Pakistan, a nation often characterized by structural weakness, an unstable economy, and repressive laws, has once again enacted a controversial constitutional change: the 27th Constitutional Amendment. This amendment fundamentally alters the balance of power among the State institutions, particularly strengthening the military's role. The ensuing dissent from the country's judiciary serves as a powerful reminder to the Indian judiciary of the importance of never yielding to external forces.
The 27th Constitutional Amendment grants sweeping powers to the military establishment. Specifically, it grants greater powers to the present Field Marshal, Asim Munir, who is now the constitutionally recognized head of the Army, Navy, and Air Force. This change abolishes the current Chairman of Joint Chiefs of Staff Committee and creates a new post: the Chief of Defences Forces (CDF).The CDF will enjoy legal immunity from prosecution even after completing the term, a privilege previously reserved only for the head of the State. Furthermore, Munir, along with other top military brass, will enjoy lifelong protections.
Crucially, the amendment to Article 243 grants lifelong immunity from criminal proceedings and arrest to the ranks of Field Marshal, Admiral of the Fleet, and Marshal of the Air Force. This is a significant departure from the previous constitutional provisions (Article 248) where the President or a Governor only enjoyed immunity from criminal proceedings during their term of office, with no such privileges once out of office. Such unconditional immunities weaken access to justice and contradict the principles of the rule of law. These changes are seen as significantly increasing authoritarianism and dismantling the existing military hierarchy where all chiefs were treated as equals.
Executive Crackdown on the Supreme Court of Pakistan
Another fundamental change is the establishment of a new Federal Constitutional Court (FCC). The FCC is now superior to the Supreme Court of Pakistan. Supreme Court judge Justice Aminuddin Khan has been appointed as the first Chief Justice of this newly established FCC.
The FCC has exclusive powers to adjudicate disputes between the federal government, decide questions of law, and exercise jurisdiction in cases involving the enforcement of fundamental rights. Its decisions are binding on the Supreme Court of Pakistan. This means the Supreme Court of Pakistan will no longer hear constitutional cases, and the FCC will have original jurisdiction in constitutional disputes.
In protest against the Pakistan's 27th Constitutional Amendment, two senior judges of the Pakistan's Supreme Court, Justices Mansoor Ali Shah and Athar Minallah, resigned. Soon after, Justice Shams Mehmood Mirza of the Lahore High Court also resigned in protest. Justice Mansoor Ali Shah of the Pakistan Supreme Court described the amendment as a "grave assault to the Constitution of Pakistan."
In his 13-page resignation letter, Justice Mansoor stated: “When I took oath as a Judge of the Lahore High Court in 2009, I joined a constitutional court. My devotion to constitutionalism and my faith in the transformative power of the Constitution have guided every day of my judicial life. Over these years, I have sought to give life to the Constitution, to strengthen democracy, to expand rights and to uphold the rule of law. Today, I am asked to serve in a Court stripped of its constitutional jurisdiction – a court that no longer guards the fundamental rights of the people of Pakistan. That is not the court I joined, nor the judicial life I chose.”
He further added, “Continuing in such a version of the Supreme Court of Pakistan would only suggest that I bartered my oath for titles, salaries, or privileges.” This move, which Senior Advocate Ramachandran noted in a Facebook post with the caption, 'The most powerful resignation letter', demonstrates remarkable courage.
A Lesson
Just as Pakistan's judiciary is currently grappling with the far-reaching and authoritarian implications of the 27th Constitutional Amendment, India has a similar history with the controversial 39th Constitutional Amendment Act, 1975. This amendment, enacted during the Emergency by the Indira Gandhi government, was a direct and self-serving attempt to shield the Prime Minister from legal challenge after the Allahabad High Court invalidated her 1971 election due to corrupt practices. The core provision was the insertion of Article 329A, which brazenly placed the election of the President, Vice-President, Prime Minister, and Speaker of the Lok Sabha beyond the scrutiny of all Indian courts. Crucially, Clause (4) of Article 329A went a step further by retrospectively nullifying the Allahabad High Court's judgment, effectively validating her void election. While the immediate atmosphere surrounding the amendment might have reflected a momentary bowing to executive pressure, the Supreme Court of India ultimately corrected the error swiftly. In the landmark case of Indira Nehru Gandhi v. Raj Narain (1975), the Court courageously scrapped the amendment, holding that Clause (4) of Article 329A was unconstitutional. Relying on the Basic Structure Doctrine, the court affirmed that the provision violated fundamental features of the Constitution, including the rule of law, judicial review, free and fair elections, and the separation of powers, thereby asserting that Parliament's amending power is not absolute.
Despite Pakistan's shortcomings as a country, there is a silver lining. Pakistan's bench and bar have consistently pushed back against dictatorship. The legal fraternity has shown moments of unexpected courage, even while living in an environment where public discourse is discouraged. This judicial backbone is not unprecedented. In 2007, the fearless activism of Asma Jahangir and the lawyer's movement played a pivotal role in reinstating Chief Justice Iftikhar Chaudhary, a judicial ruling that directly challenged the action of a military dictator.
The recent resignation in Pakistan is a powerful demonstration of this remarkable courage. Justices Mansoor Ali Shah and Athar Minallah are compelling examples that one can speak with independence even from the highest seats of power.
In contrast, India does not have a history of judges resigning, with the exception of Justices Shelat, Hegde, and Grover who resigned in 1973 in protest against the supersession of senior judges by the appointment of Chief Justice A.N. Ray. Another equally powerful example, one that stands as a moral touchstone even today is the resignation of Justice H. R. Khanna in 1977. Justice Khanna, remembered for his historic dissent in ADM Jabalpur, was superseded for the position of Chief Justice of India despite being the senior-most judge of the Supreme Court. Today, judges in India occupy positions of immense responsibility, and uncomfortable judgments for the Government can invite non-elevations or unexplained transfers.
Pakistan's dissent is a critical reminder to the Indian judiciary of the importance of never yielding to external forces. The younger generation of lawyers looks up to judges, senior lawyers, and politicians who are unafraid to call a spade a spade. The recent actions of the Pakistani judiciary are the kind of judicial backbone that India's courts, especially in today's times, must strive to emulate. Unfortunately, we have reached a stage where citizens are even afraid to challenge the Air Quality Index (AQI) thinking that such an act would be perceived as anti-government.
Author is an Advocate practicing in the Supreme Court. Views are personal.