In recent months, a narrative has been pushed in legal and political circles suggesting that the 26th Constitutional Amendment, which significantly alters the independence of the judiciary, was a necessary response to judicial overreach. This narrative holds that the judiciary, particularly the superior courts, repeatedly intervened in political matters in the past, including the removal of elected Prime Ministers, and therefore, Parliament was compelled to “restore balance” by introducing reforms through this amendment.
While this argument may seem persuasive to those frustrated by some past judicial decisions, it is based on a deeply flawed understanding of constitutional structure and democratic principles. Even if certain judicial decisions were controversial or open to criticism, they do not and cannot justify a constitutional change that structurally weakens judicial independence and tilts the balance of power decisively in favour of the executive.
Let us assume, for the sake of argument, that the judiciary erred in some high-profile cases involving political figures, including, as often cited, the disqualification of elected Prime Ministers. These cases are frequently described as examples of “judicial overreach.” However, whether those judgements were right or wrong is not the central issue. The proper question is whether such errors, if they occurred, justify permanently changing the constitutional architecture in a way that subordinates the judiciary to the executive.
There is a fundamental distinction between a flawed or even unjust judgement and a constitutional amendment that disrupts the separation of powers. A judgement can be revisited, criticised, or overturned. A constitutional amendment, on the other hand, reshapes the very system under which the judiciary operates. It is not a correction of error; it is a shift of power, and one that has far-reaching consequences.
The most concerning aspect of the 26th Constitutional Amendment is the way it affects the formation of constitutional benches in the Supreme Court. These benches are responsible for hearing cases involving fundamental rights, federalism, executive accountability, constitutional interpretation, and the limits of state power. These are not routine legal matters; they are the cases that shape the nation’s legal and political future.
The 26th Constitutional Amendment is not a solution to judicial mistakes of the past. It is an overcorrection that causes far more harm than it seeks to fix
By giving the executive a dominant role in determining the composition of these benches, the amendment compromises the very principle of judicial independence. The doctrine of separation of powers, a cornerstone of any democratic constitution, demands that each branch of government operate independently, free from the undue influence of the others. When the executive can influence or control which judges hear constitutional cases, the judiciary is no longer an independent check; it becomes vulnerable to political manipulation.
This raises a disturbing question: What sort of judgements can we expect from benches that are effectively formed under executive influence? In matters where the government itself is a party, particularly in cases alleging abuse of power, suppression of dissent, or violations of fundamental rights, can the people be confident that justice will be done?
Supporters of the amendment often argue that this is a form of “balance being restored,” that the judiciary, having interfered too often in politics, must now accept institutional limits. Some go further and suggest that this is the judiciary’s “logical fate,” brought upon itself by years of overreach.
This line of reasoning is both dangerous and deeply anti-constitutional.
Constitutional arrangements are not based on notions of revenge, moral balancing, or historical correction. They are based on enduring principles: independence, accountability, fairness, and the rule of law. If one institution makes mistakes, the answer is not to cripple that institution. The answer is internal reform, transparency, and adherence to legal and ethical standards, not handing its powers to another branch of government.
Justifying executive overreach based on judicial missteps is a slippery slope. If we accept this logic, what is to stop future governments from using past parliamentary failures to justify limits on the legislature, or from using past media excesses to restrict press freedom?
It must be emphasised that judicial independence is not a privilege for judges; it is a protection for citizens. When courts are free to decide cases without political pressure, it is the people who benefit. Civil liberties, minority rights, protections against arbitrary detention, media freedoms, and electoral fairness all depend on a judiciary that can say “no” to executive overreach.
With the 26th Amendment in place, we now face a situation where the very courts meant to check government power will be formed under its influence. This is not theoretical; it will shape the outcomes of cases in which the rights of ordinary citizens are at stake.
Some observers have tried to argue that this is a political correction, not a constitutional crisis. That is both misleading and complacent. When a foundational principle like separation of powers is undermined, it affects every other aspect of democratic life. The balance that once allowed each institution to operate with autonomy is being redrawn, and not in favour of democracy.
The 26th Constitutional Amendment is not a solution to judicial mistakes of the past. It is an overcorrection that causes far more harm than it seeks to fix. It shifts the balance of power toward the executive at the expense of judicial independence, and by doing so, it endangers the constitutional rights of every citizen.
We must resist the attempt to frame this as a “natural outcome” of judicial overreach. It is not. It is a deliberate constitutional choice and, in my view, a deeply damaging one. The principle of separation of powers must be preserved, not undermined, in the name of past grievances. Our democracy depends on it.