SSRN Id3877964

Prevailing Practice of Judicial Activism in Pakistan: A Legal
Analysis in the Light of International Standards
Submitted By: Noreen Siddique
Registration Number: 2015-LLB-017
Spring 2020
Department of Law
Fatima Jinnah Women University, Rawalpindi
Electronic copy available at: https://ssrn.com/abstract=3877964

A Research Project submitted in partial fulfillment of the requirements for
the degree of Bachelor of Laws (LLB)
Submitted by
Noreen Siddique
2015-LLB-017
Supervised by
Ms. Zainab Iqbal
Department of Law
Fatima Jinnah Women University
The Mall, Rawalpindi
2020

Noreen Siddique
©____________2020
All rights Reserved.

Declaration of Ethical Conduct in Research
I, Noreen Siddique as a student at Fatima Jinnah Women University, Rawalpindi, hereby
declare that firstly, I have abided by the research ethics while writing this research project.
Secondly, I have not committed any acts that may discredit or damage the credibility of my
research. These include but are not limited to falsification distortion of research findings or
plagiarism.
Thirdly, I need to go through a plagiarism check before submitting this research project.
Date: November 2020
Degree: LL.B.
Department: Law
Supervisor Name: Ms. Zainab Iqbal
Name & Signature of Student: Noreen Siddique

DEDICATION
I dedicate this work to Allah SWT, my creator who gave me strength throughout this research. I
also dedicate this work to my loving parents because of their love, support, and cooperation it
became possible for me to complete my research work. I am grateful to them for their support and
love in every phase of my life.

CONTENTS
DEDICATION......................................................................................................................... 5
ACKNOWLEDGMENT ...........................................................Error! Bookmark not defined.
LIST OF CASES ..................................................................................................................... 1
LIST OF ABBREVIATIONS ................................................................................................ 2
THESIS STATEMENT .......................................................................................................... 3
INTRODUCTION................................................................................................................... 3
REVIEW OF LITERATURE ................................................................................................ 4
SIGNIFICANCE OF STUDY ................................................................................................ 7
RESEARCH QUESTION ...................................................................................................... 8
RESEARCH METHODOLOGY .......................................................................................... 8
OUTLINE ................................................................................................................................ 8
CHAPTER 1 .......................................................................................................................... 10
INTRODUCTION TO JUDICIAL ACTIVISM ................................................................ 10
INTRODUCTION................................................................................................................. 10
1.1 WHAT IS JUDICIAL ACTIVISM? ............................................................................. 10
1.2 ORIGIN OF JUDICIAL ACTIVISM ........................................................................... 12
1.3 PRACTICE OF JUDICIAL ACTIVISM ACROSS THE GLOBE ........................... 14
1.3.1 Judicial Activism in the United States .................................................................... 14
1.3.2 Judicial Activism in the United Kingdom .............................................................. 15
1.3.3 Judicial Activism in Canada.................................................................................... 17
1.3.4 Judicial Activism in Australia ................................................................................. 17
1.3.5 Judicial Activism Germany ..................................................................................... 17
1.3.6 Judicial Activism in the European Union .............................................................. 18
1.3.7 Judicial Activism in India ........................................................................................ 18
1.4 PROS AND CONS OF JUDICIAL ACTIVISM .......................................................... 19
1.4.1 Pros of Judicial Activism ......................................................................................... 19
1.4.2 Cons of Judicial Activism ........................................................................................ 19
CONCLUSION ..................................................................................................................... 20
CHAPTER II ......................................................................................................................... 21
JUDICIAL ACTIVISM IN PAKISTAN ............................................................................. 21
INTRODUCTION................................................................................................................. 21

2.1 SCOPE OF JUDICIAL ACTIVISM IN PAKISTAN .................................................. 21
2.3 JUDICIAL ACTIVISM IN THE ERA OF CHIEF JUSTICE IFTIKHAR
MUHAMMAD CHAUDHRY .................................................................................................... 23
2.4 JUDICIAL ACTIVISM IN THE ERA OF CHIEF JUSTICE MIAN SAQIB NISAR
....................................................................................................................................................... 26
2.5 FACTORS RESPONSIBLE FOR THE PREVALENT PRACTICE OF JUDICIAL
ACTIVISM IN PAKISTAN ....................................................................................................... 27
2.6 NEGATIVE IMPACT OF JUDICIAL ACTIVISM IN PAKISTAN ........................ 28
CONCLUSION ..................................................................................................................... 29
CHAPTER III ....................................................................................................................... 30
ANALYSIS OF JUDICIAL ACTIVISM IN THE LIGHT OF INTERNATIONAL
LEGAL STANDARD ................................................................................................................. 30
INTRODUCTION................................................................................................................. 30
3.1 DEFINITION OF THE NOTION OF JUDICIAL ACTIVISM IN THE CONTEXT
OF INTERNATIONAL LAW ................................................................................................... 30
3.2 THE INTERNATIONAL COURT OF JUSTICE’S REVIEW ON ORIGINAL
JURISDICTION OF SUPREME COURT OF PAKISTAN................................................... 31
3.3 ANALYSIS OF INTERNATIONAL STANDARDS FOR EXERCISE OF JUDICIAL
ACTIVISM .................................................................................................................................. 31
3.3.1 Study of Case Laws of Constitutional Jurisdiction of the US Courts ................. 32
3.3.2 The Indian Legal Standard for Practicing Judicial Activism .............................. 34
3.4 COMPARATIVE ANALYSIS OF PAKISTAN, US, AND INDIAN STANDARDS
FOR EXERCISING JUDICIAL ACTIVISM .......................................................................... 35
3.5 GAPS AND FLAWS IN PAKISTAN’S JUDICIAL ACTIVISM............................... 37
CONCLUSION ..................................................................................................................... 37
CHAPTER IV........................................................................................................................ 38
RECOMMENDATIONS AND CONCLUSION ................................................................ 38
RECOMMENDATIONS ...................................................................................................... 38
CONCLUSION ..................................................................................................................... 39
BIBLIOGRAPHY ................................................................................................................. 40

