P L D 2026 Peshawar 113 (PLP)

DR. KHURSHID IQBAL, J.

1. Ms. Muniba Zahid, a 06 years old girl, filed this constitutional petition through her father Mr. Zahid-ur-Rahman. Herself a thalassemia patient by birth, she impugned section 3 of the Khyber Pakhtunkhwa Preventive Health Act, 2009 ("Act"). The impugned provision deals with premarital test reports of spouses for thalassemia and hepatitis C the Nikah Registrar shall obtain, keep and maintain for at least two years from the date the marriage is solemnized. Her grievance is that despite such a preventive measure, the impugned provision protects the legality of the marriage solemnized. Her contention is that the impugned provision contradicts the purpose of the Act, which is to register marriages of people who suffer with thalassemia and hepatitis C before solemnization of their nikah. She goes on to say that the Act also aims at enabling persons entering into marriage should know about such diseases and if they discover it, they should be careful that the same do not transmit to their children. She asserts that: firstly, while there are some 2024 governmental guidelines for the Union Councils to register marriages, the impugned provision "is creating hurdles in prevention of the two major diseases" (para. 8 of the petition). Secondly, her apprehension is that our inadequate healthcare system tends to increase the number of thalassemia and hepatitis C patients should patients of these diseases continue to enter into marriage bond. Thirdly, the treatment of these diseases involve lengthy and complex medical processes, particularly bone marrow and liver transplants, which are very costly. Fourthly, the Act needs to add more preventive health measures. Fifthly, the government should make registration of marriages of such patients. Key ground she set up in her petition is that the impugned provision militates against the very purpose of the Act, notably the prevention of the two diseases, as it allows such patients not only to marry, but also to register their marriages. On the strength of the above germane facts and grounds (on close reading both overlap), she called upon us to: a. Declare section 3(ii) as ultra vires, against the spirit of the Act and a tool for increasing thalassemia and hepatitis C patients. b. Direct the respondent-government to: i. Add details of the patients who can marry each other if they are diagnosed with the two diseases. ii. Frame mechanism for thalassemia, hepatitis C, TB, HIV Aids patients in conformity with international health standards. iii. Make treatment of thalassemia and hepatitis C, TB, HIV Aids and any other disease free of cost to all citizens across the province; and, iv. Grant any other appropriate relief in the given circumstances.

2. Amongst the governmental authorities arrayed as respondents, viz., the Chief Secretary, the Secretaries to the Government of the Khyber Pakhtunkhwa Health and Local Government and Rural Development Departments, the Secretary Provincial Assembly, and the NADRA, Islamabad (respondents Nos. 1-5), only the Health Department (respondent No. 2) submitted its para-wise comments. The respondent No. 2 raised a number of what we may call usual preliminary objections, such as, to mention a few locus standi, cause of action, mala fide, mis-and non-joinder of parties, and laches. On facts, its response solely confined to two policy interventions. The first one is "Integrated HIV, Hepatitis and Thalassemia Programme (IHHTCP) run through its implementation unit established in Peshawar's Hayatabad Medical Complex. It runs a Day Care Thalassemia Centre that provides blood transfusion and necessary medicines to registered thalassemia children. The other intervention is a planned Liver and Bone Marrow Transplant Institute in the Khyber Medical University to be established in two phases, but with no timeline for its realization. The respondent No. 2 also asserted that the petitioner is not an aggrieved person. On legislative side, the respondent No. 2, in its comments, stated that it (Health Department) and the Local Government Department (respondent No. 3) may make rules under the Act.

3. Arguments heard. The record perused.

4. We would like to start off with the text of the Act, which reads as under:

5. At the outset, it is imperative to delineate the outer contours of this Court's jurisdiction under Article 199 of the Constitution. The power of judicial review is not a tool for supervising legislative wisdom or engineering social reform through the judiciary. Rather, it serves as a mechanism to ensure fidelity to constitutional mandates and the legality of legislative and executive actions. Courts, while engaged in constitutional adjudication, do not sit in appeal over policy choices made by the legislature unless such choices manifestly violate fundamental rights or transgress constitutional limitations. In Reference No. 1 of 2020 [Supreme Court (SC): 2021]1, the Supreme Court emphasized that "the Constitution lays down limits of powers to be exercised by each organ of the State", and that the judiciary must act with restraint in domains "purely of political nature."

