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Introduction

Constitutional amendments are potent instruments that can either reinforce democratic checks or systematically dismantle them. The recent 27th Amendment to the Constitution of Pakistan (passed in November 2025) represents a watershed moment where the executive and military have fundamentally reconfigured the state’s hierarchy, potentially reducing the judiciary to a subordinate role.

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The 27th Amendment: Restructuring Power in Pakistan

• Creation of the Federal Constitutional Court (FCC): The amendment establishes a new FCC, which assumes exclusive jurisdiction over constitutional interpretation and fundamental rights—functions previously held by the Supreme Court.
  Eg: The Supreme Court is now effectively relegated to an appellate body for non-constitutional matters, stripping it of its role as the “guardian of the Constitution”.
• Executive Control Over Appointments: The President, on the Prime Minister’s advice, appoints the first “batch” of FCC judges without objective selection criteria, institutionalizing political patronage.
• Non-Consensual Transfers: The amendment allows for the transfer of High Court judges between provinces without their consent; refusal to comply can trigger disciplinary removal. 
• Consolidation of Military Power: It creates the post of Chief of Defence Forces (CDF), concurrently held by the Army Chief, granting him primacy over all services and lifetime immunity from prosecution.
  Eg: This effectively formalizes a “hybrid-plus” model of governance where the military holds constitutional rank and immunity.

Associated Concerns: Erosion of the Rule of Law

• Institutional Fragmentation: Splitting the judiciary into a “Constitutional Court” and an “Appellate Court” creates a parallel system that is easier for the executive to manipulate.
• Absence of Accountability: Granting lifetime immunity to the President and top military brass violates the principle of equality before the law, creating a class of “untouchables.”
• Silencing Dissent: The haste with which the bill was passed without public debate or opposition consultation undermines parliamentary sovereignty.
• Judicial Resignations: The resignation of senior judges like Justice Mansoor Ali Shah highlights a profound loss of faith in the judicial system’s ability to protect citizen rights.

Lessons for India: Safeguarding Judicial Autonomy

• Fortifying the Basic Structure: India must continue to uphold the Basic Structure Doctrine (Kesavananda Bharati Case) as a shield against amendments that seek to dilute judicial review or separation of powers.
• Transparent Collegium Reforms: While the Collegium system faces criticism, the lesson from Pakistan is that any shift toward executive-led appointments must be resisted to prevent the “political capture” of the bench.
• Protection Against Arbitrary Transfers: Indian policymakers must ensure that judge transfers remain transparent and based on administrative necessity rather than executive whim or “punitive” intent.
• Resistance to Parallel Courts: Any proposal to create specialized constitutional courts (separate from the Supreme Court) must be scrutinized to ensure they do not become “executive-friendly” silos.
• Institutional Solidarity: The Indian Bar and Bench must maintain a unified front, as “divided judiciaries” are more susceptible to legislative encroachment.

Conclusion

The 27th Amendment reflects a “democratic dilemma” where legal procedures are used to undermine democratic substance. For India, the Pakistani experience serves as a stark reminder that judicial independence is not just a legal provision but a continuous struggle. Safeguarding this autonomy is essential to ensure that the judiciary remains a “counter-majoritarian” check on arbitrary power, preserving the sanctity of the Indian Republic.

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