LIST OF CASES
International Cases
1. BROWN VS BOARD OF EDUCATION U.S. 483 (1954)
2. CASSIS DE DIJON CASE, C-120178, (1979)
3. CITIZENS UNITED VS. FEDERAL ELECTION COMMISSION, 558 U.S, 310 (2010)
4. DISTRICT OF COLUMBIA VS. HELLER554 U.S 570 (2008)
5. HOLLINGSWORTH VS. PERRY, 570 U.S, 693 (2013)
6. MARBURY V. MADISON, 5 U.S. 137(1803)
7. MCCULLOCH V. MARYLAND, 17, U.S., 316, (1819)
8. OBERG FELL VS. HODGES, 570, U.S, 644 (2015)
9. ROE V. WADE, 410 U.S, 113 (1973)
Pakistani Cases
1. DARSHAN ALI VSREHMATY& OTHERS VS THE STATE, (1990) 513 PLD (SC)
2. IMRAN KHAN NIAZI VS MIAN MUHAMMAD NAWAZ SHARIF, (2017) PLD (SC)
3. IMRAN AHMAD KHAN VS. MIAN MUHAMMAD NAWAZ SHARIF, (2017) 692 (SC)
4. PRIVATIZATION OF PAKISTAN STEEL MILL CASE (2005)
5. SUO MOTO CASE REGARDING THE COMBATING OF CORONAVIRUS, No.01 (2020)

LIST OF ABBREVIATIONS
AIR All Indian Review
CJP Chief Justice of Pakistan
ECJ European Court of Justice
EU European Unions
PIL Public Interest Litigation
PLD Pakistan Law Digest
RPP Rental Power Plant
SC Supreme Court
UK United Kingdom
US United States

THESIS STATEMENT
Due to the excessive role of the judiciary in the present era of Pakistan, the active role of the
judiciary in the maintenance of the justice system is compromised, thus there arises a need to
highlight the pros and cons of judicial activism and to analyze it in the light of international legal
standards.
INTRODUCTION
Judicial activism is an articulation that demonstrates the dynamic part of the judiciary in giving a
solution for a wronged individual by setting or defining new guidelines. In Pakistan, this power is
vested in the Supreme Court (hereinafter referred to as SC) as under Article 184(3) in the
constitution of the Islamic Republic of Pakistan, 1973. In Pakistan, because of unreasonable
utilization of the said Article by the predominant legal executive, there is significant discussion.
There are strong viewpoints about the dynamic part of the judiciary in Pakistan by opponents of
the judicial activism. There is a solid analysis by the negativists, that the current hyper judicial
activism is a danger to majority rules system as the detachment of forces between three organs of
the public authority and the Parliamentary matchless quality are the fundamental standards of the
popular government however the developing dynamic function of the judiciary in activism is at
the territory of Parliamentary incomparability. Moreover, the apex court under the suo moto power
is meddling in all issues for example political, social and monetary. In this manner, there is a need
to investigate judicial activism whether it is being worked on as indicated by the standard of law
or not. In the event that it is not, at that point what are lacunas and blemishes in the justice system
of Pakistan which should have been satisfied in the light of international legal standards?

REVIEW OF LITERATURE
“Kishwar Munir” and “Irum Khalid” in a research article “Judicial Activism in Pakistan: A
Case Study of Supreme Court’s Judgments 2008-13,” said that in Pakistan there is a
Parliamentary democracy under the principle of separation of powers and the proactive role of the
judiciary in the form of judicial activism, is violating the very basic principle of this theory by
crossing its limits and said that there is need to keep the judiciary in limits from intervening in the
business of legislature and executive. This exercise of the judiciary is making fearful prospects not
only in Pakistan but also on the international level. Therefore, limiting the powers of the judiciary
in intervening in the matters of other branches of government is necessary for a strong democratic
political system in the country. 1 However, the writer failed to mention the reasons for the
judiciary's hyperactive role.
“Tausif Kamal” in his article “Judicial Activism,” said that the concept of judicial
activism is more outrageous and unrestrained than in other democratic countries. The judicial
activism in Pakistan used by SC is excessive as it deteriorates the basic principle of the
Constitution. Therefore, there is needed a permanent institutional solution. The provision of Suo
Moto power does not exist in any Constitution of the world in the form under Article 184(3) of the
Constitution of Pakistan. Therefore modification in the said provision is needed and also for
reducing judicial activism, the SC should be barred from disqualifying and removing the elected
Prime Minister and this should be done by the Parliament. 2 Although the writer criticized the form
of judicial activism practiced in Pakistan which is not seen in other countries of the world but he
failed to compare the practice of judicial activism in Pakistan with other countries.
1
Kishwar Munir & Irum Khalid, Judicial Activism in Pakistan: A Case of Supreme Court Judgments 1-22 (2018).
2
Tausif Kamal, Judicial Activism 23-24 (2019).

“Muhammad Waseem” in his article “Judging Democracy in Pakistan: Conflict
between the Executive and Judiciary” describes that the activist mode of SC is disrupting the
government system. The SC goes opposite of its own rules; the doctrine of accountability and
dispensation of justice in the court proceedings when it passes final judgments founded on a
complementary act excuses the government in serious moments and withdraws at the point at
which it would have established the predominant system. Moreover, the intervention by the SC in
government affairs is increasing. Originally, this power was limited to constitutional matters, but
now it is expanding in public affairs as well. The executive is sometimes forced to cancel out its
decisions by the judiciary. 3 In this article, the writer contended that the judiciary is dominant in
the matters of the executive; however, he failed to prove the illegality of the SC’s decisions to
undo the tasks of the executive.
“Gabriela Knaul” in her report to the “United Nation Human Rights Council”
expressed that the SC of Pakistan is not acting according to the rule of law as its role becomes
more political and sensitive. There is a need for clearly defined criteria to decide suo moto cases
under the rule of law. In 1994, Article 184(3) of the Constitution of Pakistan, SC had been
conferred the power to have original jurisdiction in the matters of fundamental rights of the
citizens. Article 184(3) was evolving; however, the court is excessively using its power beyond its
limits. She further said that the court must act within a balanced and indiscriminate policy in
exercising its original jurisdiction and avoid acting as a “social reformer”. 4 The reporter has only
criticized the proactive role of the SC but could not advise a better solution for a stable policy.
“Sanaa Ahmed” in her research article “Supremely Fallible? A Debate on Judicial
Restraint and Activism in Pakistan,” said that judicial activism throughout the tenure of Chief
3
Waseem Ahmad, Judging Democracy in Pakistan: Conflict Between the Executive and Judiciary 19-31 (2012).
4
GABRIELA KNAUL, SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS, 54 (2012).

