“THERE are two kinds of judges,” the late Indian lawyer-vizier Arun Jaitley once said, “those who know the law, and those who know the law minister.”
This rang even truer when Jaitley’s boss, Narendra Modi, took a hatchet to India’s judiciary, hoping to stuff it with the executive’s men. The result was the 99th Amendment: like the 26th here, the 99th there was meant to stack the forum in charge of judicial appointments — reducing its judges, while bringing in the law minister and two worthies mainly selected by politicians.
As one can expect, the amendment landed in India’s supreme court, where it was struck down. To safeguard the rights of citizens, held Justice Khehar, the judiciary had to be kept “absolutely insulated and independent from the other organs of governance”. The day after the decision, the Indian Express headline ran, ‘Court supreme: Supreme Court’.
In the decade since, Modi, Shah & Co have had to rely on less direct ways to mangle the system — passing ugly laws and banking on servile intellectuals on the bench, the recently retired Justice Chandrachud a case in point.
Still, had the court upheld the 99th Amendment, it would have had to surrender to its captors all at once. Instead, Modi is now faced with the tedious business of strangling judicial independence one slow tweak at a time. “We are the only country in the world where judges appoint judges,” moaned Jaitley.
Had he looked to his left, he’d have found Pakistanis moaning the same thing — for as little reason: ‘judges appointing judges’ has been the best solution to Islamabad and Delhi’s shared inheritance; where the courts were created not to deliver justice, but to help British masters keep the peace among their wild subjects.
The result is the greatest judicial regression in 30 years.
After independence, however, the white wigs grew harder to justify: one could either keep the executive happy, or protect a free people’s basic rights.
If with the former usually winning out: as our first half-century demonstrates, the third branch was less hammer than handmaiden; coups came giftwrapped as early as ’54, ex-chief justices became Ayub and Yahya’s law ministers, Bhutto extended pliant judges, and Zia purged naughty ones.
Hence, as Khehar put it, the need to wall off the judiciary from the centre’s sticky fingers. In Pakistan, that road has had three milestones. Held Sajjad Ali Shah in ‘Al Jehad Trust’in 1996, “We do not buy the idea that soon as a judge takes oath, there is a sudden transformation, and he forgets his past connections…” In response to Benazir’s court-packing, the chief justice wrested appointments away from the executive (his court was stormed by Nawaz League goons a year later, judicial independence being a bipartisan ailment).
The next gains were powered by the lawyer’s movement, itself a response to Musharraf detaining judges during emergency. The 18th and 19th Amendments created a new judicial commission for appointments, with the chief justice now part of a majority of judges, and a parliamentary committee — to much bellyaching — off to the sidelines.
Here it must be said the post-restoration judiciary proved deeply flawed: billion-dollar disasters ensued in Reko Diq and Karkey; populist chiefs took senseless suo motus; and the lower courts remained as broken as ever, with pendency soaring.
Yet not a smidge of that has been on the 26th Amendment’s awful agenda. If it were about the suo motu, that’s been in constant decline since Saqib Nisar’s exit. If it were about pendency, over 80 per cent of cases live and die at the district level, while this amendment only has eyes for superior courts.
Because the 26th was born not because of what the judges were getting wrong, but for what they were getting right: that polls be held in 90 days; that civilians be tried in civilian courts; that bail not be at executive whim; that fair judges decide election rigging; that reserved seats be meant for the parties that won them; and that the high courts be able to cry interference by the deep state.
The result is before us: the greatest judicial regression in 30 years. Appointments have returned to the crown, the post-Musharraf consensus stands shattered, and intra-court seniority undone, with five judges of the Islamabad High Court petitioning the Supreme Court for redressal. Throughout, the amendment has remained undecided.
Of course, the road to serfdom has three milestones too, mostly own-goals: the toxic, two-year reference against Qazi Faez Isa at the behest of the shadowlands; the bizarre dissenting notes against the Bandial court directing polls in 90 days; and the bogus practice and procedure law. Finally, to paraphrase one sportswriter, the cherry on top of the plane crash: Chief Justice Isa’s verdicts.
Lest his successor arrest the decline, any gains over the past three decades may well go back to zero. It’s time for choosing.
The writer is a barrister.
Published in Dawn, March 5th, 2025
