2025 SCLR 35 (Concurring Note by Salahuddin Panhwar, J)

Salahuddin Panhwar, J, – I have had the benefit of reading the judgment authored by my learned brother, Mr Justice Muhammad Ali Mazhar. I find it appropriate to offer my detailed reasons also in order to examine more closely three constitutional questions raised in the petitions before us:

(a)    Whether the transfer of Judges from Provincial High Courts to the Islamabad High Court is constitutionally valid;

(b)    Whether such transfers substantively reinforce the federal character of the judiciary by reflecting linguistic and regional diversity of Pakistan and enriching the institutional quality of the Court; and

(c)    Whether such a transfer necessitates the re-administration of the judicial oath under Article 194 of the Constitution, or whether continuity of judicial office is preserved.

2. The Constitution of Islamic Republic of Pakistan, 1973, (hereinafter referred to as the “Constitution”) is a multifaceted instrument; a single word at times carries one meaning in one context, and another in a totally different context. The words in the constitution are not part of an ordinary novel, which can be interpreted by placing a dictionary at one’s right and a grammar book on the left, these words cannot be looked through a cold eye of a lexicographer, but with a perception that they are formed in a single complex instrument, in which one part may throw light on another, I must insist that the construction must hold a balance between all of its parts. I cannot resist adding the wise words by Justice Holmes, in Towne v. Eisner1 that “A word is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used”.

3. To reach the apical of the tree, it becomes a necessity to first touch the roots of this tree, so i must begin from the very base, the Judiciary, being one of the three organs of the state is defined as a significant organ of sovereign power, entrusted with the duty of administering justice according to Constitution, and the law. The Courts in Pakistan are the creation of the Constitution and the law, and they are to apply the law for the settlement of disputes and controversies, that are brought before them, as has been provided under Article 175(2) of the Constitution, that “no court shall have any jurisdiction save as in or may be conferred on it, by the Constitution or by or under the Law”. Thusly, interpretation of the Constitution requires more than linguistic precision. It demands fidelity to the structure, spirit, and purpose of the constitutional text. A constitutional term may derive different meanings from its surrounding context and the part it plays in the larger architecture of the document. The Constitution, unlike an ordinary statute or literary text, must be interpreted holistically.

4. A foundational principle of constitutional interpretation is that no single provision of the Constitution, unless expressly stated, can override another. The Constitution is to be construed as a coherent and integrated whole, with each provision complementing and sustaining the others. This Court in Lahore Development Authority v. Ms. Imrana Tiwana (2015 SCMR 1739) held that “constitutional provision cannot, unless it is so specifically provided, override another and must be harmoniously construed together.” Similarly, in Hamza Rasheed Khan v. Election Appellate Tribunal, Lahore High Court (PLD 2024 SC 1028), it was reaffirmed that “the Constitution is to be read as an organic whole and its provisions, especially those closely related to each other, are to be harmoniously reconciled instead of making out inconsistencies between them.” The judgment further clarified that “one constitutional provision cannot, unless expressly so provided, override the other nor can one be so construed as to destroy the other but rather both are to be construed harmoniously, each sustaining the other.”

5. This view is firmly grounded in earlier jurisprudence. In State v. Zia-ur- Rehman (PLD 1973 SC 49), this Court held that “where there is a conflict between two provisions of the Constitution, every endeavour must be made to give a harmonious interpretation so that both provisions may be given their due place in the constitutional framework”. Similarly, in Qazi Hussain Ahmad v. General Pervez Musharraf (PLD 2002 SC 853), this Court emphasised that “all constitutional provisions have to be read together and harmonious construction be placed on such provisions so that no provision is rendered nugatory.” In Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it was observed that the “Constitution must be interpreted in a manner that gives meaning to all its parts”. Likewise, in Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), this Court ruled that “if literal interpretation creates inconsistency, the Court may not follow the grammatical and literal construction of the words and adopt construction which would harmonise the two apparently conflicting provisions and make their working purposeful.” These authorities collectively affirm that harmonious interpretation is essential to preserve the structural integrity and purposive functioning of the Constitution. As in the constitutional context of Pakistan, the functionalist approach informed by textual fidelity has emerged as both a pragmatic and principled method of adjudication.