Justice of Pakistan (hereinafter referred to as CJP) Iftikhar Muhammad Chaudhary was seen as a
novel kind of judicial activism in Pakistan which was led to the judiciary being indicted of judicial
overreach, politicized and judicial terrorism. The activist attitude of the judiciary during the tenure
of CJP is described against the historical procedure of judicial review in Pakistan exclusively
pertinent to military takeovers and Administrative Law. She resisted that the expansion of the
judicial review is merely the discussion of power between the judiciary, military, and Political
elects. SC is surpassing its parameters by interfering in the matters that come not under its sphere,
this overlooked the valuable time of the courts as there is apprehension regarding SC's importance
for hearing the cases. 5 The researcher of this article did not analyze the decisions taken by the SC
under its original jurisdiction and abandoned to evaluate the decisions of the SC.
“Mohsin Raza Malik” in his article “A Discourse on Judicial Activism” criticized that
over some time, Pakistan’s SC has exercised its original jurisdiction excessively and assertively in
the wake of judicial activism. The exercise of judicial activism introduced in the regime of Justice
Iftikhar Muhammad Chaudhry proved to be an encroachment upon the executive’s authority. The
universally accepted principle of democracy and the separation of powers seem to have been
compromised in Pakistan and this kind of encroachment upon the executive by the apex court gave
rise to unusual judicial activism in the country. Therefore, it is pertinent to mention that the
superior judiciary should remain in the constitutional domain. 6 Even though the writer contended
that judicial activism is harming the principle of separation of powers but he failed to recommend
a solution to curb this issue in the light of the constitutional domain.
“Muhammad Raheem Awan” in his research article “Judicial Activism in Pakistan in
Commercial and Constitutional Matters: Let Justice Be Done Though the Heavens Falls,”
5
Sanaa Ahmad, Supremely Fallible? A Debate on Judicial Restraint and Activism in Pakistan, 213-219 (2017).
6
Mohsin Raza Malik, A Discourse on Judicial Activism, 13 (2018).

said that there are several decisions which have been handed down by the SC on undistinguished
issues such as price controls, investigation to the disqualification of the prime minister as well as
annulment the commercial deals and statutory provisions under its original jurisdiction. The
excessive use of suo moto power raises a concern regarding the executive's constitutional power
and the effectiveness of its agreements with other States. 7 The exhaustive literature on judicial
activism only criticizes the phenomena but there is also a need to describe the reasons behind the
practice of this power and to provide recommendations which will be the main focus of this
research.
“Sadat Ali” in his research article “Images of Judicial Activism in Pakistan: The
Presentation of Superior Judiciary in National English Daily”, criticized that the current wave
of judicial Activism in intervening in every matter taken from human rights issues to the
maintenance of roads. While the positivists are praising this attitude of the SC, for them the court
is the custodian of fundamental rights ensured by the Constitution, so where there is a violation of
these rights, and when the executive and legislature are not playing their roles and the government
is weak, then judiciary's action under its active role is a considerable thing. 8 However, this research
is old and now a new regime of judicial activism has been started. So, this research will also cover
the contemporary practices of judicial activism in Pakistan.
SIGNIFICANCE OF STUDY
The research plans to research the explanations for the extreme dynamic function of the judiciary
in form of “judicial activism” in Pakistan, and to feature the advantages and disadvantages of it in
the light of international principles. This examination will likewise give proposals to set limitations
7
Muhammad Raheem Awan, Judicial Activism in Pakistan in Commercial and Constitutional Matters: Let Justice
Be Done Through Heavens Falls 1-28, (2014).
8
Sadat Ali, Images of Judicial Activism in Pakistan: The Presentation of Superior Judiciary in National Level, 1,
JOURNAL OF RESEARCH AND REVIEWS IN SOCIAL SCIENCES PAKISTAN, 212-223 (2018).

and boundaries for it. The examination will be helpful particularly for the law students in learning
the idea of legal activism in Pakistan and to fundamentally analyze it.
RESEARCH QUESTION
1. What are the principles of judicial activism in the International legal regime?
2. In the light of practices followed on an international level, what are the challenges
concerning judicial activism in Pakistan?
3. How the concept of judicial activism can be an efficient tool for the justice system in
Pakistan?
RESEARCH METHODOLOGY
The research methodology which is being used in this research is qualitative. It contains a
comparative study of the exercise of judicial activism in the light of international legal standards
and prescribes the recommendations for gaps and flaws in the current practice of judicial activism
in Pakistan
OUTLINE
The Chapter I starts with the introduction of judicial activism. It describes the concept and origin
of judicial activism. In this chapter pros and cons of judicial activism are also mentioned. Further,
it contains the study of the existence, forms, and practice of judicial activism in different
jurisdictions.
The Chapter II contains the study of judicial activism in Pakistan. It describes its origin
and practice in Pakistan. Further, it discusses the judicial activism and factors that triggered it. It
discusses the two regimes of judicial activism in Pakistan and criticism of them. It also includes
the current scenario of the active role of the judiciary in Pakistan.

The Chapter III analyses the practice of judicial activism on the international level. It
discusses the case studies of judicial activism in the United States (hereinafter referred to as the
US) and Indian form and practice of judicial activism. It provides a comparative analysis of the
judicial activism being followed in India and the US with the practice being followed in Pakistan.
Chapter IV winds up the examination with recommendations and conclusion.