6. The petitioner's grievance, though sincere and arising from a position of personal vulnerability, presents intricate policy issues that are intertwined with scientific, ethical, religious, social and cultural considerations. The impugned provision mandates premarital testing for thalassemia and hepatitis C, but stipulates that the results of such tests shall not affect the solemnisation of the marriage. This provision is challenged on the ground that it defeats the preventive purpose of the Act. However, the legislative design, even if perceived as imperfect or under-inclusive, lies within the institutional domain of the legislature, not that of the judiciary. In Dr. Akhtar Hassan Khan (SC: 2012),2 it was observed: "courts lack the expertise to express any opinion on the soundness or otherwise of [policy] transactions" and must defer to executive wisdom in such matters.

7. While evaluating the impugned provision, it is necessary to distinguish between constitutional infirmity and legislative insufficiency. A statutory provision does not become unconstitutional merely because it falls short of achieving its policy objectives. Section 3(ii) by allowing marriages to proceed regardless of test results, seeks to balance the Act's preventive goals with constitutionally guaranteed rights to marry and found a family, which are embedded in Articles 4, 9, and 35 of the Constitution. We, however, cannot adjudge the wisdom or efficacy of the legislative design as pronounced in Asaf Fasihuddin (SC: 2014)3 that "the duty of the Court is to confine itself to the question of legality," not to the wisdom or efficacy of legislative design.

8. On balance, however, the petitioner has rightly identified a structural inconsistency in the Act. While premarital testing is mandatory, there are no legal consequences if the results indicate a genetic disorder. This gap risks rendering the legislative measure a procedural formality without any preventive substance. The inconsistency between the stated objective of the Act and its operative effect deserves legislative attention, even if it does not warrant judicial invalidation. Courts may review legislation for constitutional consistency but not for its empirical effectiveness or policy merits (Watan Party, SC: 2006).4

9. Our higher courts have consistently exercised restraint in matters involving legislative policy, particularly in the domain of public health. In Elahi Cotton (SC: 1997),5 for instance, the Supreme Court ruled that owing to their technical nature, economic and regulatory laws enjoy what is termed as "greater latitude." Power Construction Corporation of China Ltd (SC: 2017)6 reaffirmed that commercial or infrastructural decisions rest primarily with the executive, and are not to be re-evaluated judicially unless patently unlawful.

10. The doctrine of judicial restraint is visible in comparative constitutional jurisprudence. Prof. Fuller argues that policy related issues are polycentric problems the resolution of which on one variable tends to have an impact on several interdependent factors.7 Adjudication, suited for binary legal determinations, lacks the procedural elasticity and deliberative consensus required for policymaking. An overreliance on courts for resolving such matters risks undermining democratic institutions and the deliberative capacity of representative government.

11. The echo of Prof. Fuller's view could be heard in the Indian case of Balco Employees Union (ISC: 2002)8 in which the Supreme Court held that economic policy and legislative design lies outside the remit of judicial competence unless they are arbitrary or against the Constitution. Indian Ex-Servicemen Movement (ISC: 2022)9 is a latest precedent in which the Supreme Court deferred the matter before it to the policy judgment of the executive as it involved social welfare and resource allocation. Likewise, in International Trade Administration Commission (SACC: 2010),10 the South African Constitutional Court refrained from substituting its views for those of policy-makers, except in cases of irrationality or constitutional breach.

12. That said, the importance of a coherent and effective preventive health regime cannot be overstated. Thalassemia and similar genetic disorders impose significant medical, financial, and emotional burdens on affected families and also place strain on public healthcare infrastructure in broader context of public policy. Other provinces in Pakistan, such as, Punjab, Sindh and Balochistan, have adopted more comprehensive legislative frameworks, which include components like mandatory genetic counselling, institutional oversight, and integration with civil registration systems.11 The Punjab Thalassemia Prevention Act, 2025, notably introduces informed consent mechanisms and creates coordination with NADRA to track and reduce disease transmission.