6. While the Constitution does not adopt a rigid doctrine of separation of powers, the independence of the judiciary remains a core constitutional value, warranting a contextual and purposive interpretive stance. This Court has alternated between formalist and functionalist approaches depending on the constitutional question at hand. In Registrar, Supreme Court v. Wali Muhammad (1997 SCMR 141), a more formalist method prevailed, grounding the analysis in the structure of the Constitution and the classical notion of institutional independence. Conversely, in Al-Raham Travels v. Ministry of Religious Affairs (2011 SCMR 1621), the Court embraced a functionalist perspective, recognising the Constitution as a “living organism” to be interpreted in light of historical continuity, present conditions, and future needs. This dynamic interpretive lens was further endorsed in Province of Sindh v. MQM (PLD 2014 SC 531) and Muhammad Aslam Awan v. Federation of Pakistan (2014 SCMR 1289), underpinning that constitutional meaning evolves alongside institutional practice and democratic demands.

7. Just as the apex of a tree cannot be reached without grounding in its roots, a constitutional court must begin its analysis at the foundation of the legal order, which is the judiciary itself. The judiciary, as one of the three co-equal organs of the State, is entrusted with the solemn duty of interpreting and upholding the Constitution in context of the Article 175(2) of the Constitution which affirms the jurisdiction of courts limited to that conferred by the Constitution or by statute. This constitutional design recognises the judiciary not merely as an arbiter of disputes, but as a constitutional organ that sustains the rule of law. Such functionalism, however, is not unconstrained. As Peter L. Strauss has persuasively argued, “functionalism must be informed by text; textualism, by function.”2 This reconciliatory formulation anchors judicial reasoning in the constitutional text while permitting the judiciary to adapt its application to evolving governance contexts. Accordingly, functionalism, when disciplined by text, serves not as an instrument of judicial expansionism but as a necessary interpretive tool to preserve the Constitution’s spirit and ensure the effective discharge of each organ’s constitutional mandate. In sum, the interpretive framework must balance respect for the constitutional text with a functional sensitivity to the roles and responsibilities of each organ of the State. Functionalism, when guided by constitutional structure and disciplined by textual clarity, ensures that the Constitution is not only upheld in letter but animated in spirit.

8. It needs to be added that, independence of the judiciary is a cornerstone of the constitutional order of Pakistan. Without it, the judiciary would lose its legitimacy as a neutral forum for the resolution of disputes and a guardian against constitutional transgression. Judicial independence, both institutional and individual, is expressly recognised in Articles 2A, 175, and the preamble to the Constitution. It comprises safeguards including security of tenure, impartial appointments, non-interference by the executive, protection from arbitrary transfers, and adequate financial autonomy. While the petitioners contend that the transfers in question violate Article 2A and compromise the independence of the judiciary, this argument is unsupported by the constitutional framework. Article 200 imposes clear safeguards. The powers of the President to transfer is subject to the consent of the judge and mandatory consultation with the Chief Justice of Pakistan and the Chief Justices of the relevant High Courts. These procedural prerequisites minimise the risk of executive overreach. Transfers made in compliance with these safeguards are constitutionally sound and promote the larger objectives of national integration, equitable representation, and institutional diversity.

9. Pakistan adopts a federal system of government based on a trichotomy of powers, wherein each organ of the State is required to function strictly within the bounds prescribed by the Constitution. The judiciary has been assigned a delicate and crucial role, namely to ensure that no organ of the State acts in violation of any constitutional provision or any law. In view of this responsibility, the framers of the Constitution envisaged an independent judiciary. However, the judiciary itself must also act within the limits of its jurisdiction in accordance with Article 175(2) of the Constitution, whereby courts are bound by defined jurisdictional parameters, exercising only the authority vested in them by the Constitution or legislative enactments. Therefore, the relevant constitutional provisions must be construed in a manner that ensures a balance among the three organs of the State. At the same time, such construction must affirm the independence of the judiciary as a foundational constitutional value.

10. Addressing the question of validity concerning the transfer of Judges to the Islamabad High Court is governed by Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as follows:

“200. Transfer of High Court Judges: (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts.

Explanation.-In this Article, “Judge” does not include a Chief Justice [but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196].

(2) Where a Judge is so transferred or is appointed to an office other than the principal seat of the High Court, he shall, during the period for which he serves as a judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine.

(3) If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court:

Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.

[Explanation.- In this Article, “High Court” includes a Bench of a High Court.]”

