In the recent judicial crisis is a referential loop. More disturbing is that no one knows who is to blame or to what extent, or how to balance the scale of blame (or on which side to put the weight). To summarise, Chief Justice IHC Sarfraz Dogar wrote a letter to Chief Justice Yahya Afridi, suggesting the transfer of five judges from the Islamabad High Court to the high courts of other provinces. CJ Afridi, however, refused to do so, saying that due process would not be observed in such transfers, giving them a “punitive character.”[1] But which due process is the Honorable Chief Justice referring to? There is no need for judicial consent anymore; it has now been incorporated into the Judicial Commission of Pakistan (JCP). Little can be said about the recent developments in the judiciary following the 27th amendment, because the judiciary is limited in the space it has to play its role. There used to be a consent aspect in Article 200; now there isn’t. There was even an argument put forward by the counsels that it’d be a full bench, as it was a matter of the independent judiciary[2], but now we have a separate constitutional court.
One must pause here, however, and resist the temptation of clean narratives. Three judges signed a letter to the Supreme Judicial Council requesting clarification regarding the alleged involvement of state officials in judicial matters. At the time, that was considered an act of institutional courage. But little did the Honorable Judges know that the letter was the transfer permit. If there’s no punishment for exercising transfer power, and if the judges appointed for a transfer map are such a close reflection of a previous judicial dissent, then what’s being approved and why, on public grounds?
InAl-Jehad Trust and others v. Federation of Pakistan[3] the Court had held that the independence of Judiciary is “inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary.”In addition to this, the court in Government of Sindh v. Sharaf Faridi[4], held that “every Judge is free to decide matters before him in accordance with the assessment of the facts and his understanding of the law without improper influences, inducements and pressures, direct or indirect, from any quarter for any reasons.”
The experience of India is therefore a very useful one to take note of, not because it is flawless, but because it remains, at least in its form, what Pakistan has now put to death in its legislation. The authority to transfer is granted in the name of the President by the Indian Constitution under Article 222, but the President has no authority to propose the transfer; it has to be initiated by the CJI, who has a determinative opinion. Prior to any recommendation, CJI has to consider the views of four senior-most judges of the Supreme Court, opinions of the Chief Judge of the sending court and the receiving court (in writing) and personal circumstances of the judge to be transferred. The transfer, furthermore, may only be exercised in “public interest” to gain the judge’s specialist knowledge for the court, to protect the judge from local political entanglements, and to balance numbers, but not as punishment for decisions which the government does not like. Whole transfer of administrative policy is not permitted, and each case needs to be taken on its own merits.
The Indian model is no exception to having its own shortcomings. In January 2026, a sitting judge of the Supreme Court of India publicly castigated the collegium for its willingness to refer a transfer to the executive for reconsideration. The same month, a Constitution Bench ruled that fresh directions must be issued, based on reasoned orders, written consultations, and merits, precisely because the process had started to exhibit a similar form of ‘creeping arbitrariness’ to which it was supposed to be immune. And when the government tried to replace the collegium with the National Judicial Appointments Commission, the Supreme Court ruled in favor of judicial supremacy in appointments and transfers, stating that it was a part of the basic structure of the Constitution. Structurally, the 27th Amendment was achieved, where NJAC failed in India, as the court that could have struck it down has already been restructured in the process of Pakistan’s amendment.
Originally, Article 200 of the Pakistani constitution had a similar rationale as India’s consultative approach. If you have consent, it’s a protection racket. The 27th Amendment was not only a procedural change but also removed an institutional obstacle that made it difficult to conduct a punitive transfer. What India has got in its collegium, Pakistan has replaced with a commission that can be appealed by a majority. This commission’s decisions are binding, even on a dissenting Chief Justice. The numbers are pretty stark: If enough members gather, they can outvote the chair, and the transfer takes place. This is not a violation of the procedure: the Chief Justice of Pakistan sent a letter protesting the meeting itself, as it would have assumed a punitive tone. The meeting was conducted, and the transfers were approved anyway. It is a system that is running exactly as intended by the 27th Amendment. How legally brutal could the system be?
Besides, Justice Babar Sattar was denied the right to hear. In its simplest terms, natural justice requires only two things: that no man be condemned without hearing him and that he not be judged by one who already has decided against him. A judge of the Islamabad High Court shouldn’t have to invoke that principle for himself because what any litigant who has ever appeared before him should have been entitled to. If it doesn’t get to the judge, one has the right to ask, how does it get to the accused?
CJ Afridi’s objections were constitutionally correct, but they did not affect the institution. IHC Chief Justice Dogar’s proposal was on the right process but lacked substance. The JCP majority used the new powers it had. The judges are facing a few difficult decisions, and there are even fewer opportunities for the judiciary to speak. A special constitutional court was established, and the most critical issues are generally the ones most unlikely to reach the constitutional court. In other words, the referential loop is not just a “happening” on the spot. It was built in.
[1] Malik Asad, ‘Uncertainty over IHC judges’ transfer ethe judiciarythe judiciarythechoes in courtroom’ Dawn newspaper (online, 2026) https://www.dawn.com/news/1995599/uncertainty-over-ihc-judges-transfer-echoes-in-courtroom accessed 28 April 2026.
[2] Adil Khan Bazai case (2025 SCP 14):
He added that a case being heard by a Bench cannot be withdrawn through an administrative order. He submits that these questions are of fundamental importance and go to the root of the independence of the judiciary and submits that it ought to be heard by a Full Court of this Court so that the matter is settled once and for all.
[3] PLD 1996 SC 324
[4] PLD 1994 SC 105