CHAPTER 1
INTRODUCTION TO JUDICIAL ACTIVISM
INTRODUCTION
Under the principle of the democratic system, the government of Pakistan is run by its three
representatives departments, the legislature (making laws), the executive (enforcing laws), and the
judiciary (interpreting the laws and apply these laws to adjudicate the disputes). Although there is
a fundamental principle of separation of power between the organs of the government, yet the rigid
principle of separation of powers is unviable. The judiciary under the power of judicial activism
is excessively interfering in the matters of executive and legislature. The active role of the judiciary
under suo moto power is of considerable debate. This chapter will discuss the origin of judicial
activism and analyze its practice in the different countries of the world.
1.1 WHAT IS JUDICIAL ACTIVISM?
Judicial activism is a judicial mode of procedure that the courts can and should go further than the
applicable law to deem broader societal implications of its decisions. It is sometimes used as an
antonym of judicial restraint. The notion of judicial activism carries several definitions. Some say
it is overturning a prior decision by a judge. Others disagree that the crucial role of the court is to
make clear and re-interpret the features of the Constitution and weigh up the constitutionality of
laws, and for that reason, such actions possibly will not be called judicial activism at all. Therefore,
the expression “judicial activism” depends on how a judge interprets the Constitution, in addition
to the attitude of the judge on the function of the SC in the separation of powers. 9 Paul Mahoney
described that “judicial activism occurs when the judges reformed the law from what was earlier
9
ELIANNA SPITZER., WHAT IS JUDICIAL ACTIVISM? 45 (2019).
10

stated to be the prevailing law which normally leads to replacing their own decisions from that of
the elected legates of the people.” 10
Judicial activism is a viewpoint. It has its origin in the inactivity and lack of interest of the
legislature and the executive. It is the performance of judicial activities. It is created to remove the
gap between the optimistic and normative facets of the law. 11 Generally, the notion of judicial
activism means the court's decisions, based on the judge's perception or political affiliation that
does not go strictly within the statutory text passed by the legislature and to exercise the judicial
power to prevent social wrongs by ensuring proper justice and to provide remedies. 12 However,
Black’s Law dictionary tells that “judicial activism is a judicial philosophy which motivates judges
to depart from the traditional precedents in favor of progress and social policies.” Technically, the
concept is associated largely with the interpretation of statutes and statutory building. 13
As to respond to the denotation of the expression of judicial activism it must be clear up that
judicial activism does not denote the exercise of the role of the judiciary for resolving the questions
following the Constitution but it is taking up of pro-active attitude by the judiciary. Judicial
activism gives a demonstration of the situation when the judiciary pro-actively takes decision
otherwise of its domain of traditional routine, and work while set down the policies and programs
to make sure the safeguard of the rights and interests of the public which otherwise is within the
preference of the legislature and the executive. 14
10
Paul Mahoney, Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of
the Same Coin, 11 YALE HUMAN RIGHTS & DEVELOPMENT LAW JOURNAL 57 (1990).
11
M. Semwal and Sunil Khosla, JUDICIAL ACTIVISM, 69 IND. J. POLITICAL SCIENCE 113-126 (2008).
12
Id.
13
Mostafizur Rahman & Roshna Zahan Badhon, A Critical Analysis on Judicial Activism and Overreach, 23, IOSR
Journal of Humanities and Social Science 45-53 (2018).
14
M Semwal and Sunil Khosla, JUDICIAL ACTIVISM, 69, IND.J. POLITICAL SCIENCE 113-126 (2008).
11

1.2 ORIGIN OF JUDICIAL ACTIVISM
Prior to the twentieth century, some researchers battled that judges are making positive law and
Blackstone favored legal enactments as the most grounded normal for the customary law. Bentham
thought this as a usurpation of the administrative job and a misrepresentation or hopeless fallacy
regarding legislative role. In the principal half of the 20th century, a surge talked about the benefits
of legal enactments, and conspicuous researchers took positions on one or the other side of the
discussion. Analysis of sacred legal enactment was generally serious all through the Lochner
period. 15
In Lochner v. New York (1905) case the SC decided that a New York law setting greatest
working hours for cooks was unlawful. The court held that the Constitution forbids states from
meddling with most work contracts in light of the fact that the option to purchase and sell work is
a basic opportunity secured by the Fourteenth Amendment. 16 The decision, and the subsequent
"Lochner era" introduced, prompted the annulment of numerous reformist eras and Great
Depression laws directing working conditions. In 1937, the SC overturned the Lochner principle
in West Coast Hotel v. Parrish. 17
Critics assaulted the court's inclination for business interests as it consistently struck down
social enactment for the sake of meaningful fair treatment. While some modem researchers
consider Lochner for all intents and purpose it inseparable from legal activism, the term is
prominently missing from contemporaneous analysis. The New Deal and the "unrest" of 1937
introduced another spate of basic critique, however once more, contemporaneous writing does not
15
Keenan Kmiec, The Origin and Current Meanings of Judicial Activism, 92 CAL.L. REV 1-38 (2004).
16
Lochner v. New York, 198 U.S. 45 (1905).
17
Id.
12

make reference to "judicial activism" by name. A long time later, after the judges concurred that
the New Deal was on firm sacred ground, the term at last surfaced in lawful discourse. 18
1.2.2 First Recorded Use of the Term Judicial Activism by Arthur Schlesinger in Fortune
Magazine
In 1947, a scholar Arthur Schlesinger Jr used the term judicial activism in a popular magazine’s
article. 19 Schlesinger stated four judges of SC as judicial activists. 20
Schlesinger pointed out multiple senses when he authored judicial activism. He asserted
that the Black Douglas group is the promoter of the positive role of the SC in promoting social
good. One group is increasing the series of permissible rulings for legislature event if it means
maintaining conclusion they privately criticize. One group deems the court as a means to
accomplish their preferred social results, second as a channel to allow the other governmental
institution to attain the results the public want for well or worse. In short, the Black-Douglas group
is more concerned with deciding particular cases following their social preconceptions. 21
1.2.3 Initial Practice of Judicial Activism
In its initial existences, the term judicial activist sometimes had an optimistic meaning similar to
civil rights activist than judge abusing power. Albon Man perceived that late Justice Murphy
played an activist role in civil rights cases. 22 Alfred L. Scanlon supported Justice Murphy's active
role in civil rights cases, responding the censure that such activism is undemocratic by replying,
that “We sanction the decisions of elected representatives of public. When that public
representatives will attempt to weaken or damage the primary rules upon which it rests, such as,
18
19
Id
20
Id
21
Id
22
Albon Man, Jr., Mr. Justice Murphy and the Supreme Court, 36 VA. L. REV. 889, 916 (1950).
13

