The light that refuses to go out

How India and Bangladesh resisted judicial capture

Watching Pakistan's constitutional landscape shift over the past year makes one feel a bit overwhelmed. I wrote on autocratic legalism in relation to Pakistan’s Twenty-Sixth and Twenty-Seventh Amendments earlier.

Most of us can feel a particular kind of despair settling in. You get to witness it in conversations among lawyers, in silent protests by civil society activists, in the hushed tones of journalists who know exactly what is happening. The pillars of justice are being quietly hollowed out from within. The Twenty-Sixth and Twenty-Seventh Amendments have restructured the judiciary in ways that would have seemed unthinkable just a few years ago. Judicial merit has been replaced with political loyalty. The creation of a Federal Constitutional Court and the reconstitution of the Judicial Commission of Pakistan have handed the executive effective control over who gets to be a judge. 

But here is the thing. In the suffocating darkness of this moment, there are lights worth turning toward. And they are not burning in some distant, idealized democracy. They are right here in our own neighbourhood. 

Take India as an example. In 2014, the Indian Parliament passed the Ninety-Ninth Amendment and the National Judicial Appointments Commission Act. This replaced the collegium system with a commission that included executive representatives and eminent persons. Sounded reasonable enough on paper. But in practice, it was something else entirely. A power grab, plain and simple. The amendment would have given the government effective veto power over judicial appointments. Independence of the judiciary would have been broken while the whole thing still looked perfectly legal. That is exactly what scholars call autocratic legalism. 

What happened next should give every Pakistani citizen a flicker of hope. 

In 2015, the Supreme Court of India struck down both the amendment and the Act. The case was called Supreme Court Advocates on Record Association versus Union of India. The judgment ran over a thousand pages. By a four-to-one majority, the Court held that judicial supremacy in appointments was part of the Constitution's basic structure. That meant even a supermajority in Parliament could not alter it. The judges were not just fighting for their own institutional privileges. They were defending something more fundamental. The very idea that an independent judiciary is essential to constitutional democracy. 

Moving further, I believe this was not easily achievable. The Indian government had nearly unanimous parliamentary approval. Ratification from a majority of states. The political pressure was enormous. Yet the Court stood its ground. The judges invoked the legacy of the 1973 Kesavananda Bharati case, which had established the basic structure doctrine precisely to prevent shifting parliamentary majorities from destroying constitutional fundamentals. The message was clear. The judiciary's role is not to please governments but to check them. That power must be guarded jealously. 

The same principle has been laid down by our superior courts by placing reliance on Kesavananda. The Mehram Ali case from the Supreme Court of Pakistan is one example where the judges reinforced the principle that the three organs of the state are supposed to work independently of each other and the judiciary's role is to keep a check and balance on the use of powers by the Executive and Parliament. 

Furthermore, India's story, as inspiring as it is, only gives us half the picture. Bangladesh offers something even more powerful because it tells us something that we desperately need to hear, that reversal is possible after an amendment has actually taken effect. This matters a great deal for Pakistan. 

Now moving on to what actually happened in Bangladesh. In 2014, the government passed the Sixteenth Amendment that transferred the power to remove Supreme Court judges from the Supreme Judicial Council to Parliament. Before this, the Council was composed of judges. After the amendment, politicians could remove judges. Constitutional scholars condemned the move as a direct attempt to make the judiciary subordinate to political power. 

Pakistan's judges now face a choice. They can accept the erosion of their institution. Or they can follow the path that India and Bangladesh have illuminated. There is light. It has already shone in our region. We must refuse to look away.

The message was clear. Do as we say, or lose your job. 

Bangladesh's judiciary refused to accept this quietly. In 2016, the High Court declared the Sixteenth Amendment unconstitutional. The following year, the Appellate Division upheld this decision which stated that the amendment violated the separation of powers. It threatened the independence of the judiciary, which they considered a core element of the constitutional structure. 

Then came the most remarkable chapter. In October 2024, Bangladesh's Supreme Court definitively reinstated the Supreme Judicial Council. The reversal of the Sixteenth Amendment was cemented. The power to discipline and remove judges was restored to the judiciary itself. What had been undone was now reestablished. The judiciary not only resisted the change, it had prevailed. 

Now think about what this means. India's judiciary stopped the threat before it could take effect. Bangladesh's judiciary defeated the threat after it had already become law. That is a crucial distinction for Pakistan, where the Twenty-Sixth and Twenty-Seventh Amendments are already in force. Bangladesh proves that even when the executive has seemingly won, the fight is not over. The courage, determination and resilience of the judges together with the force of constitutional doctrines can roll back even the most sweeping amendment disguised as reforms. 

The above mentioned amendments can be compared with Pakistan's trajectory. The Twenty-Sixth Amendment diluted the judiciary's role in appointments by packing the Judicial Commission with political appointees. The Twenty-Seventh Amendment went a step further. It stripped the Supreme Court of its constitutional jurisdiction. It created a Federal Constitutional Court whose first judges are appointed directly by the Prime Minister and President. High Court judges can now be transferred without their consent. If they refuse, they face disciplinary proceedings. This is not reform,but rather reengineering. It is systematic dismantling of institutional independence disguised as modernization. 

But here is what the Indian and Bangladeshi examples teach us. Constitutional amendments are not irreversible. The basic structure doctrine is not some exotic foreign concept. It is a principle rooted in the universal requirement that constitutions, to mean anything at all, must protect their own foundations. Pakistani scholars and judges have already invoked this doctrine in their jurisprudence. 

Our Constitution rests on the supremacy of the Constitution, separation of powers, judicial review, and judicial independence. These features cannot be amended away. 

Moreover, let us not forget our own history. When General Musharraf attempted to dismiss Chief Justice Iftikhar Chaudhry in 2007, the lawyers' movement rose up. The judiciary was eventually restored. That struggle was about the same principle that guided India's Supreme Court in the NJAC case and Bangladesh's courts in striking down the Sixteenth Amendment. The judiciary must be free to decide cases according to the law, not according to the wishes of those in power. 

India and Bangladesh's judiciaries did more than just preserve their own independence. They created a deterrent. The NJAC judgment and the Bangladeshi rulings sent a message to politicians across South Asia. If you attempt to subordinate the judiciary, you will face a fight. Not just in the streets, but in the courts themselves, where it matters most. Judicial independence is not a gift from the executive to be withdrawn at will. It is a constitutional birthright. It must be defended by judges who understand their role as guardians of the Constitution. 

For Pakistanis, the lesson is clear. Hope does not lie in waiting for political benevolence. It lies in the same determination that India's judges showed in 2015 and that Bangladesh's judges showed in 2024. The willingness to say no when executive power overreaches. The Twenty Sixth and Twenty Seventh Amendments are currently being challenged in Pakistan's courts. Whether the judiciary can summon the courage to follow the examples of its neighbors remains the single most important legal question facing this country. 

The Indian and Bangladeshi examples prove it is possible. They prove that even the most formidable constitutional assaults can be resisted and reversed. They prove that judges armed with courage and constitutional doctrine can stand firm against executive power. 

Pakistan's judges now face a choice. They can accept the erosion of their institution. Or they can follow the path that India and Bangladesh have illuminated.

There is light. It has already shone in our region. We must refuse to look away.