WHEN Nawaz Sharif and Benazir Bhutto signed the Charter of Democracy, they could not have imagined that a crucial provision had been proposed by the Quaid 70 years earlier.

The charter says: “A federal constitutional court will be set up to resolve constitutional issues, giving equal representation to each of the federating units, whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The supreme and high courts will hear regular civil and criminal cases.”

Precisely such a suggestion was made by the Quaid at the 41st meeting of the federal structure committee of the Round Table Conference in London on Oct 27, 1931. Some of the leading figures and lawyers of eminence were its members including M.K. Gandhi, B.R. Ambedkar, M.M. Malaviya, Sapru, Jayakar and Zafrullah Khan. The lord chancellor, Lord Sankey, presided. No other assembly or meeting ever since attained its high level of debate. I make no apology for quoting from the proceedings in extenso for they are hard to come by.

Jinnah said: “The federal court must be vested first with the jurisdiction to deal with matters relating to the constitution and matters arising out of the constitution; the federal court should have exclusive appellate jurisdiction with regard to all federal laws.”

He recalled: “Personally, I have no hesitation in saying that I have always been a supporter of the Supreme Court, and I have always maintained that it is high time that we had a Supreme Court in British India. The question has been debated more than once since 1921.”

Jinnah’s view on the constitutional court remains relevant.

Further, he spelt out the basics. “The personnel of the court will be qualified in those constitutional matters as constitutional lawyers, because the questions dealt with will arise, as we have contemplated, between the federation and the units and between the units inter se. Further, I maintain, sir, that it should be open to any subject, if his right is invaded or attacked — relating to the constitution, of course, or arising out of the constitution — to go to the federal court direct.”

The bench and the bar were both to be specialists in constitution. “This is an age of specialists. In India, we have not yet risen to that height. You will be surprised to hear — and I think my friends here will bear me out — that in India, in the morning, you are arguing a complicated question of Hindu law, and, in the afternoon, you are dealing with a case of light and air and easements, and perhaps the next day you are dealing with a case of a commercial kind, and a third day, perhaps, you are dealing with a divorce action, and a fourth day you are dealing with an admiralty action.”

“I firmly believe that in India we must have a regular criminal court of appeal, just as you have in England. … Generally, in criminal cases it is a question of fact and of appreciating evidence. … A criminal court of appeal which is not confined merely to questions of law or of errors or of grave irregularities. I feel that India must have a criminal court of appeal. … I think there ought to be a criminal court of appeal which will give more confidence to the people than does our present position. Let me tell you, sir, that if there is anything in India which is the greatest bulwark of the government, it is the criminal and civil administration of justice.”

He explained: “The federal court should have only original jurisdiction in matters relating to and arising out of the constitution, and a separate court should be constituted, by the name of the Supreme Court, having app­ellate jurisdiction with regard to federal laws and appellate jurisdiction over the high courts of the provinces, … the federal court should be vested with jurisdiction relating to constitutional matters — matters arising out of the Constitution.”

Jinnah’s reference to the debate had a purpose. On March 26, 1921, the jurist Hari Singh Gour moved a resolution in the Central Legislative Assembly urging the appointment of a ‘court of appeal’ in India for civil appeals and as the court of final appeal “against convictions for serious offences occasioning the failure of justice” to replace the Privy Council in London. The law minister, Tej Bahadur Sapru, got it killed. It was supported by a famous English barrister, Eardley Norton.

Sapru had it circulated to elicit public opinion. When the resolution came up for debate on Feb 17, 1925 Motilal Nehru opposed it, so did the government. Jinnah strongly supported it saying: “The Privy Council have on several occasions absolutely murdered Hindu law, and slaughtered Muhammadan law.”

The resolution was rejected but the points which Jinnah made are still relevant for Pakistan as well as India.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, November 21st, 2015