13. It is important to emphasize that hereditary blood disorders, particularly thalassemia and other inherited conditions such as sickle cell disease12, continue to pose a serious global health challenge. These disorders are passed down through families technically referred to as autosomal recessive inheritance13 and when both prospective spouses are carriers, the risk of having an affected child is significantly high. It is estimated that over 300,000 children are born annually with serious haemoglobin disorders worldwide, with the highest prevalence reported in the Middle East, South Asia, and parts of the Mediterranean. In Pakistan, as one commentator has noted, the inherited rate "is 5-7% of gene carrier frequency, so, the general population has roughly 9.8 million carriers pool."14 In the KP, while the exact number of thalassemia could not be traced, it is noted that each year 5,000 new cases are reported across the province with consanguineous marriage as the major contributing factor.15 The resulting health consequences ranging from chronic anaemia to multiple organ complications often lead to lifelong dependence on transfusions and in some cases, bone marrow transplant, an expensive and rarely accessible treatment in most developing countries.

14. In view of this global public health burden, several Muslim countries have legislated and institutionalized premarital screening programs as a primary preventive intervention. Through a Royal Decree of 2003, the Kingdom of Saudi Arabia introduced a mandatory premarital screening programme in 2004, initially focusing on thalassemia and sickle cell disease.16 Designated health centres were established across the Kingdom, equipped with the requisite medical supplies, trained personnel, and laboratory services. At present, more than hundred premarital health-screening centres are operational, all of which report data to the Ministry of Health's Department of Genetic Diseases. The program offers free testing and counselling for couples, intending to register their marriage, and has demonstrated measurable public health impact voluntary cancellation of high-risk marriages rose from 9% in 2004 to over 50% by 2009.17 Turkey has adopted a comparably rigorous approach under Article 136 of its Civil Code, read with Articles 123 and 124 of the General Health Law No. 1593.18 It mandates that couples undergo testing for a defined panel of conditions prior to marriage, including blood type, hepatitis B (HBsAg), hepatitis C (Anti-HCV), syphilis (VDRL), HIV (1-2), and thalassemia through haemoglobin electrophoresis. These tests serve a dual purpose: to protect individual health and to ensure that hereditary or communicable diseases are detected and disclosed before matrimonial bonds are solemnized.

15. Similarly, Indonesia has introduced regulatory measures through the Joint Instruction of the Ministry of Religious Affairs and the Ministry of Health No. 2 of 1989, which mandates tetanus toxoid immunization for prospective brides and grooms, and the Regulation of the Minister of Health No. 97 of 2014, which reinforces premarital screening as an essential component of reproductive and pre-pregnancy health services.19 Similar programs and legislations have also been adopted in Iran since 1997,20 and UAE since 2005,21 Bahrain in 2004,22 Egypt in 2008,23 Kuwait in 2008,24 Palestine in 2000,25 Qatar in 2006,26 and Tunisia in 1964,27 where legal frameworks now require premarital testing as part of public health policy. These policies aim not only to detect conditions such as HIV, syphilis, and hepatitis but also to reduce maternal and neonatal morbidity linked to undiagnosed diseases and nutritional deficiencies. In the absence of screening, individuals often lack the information needed to assess risks posed by hereditary or infectious conditions, which may ultimately affect future generations. The collective legislative direction of these jurisdictions reflects a broader recognition that premarital health screening is indispensable to any serious public health strategy aimed at preventing intergenerational transmission of diseases. The contrast with impugned provision (section 3(ii) of the Act) is striking: it mandates premarital testing but renders the result inconsequential to the legality of the marriage, thereby neutralizing the core preventive purpose. Though the legislative objective may have been well-intentioned, the absence of a coherent mechanism to guide action on the test results renders the provision ineffectual. It is for the legislature to evaluate whether the current framework meaningfully advances the public health objectives it purports to serve.

