Fundamental Rights

Pakistan's judicial system, though empowered to rectify individual injustices through acquittals, remains institutionally ill-equipped to address profound harms, irreversible trauma, reputational erosion, financial ruin, and unjust deprivation of liberty, inflicted on accused individuals during protracted trials, often precipitated by flawed investigations

Such systemic failures stem from entrenched deficiencies, including absence of statutory mechanisms to ensure investigational transparency and lack of professional accountability within law enforcement, which collectively corrode public trust and undermine the integrity of the justice framework

Addressing such gaps transcends procedural reform; it constitutes a Constitutional obligation under Articles 4, 9, 10-A & 14 of the Constitution, which enshrine due process, fair trial, and preservation of human dignity

Justice system's legitimacy hinges not on punitive severity but on equitable, rigorous processes that safeguard accused individuals' rights against institutional expediency, thereby reinforcing critical balance between state authority and individual liberty.

Petitioner's grievance, founded on personal hardship and emotional impact of being unable to visit her sons' graves, did not amount to infringement of any constitutional right

Petitioner and the deceased adhered to the Hanafi school, and the circumstances pleaded did not fall within the recognized exceptions in Hanafi jurisprudence that permitted relocation of a grave, and the scholarly opinions to that effect, though not binding, were treated as persuasive by the High Court.

Salary is not merely a form of compensation; it constitutes the very lifeline that sustains a household, feeds families, educates children, and preserves human dignity

Right to livelihood is inseparable from the right to dignity guaranteed under the Constitution

When the State fails to pay salary or remuneration for services rendered in good faith, it does not merely commit a breach of contract; it undermines the social contract itself, thus, it is the constitutional and moral duty of every public institution to ensure that no public servant is compelled to work without due payment, and that justice is not delayed where the bread and dignity of a citizen are at stake.

Briefly, the petitioners were aggrieved of inaction of the public functionaries to take action against the repeated newspaper advertisements across Pakistan restricting recruitment for sweepers and sanitary workers to persons of a particular religion, predominantly Christians

Despite a formal request to the Ministry of Human Rights seeking issuance of directions to stop such advertisements and to ensure future recruitment notices were religion-neutral, no response was received, prompting the filing of the writ petition

Held: Phrases such as "the candidate must be Christian", "preference shall be given to Christians" and "only candidates from the Christian community may apply" were inherently discriminatory and offended the constitutional guarantees enshrined in Arts.36 and 25 of the Constitution, which ensured equality, protection of minorities and non-discrimination

This discriminatory practice not only violated the fundamental rights of the minorities but it also reinforced negative stereotypes and prejudices against them, which could lead not only to further marginalization and discrimination but also affected their dignity

The advertisement of public posts on the basis of religion was degrading since it unfairly singled out a segment of society solely on the basis of religious identity and violated human dignity

Neither the Constitution nor any law permitted any authority, institution or individual to predicate appointments to the posts of sanitary workers or sweepers on religious affiliation

Such practice infringed upon fundamental rights and resulted in humiliation, exclusion and deprivation within the targeted community, contrary to the Constitution's commitment to dignity and equality

Consequently, any appointment process grounded in religious identity stood condemned and could not be upheld

All the respondents were directed to issue appropriate directions, notifications or office orders to their subordinate departments and organizations to ensure that in the future, no recruitment advertisement or appointment policy for sweepers or sanitary workers would be based on religion, ethnicity, community and that no segment of society is singled out for such posts on religious grounds

Constitutional petition was allowed, in circumstances.

Whether military status of military judges violates such constitutional guarantee of person tried by a court martial.

Fundamental rights guaranteed by the Constitution, an organic instrument, are not capable of precise or permanent definition delineating their meaning and scope for all times to come

With the passage of time, changes occur in the political, social and economic conditions of the society, which requires re-evaluation of their meaning and scope in consonance with the changed conditions

Therefore, keeping in view the prevailing socioeconomic and politico-cultural values and ideals of the society, the courts construe the fundamental rights guaranteed by the Constitution with a progressive, liberal and dynamic approach

This approach ensures that the fundamental rights remain a vibrant and effective guarantee of citizens' rights, liberties and freedoms, adapting to the evolving needs and aspirations of society

With this approach, the courts expound the fundamental rights to give them life and substance that are true to the reality of the changing times.

Such guidelines when issued within the bounds of statutory authority and aimed at maintaining public order or verifying claims, do not infringe constitutional rights.