11. A plain reading of Article 200(1) establishes, that the President may transfer a Judge of a High Court to another High Court, provided two essential conditions are satisfied: first, the consent of the concerned Judge must be obtained; second, the President must consult the Chief Justice of Pakistan and the Chief Justices of both the transferring and receiving High Courts. These conditions serve as constitutional safeguards, preventing arbitrariness and securing institutional integrity. The record shows that necessary consents were obtained and meaningful consultations took place. However, the petitioners object. When a constitutional provision is unambiguous in its language and intent, the Court should adhere to its plain meaning and not extend its interpretation beyond the explicit terms, regardless of potential implications for individual cases. Article 200 provides a self-contained procedure and does not require further elaboration. Accordingly, I find no legal infirmity in the transfer of Judges from provincial high courts to the Islamabad High Court. These transfers fall squarely within the constitutional mandate and are supported by the applicable jurisprudence. In Sui Northern Gas Pipelines Ltd. v. S.K. Pvt. Ltd. (2025 SCMR 570), this Court reaffirmed that interpretative tools must not be used to override or dilute the express language of a statute or constitutional provision. Where clarity exists, adherence to the plain meaning is essential.

12. It is well settled that this Court possesses the power of judicial review to examine legislative and executive actions and to declare them unconstitutional if found ultra vires. This authority ensures adherence to the rule of law and serves as a vital check against misuse of power. Judicial review is properly invoked where a decision maker has acted beyond jurisdiction, misdirected itself in law, or improperly exercised authority. This principle was recently reaffirmed in Naseem Khan v. Government of Khyber Pakhtunkhwa (2024 SCMR 1341), where the Court observed that “executive or legislative action must be invalidated if it contravenes the law, is based on irrelevant considerations, or exceeds lawful competence”.

13. However, in the present case, Article 200 of the Constitution is clear in its language and intent. It does not contain any ambiguity that would require interpretative expansion or doctrinal elaboration. The prerequisites for a lawful transfer, namely the consent of the Judge concerned and the required consultations, have been fully satisfied. As these are the only conditions stipulated by the Constitution, the issuance of the transfer notifications cannot be deemed unconstitutional or unlawful. The Court is not at liberty to introduce new requirements where the Constitution itself has chosen not to impose them. In Sharaf Faridi v. Federation of Pakistan (PLD 1994 SC 105), this Court held:

“. . . . it will suffice to observe that I am inclined to hold that a transfer of High Court Judge to another High Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object and that the Question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.” It is, therefore, clear that the President cannot transfer a Judge of a High Court to another High Court except in public interest after consultation with Chief Justice of Pakistan”

14. Nevertheless, the transfers in question satisfy both constitutional prerequisites and the imperative of greater good, thereby passing judicial muster. Having fulfilled the criteria of national necessity, consequently, the same are constitutionally valid. A pertinent issue raised by the petitioners concerns the nature of judicial transfers under Article 200 of the Constitution. They argue that Article 200 provides only for temporary transfers of judges. This contention is based on a misreading of the provision. Article 200(3) explicitly allows the temporary increase in the number of judges by enabling the Chief Justice of one High Court to request the services of a judge from another High Court “for such period as may be necessary.” The temporal limitation in sub-Article (3) is deliberate and specific. In contrast, Article 200(1), which empowers the President to transfer a judge from one High Court to another, contains no such qualifying language. The omission is significant and must be given its full constitutional weight. If the framers had intended to impose a temporal limitation on transfers under Article 200(1), they would have done so expressly. The distinction in language between the two sub-articles confirms that transfers under Article 200(1) are not inherently temporary. Accordingly, the petitioners’ argument, equating the nature of all transfers with the mechanism in Article 200(3), cannot be sustained in light of the constitutional text and legislative intent.

15. A comparative perspective further reinforces this conclusion. Under Article 222 of the Constitution of India, the President may transfer a judge from one High Court to another after consultation with the Chief Justice of India. The consent of the judge is not required under the Indian framework. Nevertheless, Indian jurisprudence has firmly established that such transfers must be made only in the public interest and are subject to judicial review if found to be punitive or arbitrary. In Supreme Court Advocates-on-Record Association v. Union of India (1993 (4) SCC 441) and Madras Bar Association v. Union of India (AIR 2015 SC 1571), the Indian Supreme Court emphasised that the transfer of judges should promote national integration and the independence of the judiciary. In Pakistan, the constitutional arrangement under Article 200 provides even stronger safeguards. Unlike India, our Constitution mandates the consent of the judge being transferred and requires consultation with the Chief Justice of Pakistan and the Chief Justices of both the transferring and receiving High Courts. These procedural requirements serve to protect judicial independence and institutional integrity. The underlying principles are shared across both jurisdictions firstly, judicial transfers must be grounded in national necessity, carried out through meaningful consultation, and structured to uphold the impartiality and credibility of the judiciary.