the freedom of expression, practices, parties, etc., then the judiciary, as custodian of the Bill of
Rights, must interrupt. We will not bear democracy to be demolished in its name.” 23 In the same
24
parlance, the first use of “judicial activism” was marked in Theriot v. Mercer case by C.
Hutcheson, Jr. in a judicial interpretation overruling a trail court decision. Since then, it has
become increasingly common in opinions criticizing other judges. 25
1.3 PRACTICE OF JUDICIAL ACTIVISM ACROSS THE GLOBE
Judicial activism is a wider term used to explain the course of action of judicial review i.e. a
constitutional power conferred to the superior courts to give a ruling on the constitutionality of a
law, statute, administrative action, constitutional provision, or an amendment. The superior courts
of various countries exercise the power of judicial review as it is a strong legal means to make
void all extra-constitutional acts: and policies of the administrative, executive, and legislative
authorities. 26
1.3.1 Judicial Activism in the United States
The judicial system in the US is a system that provides courts with the power and authority to
dispense justice, though that justice must not beyond the boundaries of the law. As some laws in
the US are not clear to apply or missing specific directions to be applied to a particular case, the
court system is also in authority to interpret the laws and to make sure that they are applied rightly
on both the State and Federal levels. Although the judiciary has no authority by the Constitution
of the US in making laws to ensure justice it applies the facts of each case to the existing laws. 27
23
Alfred L. Scanlon, The Passing of Justice Murphy-The Conscience of a Court, 25 NOTRE DAME L. REV. 7, 38
(1949).
24
Theriot v. Mercer, 262 F.2d 754 (5th Cir. 1959)
25
26
Syed Jazib Shamim, A Review on Judicial Activism in Pakistan, 1-11 (2018).
27
Choudury Rehana Sultana, Judicial Activism a Catalyst for Development Indian Judiciary Issues and Challenges A
Critical Study, A REVERSION OF INDIAN THESES 67 (2017).
14

Judicial activism of the SC of the US is a means to protect fundamental rights guaranteed by
the Constitution of the US. 28 For example, the SC of the US in the Roe v Wade cases trenched out
the constitutional right of privacy to add in the “penumbra” right to have an abortion, although the
right was not specified in that manner in the Constitution. 29 Even the court is called to decide the
applicability of law in certain situations to reach its decision, and these decisions become binding
precedents means other courts obey this interpretation for deciding similar cases in the future. 30
The courts and judges in the US make policies and fit them into the rulings continuously and
this practice is known as judicial activism. The proactive role of the US judiciary can be observed
in topics such as education, abortion, homosexuality, gay marriage, nude dancing, and police
invasion into citizen’s homes, etc. Surprisingly, this has only scratched the surface, and judicial
activism involves lots more subjects of society than the few that have been touched on. Thus,
judicial activism will exist as a source of getting desires in the shape of law for the interest in the
probable future. 31 In 1930, during the phase of the great depression, the SC of the US nullified a
series of legislative actions taken by the government under the so-called new deal program. 32
1.3.2 Judicial Activism in the United Kingdom
A close examination shows that the United Kingdom (hereinafter referred to as the UK) courts
have played a significant role by exercising an active role in the protection of democracy and good
law is a difficult and unbalanced time. 33
28
Tausif Kamal, A Solution of Judicial Activism 89 (2019).
29
ROE V. WADE, 410 U.S. 113 (1973)
30
31
WISEMAN V. RYAN, JUDICIAL POLITICS: EXAMPLES OF JUDICIAL ACTIVISM IN THE UNITED STATES 14 (2016).
32
COX. ARCHIBALD-LAW, POLITICS, AND JUDICIAL ACTIVISM SURROUNDING THE NEW DEAL, THE COURTS AND THE
CONSTITUTION 145-55 (1987).
33
15

For the past 25 years, growing judicial activism has been seen in the UK. Notably, in the
case of R v Secretary of State for the Home Department, Justice Collins, sitting in the High Court,
critiqued the provisions of the Nationality under the Immigration and Asylum Act 2002, and stated
that the dismissal of benefits from the refugees who did not request for asylum on arrival in the
country was unjust and infringement of their human rights. 34
It is worth mentioning that the judiciary in the common law system has more creative and
legislative function than in a civil law system based on a code. It persevered in the 19th century in
the declaratory theory of precedent that the judges do not create law but only declare the common
law or common custom of the empire, but it is now usually seen that the judges in the UK make
some law with the silent consent of parliament. 35
According to a critical evaluation, judicial activism is not suitable with British
constitutional theory, political culture, and the judges themselves. Despite that, now it is operated
frequently to the actions of British judges. John Griffith states a wave of judicial activism or
intrusion initiated in the early 1960s and has been rising in strength ever since. 36 A. Harding while
stressed the significance of the wave of current judicial activism when talking about the changing
law of public duties. 37 Even a senior British judge suggested the following consideration in 1985:
“It is probably a commonplace nowadays to notice that as a result of a series of judicial
rulings since about 1950, there has been a dramatic and indeed a drastic change. That change
has been defined by no means critically as an increase of judicial activism.” 38
34
All ER, 2 (2003)2 905.
35
MICHAEL & MOLAN, CONSTITUTIONAL LAW: THE MACHINERY OF GOVERNMENT 70 (2001).
36
GRIFFITH. JOHN, THE POLITICS OF THE JUDICIARY 230 (1985).
37
HARDING A J, Public Duties and Public Law, 89 (1989).
38
LORD ROSKILL IN COUNCIL OF CIVIL SERVICE UNIONS V. MINISTER FOR CIVIL SERVICE (1985) 1 A.C. 374.
16

