The only aftermath of Twenty-Seventh constitutional amendment happens to be the re-emergence of the debate surrounding the scope of parliament’s amending power. This renewed relevance necessitates a re-examination of District Bar Association v Federation of Pakistan. The court engaged with the question whether parliament possesses unlimited authority to amend the constitution or whether that power is constrained by implied limitations, commonly described as the Basic Structure or Salient Features of the constitution in detail. Although the immediate controversy arose from challenges to the Eighteenth Amendment, the proceedings compelled the court to confront a much broader dilemma; parliamentary sovereignty or constitutional fundamentals?
Pakistan’s constitutional jurisprudence has historically demonstrated hesitance in adopting the Basic Structure doctrine as developed by the Indian Supreme Court. In the early years following the 1973 Constitution, the Court engaged with the notion of a grund norm, most notably in Asma Jilani, where the Objectives Resolution and the sovereignty of Allah were acknowledged as foundational. However, subsequent decisions in State v Zia-ur-Rehman and Federation of Pakistan v United Sugar Mills firmly clarified that such recognition did not empower the judiciary to invalidate constitutional provisions on the basis of philosophical concepts, national aspirations, or an assumed basic structure. The Court emphasized that, as a creature of the Constitution, it could not annul the very instrument from which it derived its authority. This position was further reinforced in Dewan Textile Mills, where it was held that Parliament, when amending the Constitution, exercises a constituent power distinct from ordinary legislative authority, and that the validity of a constitutional amendment is not dependent upon conformity with any higher legal norm.
A nuanced shift emerged in Mahmood Khan Achakzai, where the Court acknowledged that the Constitution contains identifiable salient features, including parliamentary democracy, federalism, and the independence of the judiciary, largely rooted in the Objectives Resolution. Yet the Court remained careful to preserve the established distinction between recognition and enforcement. While it held that Parliament ought not to alter these foundational features, it simultaneously concluded that any such alteration would present a political, rather than judicial, question.
An apparent departure from this restrained approach occurred in Zafar Ali Shah, where the Court validated a military takeover while paradoxically restraining the military ruler from altering the Constitution’s salient features. This judgment has been widely criticized for its internal inconsistency, as the Court imposed limits on an extra-constitutional regime that it had consistently refused to enforce against a democratically elected Parliament. The episode is often described as an exercise in constitutional prudence rather than principled jurisprudence. The Court subsequently reaffirmed its traditional position in Pakistan Lawyers Forum, where it unanimously dismissed challenges to the Seventeenth Amendment and reiterated that, even if a basic structure exists conceptually, the power to amend the Constitution resides with the people acting through Parliament, not with the judiciary acting as a super-legislature.
It is against this jurisprudential backdrop that District Bar Association v Federation of Pakistan assumes particular significance. Justice Jawwad S. Khawaja advanced a robust argument that Parliament is not sovereign and that the Preamble contains express constitutional commands which operate as substantive constraints on the amending power. In his view, these limitations are not merely political but judicially enforceable, enabling the Supreme Court to strike down amendments that manifestly defy the constitutional scheme. Justice Sh. Azmat Saeed, with the concurrence of Justice Umar Ata Bandial, similarly held that the Constitution embodies a coherent scheme reflecting salient features such as democracy, parliamentary government, and judicial independence, which cannot be repealed, abrogated, or substantively altered through amendment. This reasoning was taken further by Justice Ejaz Afzal Khan, joined by Justice Ijaz Ahmed Chaudhry, who explicitly invoked the Basic Structure doctrine to invalidate the Twenty-First Amendment, identifying democracy, fundamental rights, separation of powers, and judicial independence as immutable elements of the constitutional order.
Justice Dost Muhammad Khan likewise held that, notwithstanding Articles 239(5) and (6), Parliament lacked the authority to reverse the process of judicial independence, while Justice Sarmad Jalal Osmany grounded similar limits in what he described as the Constitution’s “conscience.” Justice Qazi Faez Isa endorsed this approach, rejecting the notion of unfettered constituent power and emphasizing the Supreme Court’s role as guardian of inalienable constitutional features reflected in the Preamble. In contrast, Chief Justice Nasir-ul-Mulk, Justice Asif Saeed Khan Khosa, and Justice Mian Saqib Nisar categorically rejected the Basic Structure doctrine. Justice Khosa cautioned that attempting to judicially define immutable constitutional features would amount to an unwise effort by the judiciary. Justice Saqib Nisar went further, condemning the Indian experience as an exercise in unchecked judicial power and describing the doctrine as a constitutional malady for which there is no cure short of institutional upheaval.
The enduring significance of District Bar Association lies in the judgment being, arguably, the most important constitutional law decision in the history of Pakistan.[1] A majority of the Supreme Court affirmed that it can review the substance of constitutional amendments. Thirteen of seventeen judges held that amendments may be struck down if they damage the Constitution’s salient features. Four judges denied any power of judicial review over amendments, while eight others accepted the power but declined to exercise it in these cases. Five judges went further, holding that parts of the 18th and 21st Amendments should be invalidated. Taken together, the judgment entrenched the principle that Parliament’s amending power is not absolute. The court did emerge as the guardians of the constitution, but, here we are, once again, back to square one. Another amendment. Same old chants of basic structure. There is, truly, no place like home.
[1] Waqqas Mir, Saying not what the Constitution is … but what it should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution (Shaikh Ahmad Hassan School of Law, LUMS, May 2024) https://sahsol.lums.edu.pk/sites/default/files/2024-05/Saying%20not%20what%20the%20Constitution%20is%20but%20what%20it%20should%20be.pdf accessed [9 Jan, 2026]
