Jinnah’s federal court was a bridge. The 27th Amendment burns it .
Jinnah’s federal court was a bridge. The 27th Amendment burns it .
جناح کی وفاقی عدالت ایک پل تھی۔ 27ویں ترمیم نے اسے جلا دیا۔
The promulgation of the 27th Amendment marks a moment of unmistakable constitutional rupture in Pakistan. For the first time, the Supreme Court has found its writ substantially curtailed.
The jurisdiction to enforce fundamental rights and to pronounce upon the central questions of our constitutional order has been transferred elsewhere, leaving the once apex court — the ultimate sentinel of our basic freedoms — ‘supreme’ largely only in name.
Yet, this is not the first time our subcontinent has grappled with the creation of a federal court.
For an all-India federation.
In 1935, the British Parliament enacted the Government of India Act. Among its many innovations, it established a federal court for the nascent Indian federation. It provided, for the first time, a higher court within India to hear certain appeals from the high courts.
But the new court’s remit was intentionally narrow: its concern lay with disputes arising from the architecture of the federation itself; from the allocation of powers between the centre, the provinces, and the princely states. It had no role in enforcing fundamental rights, for none existed in a justiciable form, and it remained subordinate to the Privy Council in the UK, which retained the final word.
The impulse for a federal court was rooted in the ambition to create an all-India federation in the 1930s. The idea was shaped at the Indian Round Table Conferences held between 1930 and 1932, where delegates from British India and the Indian States gathered to chart a path towards self-government.
The conferences followed the Simon Commission Report of 1930, a document notable both for its diagnosis — that any meaningful constitutional settlement must include the Indian states — and for the controversy it provoked, owing to the absence of any Indian representation at the commission itself.
The Muslim League and the Congress rejected it. Nehru countered with his own report but failed to address the demands of Muslims, so Jinnah advanced his Fourteen Points, in which federalism, provincial autonomy, minority safeguards, and the treatment of the States formed recurring themes.
At the time, the high courts of India were, for most practical purposes, the final judicial authorities in their provinces. There was no apex court within India; only the distant Privy Council stood above them. It was therefore natural that, when the first Roundtable Conference convened in late 1930, the question of a supreme court, or at least some kind of federal court, should arise.
Although the discussion was preliminary, Lord John Sankey, the Lord Chancellor, observed that any federal constitution must have at its centre a federal court, as was the case in Canada, Australia, and the United States.
The real work took place at the second Roundtable Conference in 1931 within the Federal Structure Committee. Here, the delegates concurred that a new court was needed to manage disputes inherent in federal design and to interpret the new constitution.
Opinions diverged on whether this new body should also assume the mantle of a supreme court for ordinary appeals. Some wished to fold all appellate functions into a single institution; others preferred a more cautious approach, starting with a federal court of limited jurisdiction. The discussions, spread over several meetings, circled the twin questions of scope and composition.
Political necessity
Jinnah, during these sessions, played the part of the measured inquirer. His interventions reveal a statesman preoccupied with the fragile architecture of an all-India federation. He made clear that “the question” which they had to approach was one “which must be approached from a very different point of view … for the simple reason that we are proceeding now on the basis of all-India Federation”.
His principal concern was the position of the princely states, which resisted any arrangement that would permit their ordinary cases to be appealed to a federal court. As he pointed out, a court with broad appellate jurisdiction would be one to which “one third of India does not submit”. Yet, Jinnah added that he personally favoured a supreme court, and had done so since the early 1920s, when the issue was debated in the Legislative Assembly. He said:
“[P]ersonally, I have no hesitation in saying that I have always been a supporter of the Supreme Court, and I have always maintained that it is high time that we had a Supreme Court in British India. The question has been debated more than once since 1921, and even before that it was discussed, and we pressed in the Legislature more than once that a Supreme Court should be established; but then we were contemplating a very different state of things; we were then confining our attention only to British India, and the question did not present itself in that difficult aspect which it now bears”.
It is here that Jinnah’s strategy becomes unmistakable. His preference for a federal court with narrow, constitution-specific jurisdiction was not born of constitutional philosophy but of political necessity. He understood that the Indian states would refuse to join a federation if it meant subjecting themselves to a general appellate court.
hus, the limited federal court was a temporary accommodation, a means of keeping the States at the table long enough for a federation to take shape. In reality, his goal remained unchanged: an Indian supreme court that would ultimately replace the Privy Council and exercise the full range of appellate and constitutional jurisdiction befitting a sovereign people.
This becomes clearer as the Committee’s debates matured. Jinnah submitted that the federal court should initially be confined to exercising “only original jurisdiction” over constitutional questions so as not to jeopardise the larger federal settlement:
“You may be startled when I say that you have to divide this thing into three parts, and keep them separate. I would suggest that we should start with the Federal Court on the hypothesis that we have solved this conundrum of all-India Federation, and confine ourselves to giving jurisdiction to the Federal Court only in matters relating to the constitution and arising out of the constitution.”
The ultimate objective
But he immediately tied this limited beginning to a much broader future. He articulated a clear, sequential vision: first a narrow federal court; then a full supreme court with the same civil appellate jurisdiction as the Privy Council; then, in time, the addition of criminal appellate jurisdiction; and ultimately, an apex court to which even the Indian states would voluntarily accede.
His words are unmistakable: “let us develop the idea of a separate Supreme Court having the same jurisdiction as the Privy Council has now, and, in the course of time, that Supreme Court may succeed in attracting the attention of the Indian States…”
Towards the end of the Committee’s work, Jinnah emphasised that the separation between a federal court and a supreme court was a temporary necessity, an accommodation to the peculiarities of federal formation. Ultimately, he insisted, India ought to aspire to its own supreme court, as other dominions had done.
“Above all, Sir, I cannot understand why India should not aspire to its own Supreme Court. Other Dominions have got it. There can, therefore, be no question as to the necessity and as to the justice of this; and accordingly, I say that we should have a Supreme Court. … I am only prepared to agree to this separation in view of the idea of an all-India Federation, apart from which our task would have been much easier.”
Although the Roundtable Conferences faltered on larger political questions, the idea of a federal court survived. It was endorsed in the British government’s subsequent white paper, examined by the Joint Committee of Parliament, and carried into the Government of India Act, 1935.
The committee, wary of jurisdictional overlap, postponed the creation of a supreme court, though it recommended that the federal legislature retain the power to enhance the federal court’s jurisdiction in time. This became the basis of the Supreme Court of Pakistan in the 1956 Constitution, with an extended jurisdiction to enforce fundamental rights and hear ordinary appeals arising from the high courts.
Jinnah’s accommodation in favour of a narrowly drawn federal court during the Roundtable Conferences was therefore a transient one, adopted only to secure the federation; the ultimate objective, to which he returned repeatedly, was the establishment of a true supreme court.
His proposals reveal a statesman intent on building durable institutions suited to the realities of a diverse subcontinent at the time. He was motivated by the ideal to create unity and build long-lasting, sustainable institutions — not to tear down existing ones.
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