1.3.3 Judicial Activism in Canada
In Canada, the subject of judicial activism becomes a substantial disagreement. It is stated that
extreme defense in favor of judicial activism in Canada compelled the legislature and the official
to carry out the decision of the judiciary which it takes without scrutiny those effects on state action
on helpless minorities. 39
It is usually said that before the passing of the Canadian Charter of Rights and Freedoms 40 in
1982, judges construed the law and did not take it upon themselves to create law. Therefore, the
Charter is mostly viewed as a standard by the judiciary in the time of making law by the judiciary.
However, it would not be wrong to say that the judges have been played a great role in forming
government policy and legislation. In different areas of private law, such as torts and contracts, the
law has been mainly reliant on judicial decisions. 41
1.3.4 Judicial Activism in Australia
Judicial activism is a strong and central part of Australian governance which is considered
judicial control over political or administrative institutions, processes, and outcomes. The
framers of the Australian Constitution modeled the High Court of Australia on the SC of the US.
The High Court was given the key role of exercising judicial review which it has performed with
relative ease and distinction for almost a century of the federation. 42
1.3.5 Judicial Activism Germany
Judicial activism in Germany primarily activates on the principle of basic law. The highest court
of Germany which is the federal constitutional court regards the Constitution as the basic law. The
39
KENT ROACH, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue, 89-95 (2001).
40
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982.
41
LEWIS KLAR, TORT LAW, 33-39 (2003).
42
BRIAN GALLIGAN, JUDICIAL ACTIVISM IN COMPARATIVE PERSPECTIVE 70-89 (1991).
17

basic law theory is applied either in deciding the subjects regarding the basic rights and the basic
federal characteristics of the German Constitution by the Federal constitutional court which in turn
grants courts the power to exercise judicial activism if anything goes in derogation of their theories
and federal characteristics. 43
1.3.6 Judicial Activism in the European Union
The European Court of Justice (hereinafter referred to as ECJ) has been played an important role
in the integrity of the European Union (hereinafter referred to as EU) by performing judicial
activism. 44 In Cassis De Dijon's case, 45 ECJ ruled that the German laws of the prohibition of sales
of liquors with alcohol between 15% and 26 % conflicting with the EU laws. Further ruled that the
EU laws have supremacy over the member state laws. When treaties are not clear, the court
interprets them in different ways. In negotiations of EU treaties, it is hard to get all the member
states to agree on the laws, therefore, for a compromise, the government of the States agrees to
leave the issue to the court for a solution. 46 The ECJ can only play an active role when all the
governments of member states agree to leave room for interpretation in the treaties. Thus, the ECJ
gives decisions and makes rulings with intent to EU integrations. Therefore, ECJ cannot exercise
judicial activism in its true sense since it depends largely on the EU integrations. 47
1.3.7 Judicial Activism in India
The Indian SC is the highest constitutional court and according to the Constitution of India SC is
the guardian of the Constitution. Recently, the origin of judicial activism in India originated
after the emergency in India where the government endeavored to control the judiciary. 48Judicial
43
ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE – A REPLY TO LEGAL POSITIVISM 70 (2004).
44
BACH, LAN & STEPHEN, POLITICS IN THE EUROPEAN UNION 34-39 (2006).
45
CASSIS DE DIJON, ECR AND POLICY 649 (1979).
46
BACH LAN & STEPHEN, POLITICS IN THE EUROPEAN UNION 78 (2006).
47
Moravick Alfred, In Defense of the Democratic Deficit: Reassessing Legitimacy in the European Union 40 (2002).
48
T. R. Andhyarujina, Disturbing Trend in Judicial Activism 89 (2019).
18

activism in India can be observed in the review power of the SC under Article 32(I) (belt Courts
under Article 226 of the Constitution), particularly in Public Interest Litigation. 49 The SC of India
has framed various principles in public interest litigation cases like the principle of absolute
liability was brought forward in the Oleum Gas Leak case 50and public trust doctrine in the Kamal
Nath case. 51Therefore, it is to say that in India the courts under the concept of Public interest
litigation can exercise judicial activism for the disposal of the case.
1.4 PROS AND CONS OF JUDICIAL ACTIVISM
Below are stated the pros and cons of judicial activism:
1.4.1 Pros of Judicial Activism
The supporters of judicial activism uphold that it is an appropriated tool and other scholars have
purported that judicial activism is the most appropriate tool to restrain the propensity of democratic
majorities to act out of passion and unfairness rather than after reasoned deliberation. 52 It works
with the idea to enforce constitutional rights and rule of law. It is also a useful and well-organized
means for the dispensation of justice. 53
1.4.2 Cons of Judicial Activism
Judicial activism leads to harm to the democracy and rule of law by taking the position of power
of the elected government's branches and appointed agencies. 54 The personal verdicts of the judge
by using the tool of judicial activism can be influenced on selfish motives and interference of the
court in government’s matter can not only harm the stability of governance but also can destroy
49
Arpita Saha, Judicial Activism in India: A Necessary Evil 56-59 (2008).
50
M.C. MEHTA V UNION OF INDIA AIR, SC, 965 (1987).
51
M.C. MEHTA V KAMAL NATH, 1 SC, 388(1998).
52
Evan C. Zoldan, Targeted Judicial Activism, 16 GREEN BAGS 2, (2013).
53
KHADIM HUSSAIN QAISER, Public Interest Litigation’ Additional Advocate General Punjab paper presented in
International Judicial Conference organized by Pakistan Law Commission at Supreme Court Building Islamabad
Pakistan on, Apr 12, (2011).
54
Justice Antonin Scalia's Remarks in Romer v. Evans; 517 U.S. 620 (1996).
19