Principle of strict interpretation is grounded in the understanding that any law, which imposes restrictions on fundamental rights, must be clear, precise, and unambiguous

Fundamental rights are paramount to ordinary state-made laws and cannot be curtailed without clear legislative intent and such laws are required to be scrutinized rigorously to ensure they do not violate constitutional guarantees.

High Court being custodian of the fundamental rights of the citizens cannot shut its eyes when it reaches to a conclusion that action on the part of a statutory body or organization resulted in infringement of fundamental rights of a person

Though the appointment process is an internal mechanism of the department wherein High Court sparingly interferes but would not hesitate to step in when a right to job otherwise available under the law was declined in a slipshod manner.

Objective criterion in such regard is to see whether the claimed right is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right

Right is an integral part of a named fundamental right which gives life and substance to the named fundamental right.

Constitution is founded on the theory of trichotomy of powers between three limbs/organs of the State namely; the Legislature, the Executive and the Judiciary

Function of the Legislature is to make law, the Executive is to execute and the Judiciary is to interpret law

State has been prohibited under Art. 8(2) of the Constitution from making any law that takes away or abridges rights of citizens

Any law to the extent of violation of fundamental rights is void

Constitution expressly confers upon Courts, powers of judicial review of administrative action of the executive as well as laws passed by Parliament/Legislature to see as to whether the same is in conformity with the Constitution.

Constitutional democracy enshrines fundamental rights which are conferred upon people and the most cherished of those rights is the right to freedom of speech and expression

There cannot be abridgement of speech unless it falls within the strict confines of exceptions to Art. 19 of the Constitution

Doctrine of trust and role of Government as a trustee, the structure of constitutional democracy and the new branch of IPDs (Institutions for Protecting Constitutional Democracy) conjointly bolster greater need for free speech

This is of the essence of rule of law and hews more closely to constitutionalism

Provision of S. 124A, P.P.C., is in significant tension with Constitutionalism and constitutional democracy

Freedom of speech cannot be defined as freedom to say what is welcome to an authority, which is precisely what S. 124A, P.P.C., seeks to achieve

Power to restrict free speech and freedom of press is circumscribed and hedged in by the fields of legislation specifically mentioned in Art. 19 of the Constitution

Any law which seeks to suppress freedom of speech and press and does not fall strictly within one of the exceptions in Art. 19 of the Constitution, falls afoul of it and is ultra vires to that extent

High Court in exercise of constitutional jurisdiction declared provision of S. 124A, P.P.C., unconstitutional as it offended fundamental rights enshrined in Arts. 19 & 19A of the Constitution

High Court further declared that the provision of S. 124A of P.P.C. void as whole, as it was inconsistent with and in derogation of fundamental rights

Constitutional petition was allowed, in circumstances.

When fundamental right is abridged through statutory law, utmost care and caution should be exercised to evaluate the information/material against the delinquents

Such action must not be an exercise in vacuum or routinely venture based on whims, wishes or conjectures of the authority to move blindly and run over the guaranteed fundamental rights

After imposition of such sanctions, person becomes handicapped to run his life honourably and smoothly

For subsistence and spending his life, person becomes dependent upon the discretion of the Federal Government, and he is to take refuge in that respect under S.11-OO of the Act

In addition, the person enlisted in Fourth Schedule is required to execute a bond for certain restriction upon his freedom of movement, right to reside at a particular place, deprivation from entertainment and amusement, curtailment of liberty including check and probe on their assets or assets of his family members including parents, being under constant monitoring or surveillance; so much so he can be arrested and detained under S.11-EEE of Anti-Terrorism Act, 1997, as and when the government desires

Section 11-EE of the Act, 1997, though enumerated different situations attracting liability for the persons to be enlisted in Fourth Schedule but use of words "reasonable grounds" in the section required evaluating the material/information within that scope

Reasonable grounds flow from the information available or collected against the delinquents and such information was usually derived from the links propagated through many types of material including SMS/voice messages, messages on WhatsApp or other social media accounts, pamphlets/handouts, posters, photographs, painting, caricatures, books/literature, newspapers, audio/video CDs, electronic and digital material, wall chalking, banners/pena flex, demonstrations in rallies, material on Facebook, Twitter or any other social media account, communication on telephone/mobile (CDR), speeches in public meetings, radio and T.V. shows, surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution etc.

