam vs. A Swamickan (AIR 1999 SC 17230).

All these four judgments ensured goodness of the election process and non-interference of judiciary mid-way through the process.

Writing the judgment for the 3-Judge bench, Chief Justice of Pakistan Nasir-ul-Mulk noted that the SCI ruling in EC vs. Shivaji (AIR 1988 SC 61) giving a free hand to the Election Commission was followed a year later by the Supreme Court of Pakistan in Javaid Hashmi’s case to lay down the extent of an election process.  In Javaid Hashmi’s case, SCP had excluded the jurisdiction of all courts in regard to election matters.

Dismissing all the appeals, the SCP on December 17 ruled: “The legal position that emerges from the combined reading of the case law is that an interlocutory order passed by the Tribunal cannot be questioned in constitutional jurisdiction until the same is clearly illegal and the same for reason cannot even be challenged in appeal.”

Though the Pakistan Supreme Court has often depended on judgments from Indian Supreme Court, the reverse trend had not been seen in the last two decades.