INDIA: Katju's King has been killed
The concept of sovereign immunity is incompatible with the notion of democracy. It is an anachronistic relic drawn from the British Common Law principles at odds with the constitutional architecture of a state that claims to respects the supremacy of its people. Integral to democracy is the conviction that a government that draws its legitimacy and mandate from its people. Contrary to this elementary understanding about democracy are the opinions of some jurists like Justice Markandey Katju of India, which contradict the spirit and democratic foundation of the Indian Constitution.
Katju's opinion concerning the dismissal of Pakistan's Prime Minister by Pakistan's Supreme Court should and must remain his private opinion. That Katju is the Chairperson of the Press Council of India is, however, concerning, given the danger that his opinion could be mistakenly interpreted as that of the Press Council of India, an entity that must protect fiercely the rights of the free media and of the citizen questioning his government.
Katju represents an influential community of jurists and policymakers in the region who shower unwarranted accolades upon the British system of administration. The effective British administration that Katju claims is "based on long historical experience" speaks of exploitation, oppression, the arbitrary use of power and colonisation. The administrative setup that the British imported into and enforced in their colonies (India included) is the result of a calculated effort of a coloniser to effectively bleed the colonies of life and resources for the illegal and immoral benefit of a handful. The 1861 Criminal Procedure Code and the 1860 Indian Penal Code are two classic examples of how arbitrary authority could be conferred upon and used by the Empire's representatives to suffocate opposition and act with total impunity and disregard for the law. Sovereign immunity is invoked to protect perpetrators from prosecution. The same lightly amended legislations were subsequently adopted, plainly revealing legislative laziness, lack of political knowledge and will and a dismal absence of basic democratic ideals. This is the advent of neo-colonialism, all the more morally reprehensible for a regime's oppression and exploitation of its own people.
The lack of consultative processes in the drafting of primary criminal laws and the failure to make the public aware at least partially explain the lack of popular resistance when draconian legislations like the 1958 Armed Forces (Special Powers) Act, the 1990 Madhya Pradesh State Security Act and the 2005 Chhattisgarh Special Public Security Act were enacted. These oppressive laws contravene constitutional guarantees afforded individuals, relegating the duty of reconciling state security and fundamental freedoms and rights to local authorities and actors, who often act on whim. The Supreme Court of India that owes its origin to the Regulating Act of 1773 has thus far failed to effectively obviate in the passage of these legislations although these laws clearly negate the constitutional architecture of fundamental rights and freedoms.
"The King can do no wrong" is a principle rooted in British legal history is tested and proven wrong time and again, most importantly during the trial of Charles I led by Solicitor General John Cooke in 1649, some 342 years since Edward I parented a pro-monarchy proposition lacking legal basis. The excuse that the principle is required to administer a state, even in a democracy, is a ruse to asphyxiate calls for accountability and challenges to arbitrarily exercised authority. Sovereign immunity has been vicariously used in place of law by dictators and tyrants. It is today an indefensible doctrine offering carte blanche and an easy way to cover up crime. Many states that did not initially have sovereign immunity and other executive privileges written into their constitutions have since amended basic laws to claim immunity for the political elite from prosecution for misdemeanours and crimes committed against the people. This pathetic attempt to render valid or reasonable sovereign impunity has met with resistance from international criminal law, the large body of jurisprudence since evolved and universal norms underlying dramatic paradigm shifts in communities all over the world. The trial of Charles Taylor is but one of an expanding number of instances of this change.
The Constitution of India recognises that the government can do wrong and must be held accountable. The concept of sovereign immunity is incongruous with ideals of democracy and rule of law because it permits and shields sovereign impunity, a 'privilege' no individual or regime should possess. To undermine democracy and rule of law, norms Indian is founded upon, is to threaten the very identity and integrity of the Indian state. Constitutional provisions are absolute laws, the letter and spirit of which all other laws should be constructed upon and in harmony with. It describes and prescribes the character of a state as desired by its people. Entertaining and enforcing sovereign immunity renders the judiciary's role of defending the constitution a mockery and all safeguards illusory – this is a fact a jurist like Katju should be keenly aware of and should struggle against becoming reality.