the faith of the people in the quality, integrity, and efficiency of governmental institutions.
Moreover, when courts excessively use juridical activism then there is an apprehension that they
can exceed the jurisdictional limit of their working as provided in the constitution and can affect
the concept of separation of powers. 55
CONCLUSION
From the above discussion, it can be determined that the concept of judicial activism exists under
most constitutions of the various countries of the globe. Judicial activism varies from Constitution
to Constitution concerning the procedure, epoch, and also the starting place from where it
originated its existence. However, the form of judicial activism is different. Even the sources of
judicial activism are not the same. It does not matter what may be the variation of the concept of
judicial activism, it is existing in several countries and shall be present to protect the spirit of the
supreme law of the land from its violation by the other organs of a state. Judicial activism has also
some pros and cons, but it would be appreciable when it would be exercised for the sake of
protection of fundamental rights and public interest.
55
MARK ANDEY KATJU, When Judges Legislate 67-69 (2018).
20

CHAPTER II
JUDICIAL ACTIVISM IN PAKISTAN
INTRODUCTION
In Pakistan, there is a Parliamentary democracy, where the legislature, executive, and judiciary
are considered three organs of the government. There is a separation of powers between these
three organs of the country. The superior judiciary has original jurisdiction under Article 184(3)
regarding the protection of fundamental rights of the citizens guaranteed in the Constitution of
Pakistan of 1973. In Pakistan, sometimes it is perceived as the interference and disturbance of the
judiciary in the matters of other organs of government. However, there is considerable
disagreement in identifying the exact meaning of the term. This chapter will discuss the origin of
judicial activism in Pakistan as well as the current practice of judicial activism. The significance
of the chapter is to analyze the prevailing practice of judicial activism in Pakistan.
2.1 SCOPE OF JUDICIAL ACTIVISM IN PAKISTAN
The SC is formed and construes its powers from the Constitution of Pakistan 1973. 56 The SC is
regarded as the guardian of the Constitution and it also safeguards the fundamental rights of
citizens listed in the Constitution. In the performance of its constitutional responsibilities, the SC
is bestowed with original 57 (actions are taken in own motion), appellate, 58 advisory 59 , and review60
jurisdictions.
56
PAK, CONSTITUTION, art, 175.
57
Id, art, 184.
58
Id, art, 185.
59
Id, art, 186.
60
Id, art, 188.
21

In the enforcement of fundamental rights 61 the SC derives its suo moto power from Article 184(3),
which provides, “Without prejudice to the provisions of Article 199, the SC shall if it considers
that a question of public importance concerning the enforcement of any of the fundamental rights
conferred by Chapter I of part II is involved have the power to make an order of the nature
mentioned in the said Article.”
Whenever any fundamental right guaranteed under the Constitution is infringed or any
matter related to the public interest arises, the SC uses its power to take judicial notice and issue
an appropriate order and direction. In the enforcement of such rights, the respondent is directed to
refrain or to act according to the directions of the court. 62
The Constitution of Pakistan guarantees the administration of justice, and execution, orders
entrust several powers to the SC and enlarges its jurisdiction. The SC is authorized by the
Constitution to call any person, document, executive, or/and judicial authority for its support and
make all such directions, orders, etc. which it thinks necessary. 63
2.2 HISTORY OF JUDICIAL ACTIVISM IN PAKISTAN
In the era of CJP Mohammad Munir in 1954, SC became an associate of the civilian and military
officers ruled by the governor-general. This alliance led to certain rulings that supported the
governor general’s unconstitutional decision to terminate the first Constituent Assembly 1954. 64
The foundation of Judicial Activism in Pakistan is traced back to the famous case of Darshan
Mashi vs the State 65 case where the chief justice of Pakistan (hereinafter referred to as CJP) took
61
Chapter, I of part II of the Constitution deals with the Fundamental rights.
62
Mr. Justice Khilji Arif Hussain, Prime Minister’s disqualification case dated 19/06/12 (Additional note), Para, 12-
15.Jul 04, (2012).
63
PAK, CONSTITUTION, art, 187.
64
SYED SHARIFFUDIN PIRZADA., DISSOLUTION OF CONSTITUENT ASSEMBLY OF PAKISTAN AND THE LEGAL
BATTLES OF MOULVI TAMIZZUDIN 294-307 (1955),
65
Darshan Mashi V. the State, PLD [1990] SC, 513
22

notice of a telegram message in which the applicants exposed their employer who had illegally
detained the laborers in brick kilns and requested to then CJP getting them freed considering the
matter as public interest and enforcement of constitutional fundamental rights. The CJP diminished
the procedural requirements and declared the bonded labor illegal and thus granted relief by
proclaiming its question of public interest under Article 184(3). 66
This term got consideration since 2007 especially in the time of CJP Iftikhar Muhammad
Chaudhry. He had played an active role and faced criticism. The judges of the SC are often
criticized for disturbing matters of executive and legislature and render them invalid. 67 There are
remarkably two constant periods of controversial judicial activism: the era of CJP Iftikhar
Muhammad Chaudhry and CJP Mian Saqib Nisar.
2.3 JUDICIAL ACTIVISM IN THE ERA OF CHIEF JUSTICE IFTIKHAR
MUHAMMAD CHAUDHRY
Iftikhar Muhammad Chaudhry was appointed by General Musharraf as the CJP of the SC
on 30 June 2005.Justice Chaudhry began to take measures almost immediately to enhance access
to justice, to deal with court backlogs and to expand the use of the original jurisdiction of the SC
(including suo motu powers) pursuant to Article 184(3) of the Constitution to deal with matters
of public interest with respect to human rights. 68
The SC regularly exercised the power of original jurisdiction and allegedly exceeded the
powers throughout the tenure of CJP Iftikhar Muhammad Chaudhry. Such as in the controversial
66
Muhammad Raheem Awan, Judicial Activism in Pakistan in Commercial and Constitutional Matters: Let Justice
Be Done Through Heavens Falls, 1-28 (2014).
67
Syed Jazib Shamim, A Review on Judicial Activism in Pakistan, 79-82 (2018).
68
Profile of the Chief Justice of Pakistan, accessed at: http://www.supremecourt.gov.pk/web/page. asp?id=204
23