16. The principle of constitutional public reason offers a useful framework for assessing the legitimacy of judicial transfers. Rooted in liberal constitutional theory, particularly as developed by John Rawls3 and later scholars such as Wojciech Sadurski, public reason requires that judicial decisions be justified by reasons that are accessible, principled, and acceptable to all reasonable citizens. In a pluralistic constitutional democracy, the legitimacy of coercive public decisions rests not on private morality or sectarian belief, but on shared constitutional values such as the rule of law, equality, federalism, and democratic governance. In this respect, courts are expected to articulate their reasoning in a manner that affirms the common interpretive commitments of the Constitution. The judicial transfers in question uphold the constitutional essence of federalism, fostering national unity and integrity by ensuring equitable representation from diverse provinces. By advancing the federal character of the judiciary, these decisions promote balanced regional representation, thereby serving the collective interests of the nation and reinforcing the fabric of Pakistani nationality. A judiciary that reflects regional and linguistic diversity is more likely to command public confidence and administer justice in a manner that is inclusive, impartial, and contextually informed. This approach aligns with the doctrine of constitutional public reason, which demands not only formal compliance with the Constitution, but also substantive justification in terms that are rooted in shared constitutional values.

17. Federalism, as envisaged by the Constitution of Pakistan, requires the meaningful inclusion and representation of all federating units across the institutions of the State. This foundational principle is affirmed in Article 1(2), which defines Pakistan as a federation composed of the Provinces and the Federal Capital Territory. The preamble to the Constitution further reinforces this vision by affirming democracy, equality, freedom, and social justice. Articles 192 and 175 provide for separate High Courts for each province and a distinct High Court for the Islamabad Capital Territory. Within this constitutional structure, the judiciary, like other state institutions, must reflect the pluralism of the federation. The transfer of judges from the Provincial High Courts to the Islamabad High Court ensures that the latter does not remain a purely territorial institution, but functions as a national forum. Given that the Islamabad High Court frequently adjudicates matters affecting the federation and its institutions, it is both logical and constitutionally appropriate that its composition reflects the diversity of the country. Such diversity enhances the institutional legitimacy of the Court, fosters inclusiveness, and strengthens public confidence in the impartiality of its decisions. Moreover, this practice aligns with the Constitution’s commitment to equality under Article 25 and the prohibition against discrimination in public service under Article 27, when read alongside the structural provisions governing the judiciary.

18. A judiciary composed of judges drawn from across Pakistan contributes not only to representational equity but also to intellectual depth. Regional perspectives enrich judicial deliberation and promote a broader understanding of the law in its social and cultural contexts. This is particularly significant in a multilingual and multi-ethnic society. The presence of judges in the capital’s high court with diverse linguistic and regional backgrounds facilitates a more inclusive adjudicatory process, enhances access to justice, and strengthens the federation as a whole owing to its jurisdiction to adjudicate upon disputes related to the federating units with federal government. Transfer of judges is thus not merely a matter of administrative convenience, but a constitutional mechanism to ensure that national courts reflect national diversity. Such transfers promote institutional cohesion and foster a unified judicial ethos that transcends regional boundaries. In this manner, federalism and judicial diversity reinforce each other within the constitutional framework.

20. The Islamabad High Court was established pursuant to Article 175 of the Constitution through the Islamabad High Court Act, 2010. As the court of the Federal Capital Territory, it holds parity in status with the Provincial High Courts. Its territorial jurisdiction under Article 199 extends to federal authorities operating within Islamabad, including those whose decisions may affect the rights of citizens across the country. While the High Court of a province may also hear matters involving the Federation, such jurisdiction is limited by territorial boundaries. In contrast, the Islamabad High Court, owing to the location of the federal government and its institutions within Islamabad, regularly exercises jurisdiction over matters of national relevance.

21. Given this unique positioning, it is essential that the composition of the Islamabad High Court reflects the diversity of the federation. Its status as a federal judicial forum requires more than geographic proximity; it demands inclusive representation from the various regions and linguistic groups of Pakistan. This approach enhances both the competence of the bench and the perception of impartiality. It ensures that the Court remains responsive to the legal and social realities of all federating units, rather than being confined to the perspectives of one region alone.