16. Additionally, it is also essential to note that, both globally and particularly across Muslim countries, premarital care is a legally recognized process that emphasizes the promotion of health and well-being of a woman and her husband prior to conception. It is widely regarded as a primary preventive strategy for couples intending to start a family, and serves as a crucial step toward safeguarding public health and ensuring a fulfilling, healthy life for future generations. Premarital care typically includes premarital health counselling and a general medical examination. These examinations are especially significant in preventing the transmission of diseases, as they help identify and manage behavioural, medical, and other health risk factors known to adversely impact pregnancy outcomes. The process is also designed to educate couples and provide them with accurate, unbiased information necessary for informed decision-making. Notably, many Middle Eastern countries have adopted premarital screening programs under broader national frameworks aimed at fostering "happy marriage" initiatives. Such programs not only reduce the risk of hereditary and communicable diseases but have also been shown to strengthen marital relationships and improve public health outcomes.

17. These international models are informed by the doctrine of proportionality, a recognised principle of constitutional law in common law jurisdictions. Where personal autonomy may be restricted, such as through regulation of marriage based on medical conditions, the State must demonstrate a compelling interest and use the least restrictive means available. Section 3(ii) represents a legislative compromise, aiming to promote health awareness without infringing upon fundamental rights or religious prerogatives.

18. However, such a compromise should not become static. The principle of progressive realisation of health rights, drawn from instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), obliges the State to continuously evolve its legal and institutional arrangements in response to emerging health threats and societal needs. Accordingly, the provincial legislature is urged to consider augmenting the statutory scheme by including qualified genetic counselling, ensuring confidentiality of medical data, establishing linkage with NADRA, and subsidising access to both preventive and curative treatments.

19. The rights-based approach to public health, when appropriately contextualised, respects individual dignity while empowering informed choices. The petitioner's case highlights the lived consequences of inadequate policy and institutional support. Her struggle, as a child living with thalassemia, is emblematic of the suffering that could be mitigated through a better-designed preventive framework.

20. While it is not the function of this Court to legislate, it is incumbent upon it, as the guardian of constitutional values, to draw attention to legislative deficiencies that impair the fulfilment of fundamental rights. It is therefore recommended that the government form a multi-stakeholder task force including medical professionals, legal experts, patient advocacy groups, religious scholars, and civil society actors to comprehensively review the Act and propose amendments aligned with best practices and ethical norms.

21. Such a task force should also consider the implications of rapidly advancing biomedical technologies such as carrier screening, prenatal diagnostics, and emerging therapies. These tools, if ethically regulated and equitably accessible, have the potential to transform thalassemia prevention from a reactive to a proactive paradigm grounded in scientific rationality and social justice.

22. Although the relief to declare section 3(11) as ultra vires is declined, this Court notes that the existing framework requires substantial reform. These deficiencies should be addressed through participatory legislative processes and evidence-based policymaking. The objective must be to foster informed consent and public responsibility, not to impose coercive mandates on individuals.

23. It must also be recognised that hereditary blood disorders are a significant transnational public health issue. The World Health Organization estimates that over 300,000 children are born each year with severe haemoglobin disorders, with South Asia bearing a disproportionately high burden. In South Asia, with a high inherited rate, and 5,000 annual addition of new cases in the KP, requires on our part, as a nation, to understand that the societal costs of these diseases, particularly for socioeconomically disadvantaged families, necessitate a systemic and compassionate response from the State.