Authority before enlisting any person in Fourth Schedule must ensure that information be available in more than one forms as highlighted above so as to make it credible and be more than a suspicion

Court asked specific questions from the Law Officer whether he had any record with him which could establish links of the present appellant with any proscribed organization or he could show the Court any material like visuals or audio by which it could be seen or heard that appellant was engaged in any objectionable activities but no such material could be produced or shown to the Court

When asked to explain the reasons for placing appellant's name in the Fourth Schedule of the Act, 1997, Law Officer contended that appellant remained involved in one criminal case

Involvement in any criminal case is hardly a ground to deprive any citizen of his fundamental right of life and liberty

Record once at the credit of an accused can not be used to rotate him in such allegations again without any fresh material in that respect

Appeal was allowed, in circumstances.

It is a sine qua non for the development of any State in addition to ensuring equality of opportunity for its citizens and their right to live with dignity

In our country, such right has been included amongst the Fundamental Rights contained in Chapter 1 of Part II of the Constitution through the Eighteenth Constitutional Amendment

Fundamental Rights occupy a place of pride in the scheme of our Constitution and the same indeed are conscience of the Constitution

By insertion of Art. 25-A in the Constitution, an obligation has been cast upon the State to ensure provision of free and compulsory education to all children between the age of 5 to 16 years in such manner as may be determined by law

Subject of education has been devolved to the provinces for legislation and decisions regarding curriculum, syllabus, planning, policy and standard of education

Accordingly, the Punjab Free and Compulsory Education Act, 2014 was enacted.

Notification No.149-2017/186/Admin-I dated 22-06-2017 and Notification No. SOFT (EXT)XII-2/2009 dated 15-09-2009, issued by Government of Punjab

Fundamental rights

Enforcement

Mal governance

Natural disaster

Loss of human lives

Provincial Disaster Management Authority (PDMA), role of

Petitioners approached High Court to initiate actions against officials responsible for loss of lives of 22-tourists, who got stuck in a blizzard in Murree after remaining stranded in their vehicles for whole night

Validity

Legislative object of National Disaster Management Act, 2010, could best be achieved through proper coordination of the offices mentioned in schedule to Notification No.149-2017/186/Admin-I dated 22-06-2017, issued by Government of Punjab

Record showed that though role of PDMA in disaster management was nothing less than a protagonist but it badly failed to cope with the situation

Metrological Department issued forecast of heavy snowfall and not about the blizzard

Even forecast of heavy snowfall was not properly transmitted to concerned Departments either by Metrological Department or by PDMA

Event which led to loss of 22-lives did not give rise to any criminal aspect, thus registration of case was not warranted

Government of Punjab could not be absolved from its responsibility and mishandling of affairs in the region by various departments which could be described as one of the causes behind the tragedy

Provincial Government shall enhance compensation amount to the families of every victim

Provincial Disarter Management Authority should devise proper plan for achieving object of National Disaster Management Act, 2010, by making plans of disaster management in areas vulnerable to calamities, and organize specialized training programs for officials, voluntary rescue workers and members of communities

Representatives of Metrological Department should be included in the structure of District Disaster Management Authority

United Nations General Assembly through Resolution 70/175, dated 17-12-2015 adopted United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)

Indefinite solitary confinement and prolonged solitary confinement under R. 43 of United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) is prohibited

Provisions of United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) are consistent with fundamental rights enshrined in Chapter-1 of the Constitution, therefore, deference and respect has to be shown in Pakistan to such Rules.

Provisions of the Electoral Act, 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in section 19 of the New Zealand Bill of Rights Act, 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of section 5 of the New Zealand Bill of Rights Act.

Duty of care owed by the State and its functionaries towards incarcerated prisoners explained.

Distinction stated.

Independence of judiciary and access to justice fall within the ambit of Fundamental Rights.

In a broader sense rights can be categorized in three kinds: Fundamental rights are those rights which are conferred upon a citizen by the Constitution; Legal rights are those which are conferred upon a person by any law or statute other than the Constitution; Vested rights are those rights which are accrued to a person due to an act or omission, action or inaction of another person.

Not every grievance of a party can be enforced through Constitutional petition against a private individual but it can only be exercised when enforcement of fundamental right is concerned.

Administrative instructions or administrative guidelines or even Standard Operating Procedures without requisite legal backing cannot be allowed to make inroads in and dilute fundamental rights as contained in the Constitution

Administrative instructions are neither laws nor rules and these can only be subservient to laws and rules and, therefore, cannot be allowed to dilute the allowance and freedom afforded by the Constitution.

