By Yasser Latif Hamdani
The Cabinet Mission Plan, which was accepted by both Congress and Muslim League in May of 1946, was a rare glimmer of hope for the resolution of all outstanding disputes between the two major parties of the subcontinent and for a while, it seemed that India was headed towards a federal future, which was to the liking of all stakeholders. Unfortunately, what followed was a disastrous miscalculation on the part of the Congress Party, ironically against better counsel from its own president, Maulana Azad. It centered on the interpretation of the grouping clause of the formula. The formula provided group federations A, B and C, which each consisted of certain provinces, with freedom of opting out from a federation. The position of the Cabinet Mission was that this opting out could happen only after the first elections. That was the interpretation the Muslim League also accepted. Congress however insisted that opting out actually meant that provinces could choose not to be part of a group federation ab initio, a position which was counter-productive to the whole exercise. In a bid to resolve the crisis, Viceroy Lord Wavell held a separate meeting with Congress stalwarts, Gandhi and Nehru. Gandhi and Nehru argued, without realising the irony of their position, that it was not what the Cabinet Mission thought the plan meant but what they interpreted the plan to mean that counted. Flabbergasted, Wavell is reported to have said, “Gentlemen don’t talk to me as lawyers but as reasonable men,” to which Gandhi and Nehru, who other than their training in law had very little to do with the practice of law, responded with one voice: “But we are lawyers!” The rest, as they say, is history.
Tragically, the events of recent months in our country owed their traumatic birth to the aforementioned misplaced legal sophistry in a political realm. That has once again shown what happens when lawyers — in this case lawyers elevated to the benches of the highest court in the land — choose to interpret documents in a way that suits them instead of taking a document in the spirit in which it was drafted. Of course, this is part of what being a lawyer is about and this is what lawyers are paid for while representing their clients. These are tactics to be employed strategically to the best advantage of one’s client. Statesmen have no such luxury because the greater interests of a whole people depend on the steps they take. Similarly, judges, once elevated from their status as lawyers, are duty bound to proceed according to the spirit of the constitution and to attach the most direct and logical meaning to constitutional provisions. In the view of this writer, the Supreme Court has resorted to blatant legal sophistry in both the way it has dealt with the contempt case and now the disqualification of Pakistan’s unanimously elected, longest serving Prime Minister, Mr. Yousaf Raza Gilani. As Justice Katju, formerly of the Indian Supreme Court, wrote in his precise opinion that the Supreme Court should not have overruled 248(2) and asked the prime minister to write a letter to a foreign authority to initiate proceedings against the President of the republic, which is absolutely barred by the constitution of this republic in clearest terms.