22. The legislative and constitutional framework reinforces this requirement of inclusive representation. Article 175(6) of the Constitution stipulates that, for initial appointments to the Islamabad High Court, the Judicial Commission shall include the Chief Justices of all four Provincial High Courts. This provision underscores the importance of provincial participation in forming the composition of the Islamabad High Court. Similarly, Section 3 of the Islamabad High Court Act, 2010 provides that the Court shall comprise judges “appointed from the provinces and other territories of Pakistan.” These provisions demonstrate a clear intent to ensure both procedural and substantive federal inclusion.

23. The participation of Provincial Chief Justices in the Judicial Commission (Article 175(6)) serves a procedural purpose by giving the provinces a voice in the appointment process. The requirement that judges be appointed from the provinces on merit serves a substantive purpose by ensuring that the composition of the Court reflects the national character of the judiciary. This dual mechanism promotes constitutional balance and fosters cohesion among the federating units. Any interpretation that dilutes either element would run contrary to the Constitution’s federal structure and the foundational principles of equality and inclusiveness.

24. The principle of representational diversity is not merely implied in the constitutional structure, but is expressly recognised in subordinate legislation. Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 states:

“In initiating and finalising the nominations for the appointment of Judges in the High Courts, the Members shall, subject to the prescribed criteria, ensure proper diversity in terms of gender, region and religion.”

This rule affirms that diversity in the composition of the superior judiciary is a constitutional and statutory objective. It reflects a broader understanding that judicial institutions must be inclusive and representative of the society they serve. The reference to regional diversity clearly envisages, the inclusion of judges from different provinces and territories, particularly in a court such as the Islamabad High Court, which functions at the federal level. In this context, the transfer of judges from the Provincial High Courts to the Islamabad High Court is not only constitutionally permissible but also consistent with the express statutory mandate to promote diversity.

25. The constitutional and statutory provisions discussed above reveal a coherent design aimed at embedding the spirit of federalism within the composition of the Islamabad High Court. The requirement of consent and consultation under Article 200, the representative design of the Judicial Commission under Article 175A (6), the language of Section 3 of the Islamabad High Court Act, 2010, and the mandate of Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024, all point to the same conclusion. The Islamabad High Court must be a federal representative court, inclusive in character and reflective of the nation’s pluralistic identity.

26. In the present case, the transfer of judges from the provinces of Punjab, Sindh and Balochistan to the Islamabad High Court is fully consistent with this constitutional vision. These transfers secure the participation of different federating units and affirm the commitment to judicial diversity. They also strengthen the legitimacy of the Islamabad High Court as a national forum. As held in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), judicial appointments and related processes must ensure equitable participation from all provinces to safeguard the independence and integrity of the judiciary. The same principle applies by analogy to judicial transfers. When exercised with procedural propriety and for valid reasons of public interest, transfers that promote federal integration are not only lawful but constitutionally commendable.

27. Article 194 of the Constitution provides that a Judge of a High Court must make an oath before entering office in the form prescribed by the Third Schedule. This requirement affirms the constitutional values of integrity, impartiality, and fidelity to the law. However, this provision must be read in conjunction with Articles 175A and 200. Article 175A outlines the procedure for initial appointments through the Judicial Commission and the Parliamentary Committee. Article 200, in contrast, permits the transfer of a Judge from one High Court to another with the consent of the judge and in consultation with the Chief Justice of Pakistan and the Chief Justices of both High Courts involved.

28. The textual and structural distinction between “appointment” and “transfer” is constitutionally significant. A judge transferred under Article 200 is not newly appointed but merely reassigned within the same constitutional office. The transfer does not interrupt tenure, affect jurisdictional authority, or require revalidation through oath. The constitutional oath taken under Article 194 continues to bind the judge throughout his or her service in the superior judiciary, irrespective of the High Court to which the judge is posted. This position is supported by precedent, including Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), where this Court held that the Constitution must be interpreted harmoniously, and that continuity in constitutional office must be preserved unless expressly disrupted by law.

29. It is therefore essential to distinguish between two constitutional categories: first, the initial appointment of a person as a High Court judge, which requires selection through the Judicial Commission and the taking of an oath under Article 194; and second, the transfer of a serving High Court judge to another High Court under Article 200, which is a lateral movement within the existing judicial cadre. The latter does not constitute a fresh appointment and does not entail a break in service. Consequently, no fresh oath is constitutionally required upon such a transfer.