Clear distinction has been made by the Constitution between fundamental rights that are absolute and others which are not

Non-absolute are those fundamental rights which are "subject to law" or "subject to reasonable restrictions imposed by law"

No fundamental right can be surrendered or waived and limitations, if any, can be imposed only in public interest and in accordance with law.

Petitioner sought betterment of legislation on child citizens' fundamental rights, including right to life and dignity, right to proper growth and development through strict enforcement of their right to nutritious food and education

Held, that the Provincial Food and School Education Departments had the mandate under Second Schedule of the Punjab Government Rules of Business, 2011 to make proper policy/legislation on the issues raised by the petitioner

High Court disposed of the Constitutional petition with various directions to the respondents, including that they would (i) make proper legislation on the child citizens' fundamental rights in light of the relevant provisions of the (Federal) Rules of Business, 1973 and the Punjab Government Rules of Business, 2011, and if proper legislation already holds the field then ensure its enforcement; (ii) formulate a national policy on such rights under the Rules, after carefully going through the respective laws, by conducting surveys in the relevant fields and also taking steps for addressing the issue of malnourishment/ malnutrition in the child citizens; and then (iii) ensure implementation of the said policy in its true sense.

For enforcement of fundamental right against a Limited Company owned and managed by Government and engaged in discharge of any public duty, Constitutional petition can be maintained and High Court can exercise its jurisdiction in terms of Art. 199 of the Constitution.

Access to justice through an independent judiciary is a fundamental right of people of Gilgit-Baltistan.

Independence of judiciary is one of the fundamental features of the Constitution of Pakistan which basic feature is superior to even fundamental rights guaranteed under the Constitution and the vires of the Constitution (including fundamental rights) can be examined by the Supreme Court on salient features theory.

On cancellation or blockage of CNIC the person loses every fundamental right i.e. education, health, employment, etcetera.

Provisions conferring those rights have to be harmoniously and purposively interpreted in order to give full measure of the freedoms to the people to which they are entitled.

Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people, they must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice

Such vibrance and vitality is the hall mark of a living Constitution in a democracy.

Fundamental rights call for a generous interpretation avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

Fundamental rights in a living Constitution are to be liberally interpreted so that they can continue to embolden freedom, equality, tolerance and social justice.

Such can be claimed that even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective.

Positive rights are those that provided something to people and require action to ensure provision of the right (for example the right to education)

Negative rights are free from interference and thus limit the ability of other people/governments from taking action toward/against the right holder.

Fundamental rights are those rights which are recognized, provided and pledged by the State to its citizens regardless of their colour or creed and beliefs or believes

However, each fundamental right is attached to a corresponding responsibility i.e. the right to be recognized equally before the law implies the responsibility to abide by the laws.

Principles of natural justice are understood to include right of a citizen to a hearing and right to be heard by an impartial Tribunal

Independence of judiciary is recognized as a salient feature of the Constitution and right to access to justice includes right to have one's civil entitlements and obligations adjudicated by a Tribunal or Court that is a neutral arbiter of law

Importance of such rights was formally recognized when Art. 10-A of the Constitution was introduced in the Constitution by 18th Constitutional Amendment to afford a textual basis to such rights.

Despite passing away of a person, rights/liabilities could not vanish and pending disputes were always liable to be decided in accordance with law, especially, when legal heirs were present having interest in the matter to face the consequences pro or contra.

Activities may fall outside the scope of such right where the method of the activity itself-such as violence-or the location of that activity was not consonant with protection offered by Fundamental rights.

When a democratic election took place, freedom of expression protected the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day; that was at the core of political expression

Right to disseminate and receive information connected with elections was recognized as integral to the democratic principles underlying freedom of expression, and as a result, attracted robust protection

Stable election period was crucial to electoral fairness and meaningful political discourse

As such, state interference with individual and collective political expression in the context of an election struck at the heart of the democratic values that freedom of expression sought to protect, including participation in social and political decision-making.

Where a claimant could demonstrate that, by denying access to a statutory platform, the government had substantially interfered with freedom of expression or acted with the purpose of doing so, the claim may proceed

Substantial interference with freedom of expression occurred where lack of access to a statutory platform had the effect of radically frustrating expression to such an extent that meaningful expression was effectively precluded

While meaningful expression need not be rendered absolutely impossible, effective preclusion represented an exceedingly high bar that would be met only in extreme and rare cases.