24. In conclusion, while the petition is not legally maintainable, it has drawn attention to critical policy gaps that merit urgent redress. The petitioner has performed a valuable public service by initiating this dialogue. The writ petition is, therefore, disposed of in these terms. There shall be no order as to costs. UN/218/P Order accordingly. 1 Reference No. 01/2020 (PLD 2021 SC 825). 2 Dr. Akhtar Hassan Khan v. Federation of Pakistan (2012 SCMR 455). 3 Asaf Fasihuddin Khan Vardag v. Government of Pakistan (2014 SCMR 676). 4 Watan Party v. Federation of Pakistan (PLD 2006 SC 697). 5 Messrs Elahi Cotton Mills Ltd v. Federation of Pakistan (PLD 1997 SC 582). 6 Power Construction Corporation of China Ltd v. WAPDA (PLD 2017 SC 83). 7 Lon L. Fuller, 'The Forms and Limits of Adjudication', 92 Harvard Law Review (1978) 353. 8 Balco Employees Union v. Union of India (AIR 2002 SC 350). 9 Indian Ex-Servicemen Movement v. Union of India ((2022) 7 SCC 323). 10 International Trade Administration Commission v. SCAW South Africa (Pty) Ltd [2010] ZACC 6. 11 The Sindh Prevention and Control of Thalassemia Ordinance, 2013; the Balochistan Prevention and Control of Thalassemia Act, 2015; and the Punjab Thalassemia Prevention Act, 2025. The main texts of the Sindh and Balochistan laws are one and the same. 12 Sickle cell disease also called sickle cell anaemia, is a group of inherited disorders that affects haemoglobin, the major protein that carries oxygen in red blood cells. Quoted from the US National Health, Lung and Blood Institute. https://www.nhlbLnih.gov/health/sickle-cell-disease, Accessed 06.08.2025. 13 It "is a way genetic trait or conditions are passed down through families" Quoted from US National Health, Lung & Blood Institute web page above. 14 Aisha Khalid, et al, "Thalassemia: Current Situation in Pakistan," LGU J. Life Sci. Review Vol. 4, Issue 4, (Oct-Dec. 2020), p. 309. 15 Al-Khidmat Foundation Pakistan report on World Thalassemia Day awareness campaign on 08 May 2025. http://alkhidmat.org/blog/awareness-action-urged-on-thalassemia-day-in-kp accessed 06.08.2025. 16 Kingdom of Saudi Arabia Royal decree (4/1/1423; 81/3/2002 AD.). 17 ES AlSaeed, et al, "Distribution of hemoglobinopathy disorders in Saudi Arabia based on data from the premarital screening and genetic counseling program, 2011-2015," J Epidemiol Glob Health (2017), pp. 41-47. 18 Turkish Civil Code, 2001 and Turkish General Health Law No. 1593 of 1930. https://www.labistanbuLcom.tr/en/pre-marriage-tests/ accessed 06.08.2025. 19 Alvionita Julianti and Azwani Lubis, "The Impact of Implementing Premarital Health Test Certificate Requirements on Unregistered Marriage Practices," Al-Ishlah: Jurnal A Ilmiah Hukum 27, No. 2 (2024), pp. 268-287. https://dolorg/10.56087/aijih.v27i2.485 accessed 06.08.2025. 20 M Karimi, et al, "Premarital screening for p-thalassaemia in Southern Iran: options for improving the programme," J Med Screen 14, No. 2 (2007), pp. 62-66. 21 United Arab Emirates Federal Law No. (28) of 2005 regarding personal status (Article 27). https://uaelegislation.gov.ae/en/legislations/1033/download accessed 06.08.2025. 22 Law No. (11) of 2004 with respect to Premarital Screening. https://www.mola.gov.bh/MediaManager/Media/Documents/Laws/L1104.pdf accessed 06.08.2025. 23 Government of Egypt, Minister of Health and Population Decree No. 338/2008 and Decree of the Minister of Justice No. 6927/2008, Amended Art. 31 bis of the Egyptian Civil Status Law No. 143 of 1994. https://www.presidency.eg/en/%D8%A7%D9%84%D8%Bl%D8%A6%D8%A7%D8%B3%D8%A 9/initiatives-27022023/ accessed 06.08.2025. 24 Kuwait Law No. 31 of 2008, extended to all marriage contracts regardless of nationality w.e.f 01.04.2025 through Ministerial Decision of 23/2025. https://www.lexismiddleeast.com/law/Kuwait/MinisterialDecision_23_2025 accessed 06.08.2025. 25 Palestinian Public Health Law of 2000 (amended in 2004). See also Chokri Kooli and Riadh Abadli, "The Relevance and Impact of Laws Regulating Premarital Screenings in the Muslim Arab Countries" Journal of Sharia and Islamic Studies 35, No. 120, (2018), pp. 281-332. Available at SSRN: https://ssrn.com/abstract=3726601 accessed 06.08.2025. 26 Qatar Family Law No. 22 of 2006, Part 2, Chapter 3, Article 18. http:www.alrneezan.s a LawPa e.as a x?id=2558&lan ua!e=en accessed 06.08.2025. 27 Tunisian Law No. 46 of 1964 http: // campaignforiustice. musawah. org / repository/tunisia/ accessed 06.08.2025.