30. To hold otherwise would be to treat the transfer as a reappointment, which is neither contemplated by the Constitution nor consistent with past judicial practice. The Third Schedule contains a single, uniform oath for all High Court judges, which confirms that the oath attaches to the office and not to a particular territorial jurisdiction. Requiring a fresh oath in such circumstances would create unnecessary procedural duplication and could imply an unintended hierarchy between High Courts. The constitutional scheme does not support such an interpretation.

31. This court observed that in regards to any transfer to the Federal High Court, it depicts lack of standardisation which may result in inconsistencies, perceptions of arbitrariness, and occasional future disputes over the order of precedence. It is now imperative that a consolidated and transparent seniority list be maintained for the said transfers. I therefore propose, as a matter of judicial policy and institutional reform, that for transfers to the Federal High Court, a Unified National Seniority List of all High Court judges be prepared, maintained, and annually notified by the Office of the President, in consultation with the Chief Justice of Pakistan, to operate only for transfers to the Islamabad High Court (Federal High Court) and to be applied subject to the diversity principle. This list should be updated promptly upon any event affecting a judge’s status, such as elevation, retirement, resignation, death, transfer, or removal. This mechanism would promote consistency, procedural fairness, and institutional trust within the superior judiciary.

32. Taking liberty from the scope preserved by our short order dated 19.06.2025, which states that “Petitions are disposed of in the following terms, subject to amplification in detail [judgment],” I take this opportunity in addition to above to address a concern raised during the proceedings by Mr Munir A. Malik, Senior Advocate Supreme Court. The learned counsel argued that permitting the transfer of a judge from one Provincial High Court to another could, in the absence of structural safeguards, compromise provincial autonomy and dilute the institutional integrity of the respective High Courts. While this contention does not directly arise for adjudication in the present case, and the petitions before us do not concern such a transfer, the matter warrants a limited response to place the current decision in proper constitutional perspective.

33. The present judgment is confined to the legality and constitutional propriety of transfers into the Islamabad High Court under Article 200 of the Constitution. As a judicial forum of the Federal Capital Territory, the Islamabad High Court occupies a unique constitutional position distinct from the Provincial High Courts. Its representative composition, which accommodates judges from various federating units, reflects a framework of cooperative federalism. This promotes, rather than diminishes, the relationship between the Federation and the Provinces. Where such transfers are made with the judge’s consent and in accordance with constitutional procedures, they serve to enhance the federal inclusivity and institutional strength of the Islamabad High Court.

34. This judgment does not extend to, nor should it be construed as determining or pre-empting, the legality or constitutional propriety of transfers from the Islamabad High Court to a Provincial High Court or between Provincial High Courts. Such scenarios, if they arise in the future, would require separate consideration based on the constitutional text, the principles of federalism, and the facts of the particular case. For the purposes of this judgment, the adjudicative scope is limited to transfers into the Islamabad High Court alone.

35.    In view of the foregoing discussion and analysis, I conclude as follows:

(i) The transfer of judges from Provincial High Courts to the Islamabad High Court under Article 200 of the Constitution is constitutionally valid. The requisite conditions, including the consent of the judges concerned and consultation with the Chief Justice of Pakistan and the Chief Justices of the relevant High Courts, have been duly satisfied. These transfers have been made in the public interest and are not tainted by any extraneous consideration.

(ii) Such transfers enhance the federal structure of the judiciary by ensuring regional and linguistic diversity within the Islamabad High Court. This diversity strengthens institutional competence and fosters public confidence in the judiciary’s impartiality and inclusiveness.

(iii) A transfer under Article 200 is not a fresh appointment. It constitutes a reassignment within the judicial cadre. Consequently, a judge who has already taken the constitutional oath under Article 194 is not required to take a fresh oath upon transfer to another High Court.

(iv) A Unified National Seniority List of all High Court judges be prepared, maintained, and annually notified by the Office of the President, in consultation with the Chief Justice of Pakistan, to operate only for transfers to the Islamabad High Court (Federal High Court) and to be applied subject to the diversity principle. This reform is essential to ensure transparency, equality, and consistency in judicial administration and in matters of elevation.

These are my detailed reasons, which I offer in concurrence with the majority opinion of this Court.

1. Holmes, J. in Towne v. Eisner (62 L Ed 372, 376)

2. Peter L Strauss, ‘A Softer Formalism’ (2011) 124 Harvard Law Review Forum 55

3. John Rawls, A Theory of Justice (Belknap Press of Harvard University Press 1971); John Rawls, Political Liberalism (Columbia University Press 1993); John Rawls, ‘The Idea of Public Reason Revisited’ (1997) 64 University of Chicago Law Review 765.