Distinction between those positive and negative dimensions remained important when considering the nature of the obligation that the claim sought to impose upon the state: a right's positive dimensions required government to act in certain ways, whereas its negative dimensions required government to refrain from acting in other ways.

Purposive interpretation of Fundamental rights must begin with, and be rooted in, the text and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts.

Of the fundamental rights guaranteed by Arts. 9 to 28 of the Constitution, almost 16 Articles belong to Criminal Procedure

Such Articles may be described as a mini-code of criminal procedure.

Principle of Laches is not one of the universal application to be applied in every case without examining dictates of equity, justice, fair-play and fact and circumstances of the case

Laches cannot be treated at par with law of limitation which prescribe period for enforcing a right or liability and requires Courts to dismiss a lis if not filed within such prescribed statutory period

No Court should dismiss a lis on the ground of laches if action assailed before it defeats the ends of justice and perpetuates injustice.

Petitioners were retired employees of Karachi Development Authority who were aggrieved of withholding of their pensionary benefits by the Authority

Validity

Pension is an unalienable fundamental right guaranteed by the Constitution to a person who dedicates his entire life, expertise, experience, energy and loyalty to his employer with the hope that after retirement when he may no longer be able to earn any other livelihood in his old age, will receive a monthly pension as a regular income, without recourse to employer and / or legal proceedings, to cater to its own needs and those of his family

Karachi Development Authority failed to discharge its statutory obligation and had deprived about 1000 retired employees of such precious and unalienable fundamental right

High Court appointed Court official as Commissioner to ensure compliance to orders of High Court in letter and spirit within stipulated time.

Section 11(b) of the Charter provided that any person charged with an offence had the right to be tried within a reasonable time

Said provision reflected and reinforced the notion that timely justice was one of the hallmarks of a free and democratic society

Section 11(b) protected both an accused's interests and society's interests

Individual dimension of S. 11(b) protected an accused person's interests in liberty, security of the person, and a fair trial

Societal dimension of S. 11(b) recognized, among other things, that timely trials were beneficial to victims and witnesses, as well as accused persons, and they served to instill public confidence in the administration of justice.

Right to be tried within reasonable time [section 11(b) of Canadian Charter of Rights and Freedoms-Time taken to deliberate upon judgment

Delay between conclusion of evidence and argument at trial and trial judge's judgment

Whether S. 11(b) of Canadian Charter of Rights and Freedoms ('the Charter') applied to verdict deliberation time, and if so whether verdict deliberation time was included in the time limits (presumptive ceilings) established in the judgment R v Jordan [2016] 1 S.C.R. 631 ('the Jordan case')

Test to be applied in assessing whether right to be tried within reasonable time infringed by delay occasioned by verdict deliberation time

[Per Moldaver, J: Where an accused claimed that the trial judge's verdict deliberation time breached their S. 11(b) Charter right to be tried within a reasonable time, they must establish that the deliberations took markedly longer that they reasonably should have in all of the circumstances

Said test should be approached in light of the presumption of judicial integrity attached with judges

Burden laid on the accused to rebut such presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been

Presumptive ceilings (or time limits) established in the Jordan case were not intended to cover the entire period of time to which S. 11(b) of the Charter applied, therefore, said presumptive ceilings did not include verdict deliberation time]

[Per Abella, J concurring: For determining whether the judgment deliberation time took markedly longer than it reasonably should have did not require assessing the judge's integrity

Test for unreasonable deliberative delay would be more effective and fair, if it assessed only the objective and contextual factors for the delay, without the added hurdle on the accused of having to demonstrate that the trial judge acted without integrity.

Fundamental rights in a living Constitution were to be liberally interpreted so that they continued to embolden freedom,equality, tolerance and social justice.

Petitioner assailed the vires of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 on the ground of being violative of Art.10 of the Constitution

Validity

Article 10 of the Constitution provided safeguards as to arrest and detention

Provincial Assembly had, within the parameters of cls.(1) and (2) of Art.10, enacted Ss.27 to 30 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 which provided mechanism and safeguarded the Fundamental Rights of citizens so that an innocent person could not be dragged into an unwarranted situation

Section 32 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 provided punishment for vexatious entry, search, seizure or arrest

Constitutional petition, being misconceived, was dismissed.