sale of Pakistan Steel Mills by the government and proactively pursued cases of "disappearances",
thus directly challenged the role of the intelligence agencies. 69
The retired CJP, Justice Iftikhar Muhammad Chaudhry indeed redefined the powers and scope
of suo motu jurisdiction under Article 184(3) of our Constitution. After the restitution of CJP
Iftikhar Chaudhry, the number of applications given in the human rights cell boosted at a rate of
139,906 applications per day from 2009 to 2011, as opposed to 500 applications per day before
the restoration of the superior judiciary. 70
Under CJP Chaudhry, the honorable SC exercised its power of judicial review and
constrained the parliament to participate in the process of judicial appointments. The advancement
of jurisprudence under Article 184(3), in the time of CJP Iftikhar Chaudhry, demonstrates that the
former CJP Iftikhar Chaudhary, was very fond of leading in every issue, as he has tried to control
sugar prices and failed to realize that the prices of goods are controlled by market forces and not
through Judicial orders. 71
In the Privatization of Pakistan Steel Mill Case 2005 where the steel mill workers union
filed a petition against the government in charge of corruption and challenged the validity of the
action of privatization of steel mill. The main points of the petition contained the privatization
process was not transparent; the price share was low, certain provisions of privatization ordinance
2000 were ultra vires to the Article 153 and 154 of the Constitution, therefore, had no legal binding,
the process of privatization breached the Article 2A, 3, 4, 5, 9, 23, and 38 of the Constitution and
the process of privatization adopted by the government was not legal. 72
69
Reforming The Judiciary In Pakistan, Crisis Group Asian Report No 160 56-62 (2008).
70
Aitzaz Aslam Chaudhary, The Savior Syndrome, 12 (2019).
71
Aitzaz Aslam Chaudhary, The Savior Syndrome, 12 (2019).
72
WATTAN PARTY AND OTHERS V. FEDERATION OF PAKISTAN AND OTHERS, (Pak SC 2006).
24

The petition was taken up based on suo moto and a nine members bench for hearing was
established by the SC. Taking into accounts all points raised by the petitioner. Thus, the larger
bench of SC canceled the $362 million offer for the privatization of the steel mill and declared the
sale of the steel mill’s agreement as null and void. 73The report discloses the steel mill suffered a
loss of 79 billion rupees after the annulment of the privatization agreement by the SC. 74
In the Rental Power Plant Case (hereinafter referred to as RPP), the SC declared the RPP's
project as non-transparent because it is based on the heavy corruption of $ 5 billion. The SC further
found that RPP's project is violating Article 9 & 24 of the Constitution and also breaches the term
of the Transmission and Distribution of Power Act, 1997. 75
However, analysts criticize that the judgment of the SC also has some negative upshots. It was
alleged by the senior judicial officer that the extreme interference of the SC may hinder the free
and transparent investigation. The Asian Human Rights Commission reacted on the SC order to
arrest the prime minister and twenty-seven others in the RPPs scam, and termed it a violation of
the Article 9 and 10 A of the Constitution and further indicated that excessive exercise of the
judicial authority would produce political fraction in the country. 76
73
Id.
74
Kishwar Munir & Iram Khalid, Judicial Activism in Pakistan: A Case Study of Supreme Court Judgments 13-33
(2018).
75
THE RENTAL POWER PLANT CASE, SCMR 773 (Pak 2012).
76
Right to Fair Trial, Judicial System Statement document AHRC-025 http://www.humanrights.asia/news/ahrc-
news/AHRC-STM-025-2013 (last visited Apr. 7, 2020).
25

2.4 JUDICIAL ACTIVISM IN THE ERA OF CHIEF JUSTICE MIAN SAQIB
NISAR
The recently retired Justice Mian Saqib Nisar, who had done a staunch criticism on Iftikhar
Chaudhry era of judicial raj through suo moto powers, had himself begun the continual journey of
unnecessarily invoking Article 184(3) of the Constitution. 77
The tenure of CJP Saqib Nisar ended on January 17, 2018, but due to some of his decisions
and actions, he has left noteworthy impressions. In his time, he made significant judgments like
the acquittal of Asia Bibi and the establishment of the dam fund, where he had appreciated for
raising public concerns and welcomed for his action by people. There is a lot of criticism on his
actions as well, and the term judicial excessive is used for his active role. 78 Critiques say that the
SC is intervening in the affairs of the State by exceeding jurisdictional domain and exploiting
democratic principles. 79
The CJP Saqib Nisar even gone beyond Iftikhar Chaudhry’s excessive exercise of suo moto
powers, the reports show that from September 2018, the SC had determined over 70 suo moto
cases. 80 He has represented himself more as an elected politician who is impatient to evaluate the
role of parliament publicly rather than performing his institutional duty objectively. 81
CJP Saqib Nisar presented an even more extensive kind of judicial activism in the country.
It is criticized that he has almost turned every issue into a public matter and violation of basic
rights, with a little bit of creativity. As he was reportedly issuing strict guiding lines to the private
hospitals? He had ordered the litigants to charitably donate to the dam’s fund, against their desire.
77
Aitzaz Aslam Chaudhary, The Savior Syndrome 60 (2019).
78
Hammad Saleem, Judicial Activism: Definition, Pros, and Con 23-26 (2019).
79
Syed Jazib Shamim, A Review on Judicial Activism in Pakistan 34-39 (2018).
80
81
Umair Jamal, Democracy, and Judicial Activism in Pakistan 78-79 (2018).
26

As per some critics, the Sunday court was conducted by him to hear even private land disputes
between family members were termed subject of public importance. 82 The CJP has been seen
visiting hospitals, schools, and having himself notified in the developmental speed of infrastructure
projects rather than objectively and devotedly performing his obligations in the Constitutional
domain. 83 Thus, the judiciary by its proactive role has produced apprehensions in Pakistan and
also at the international level. The critics say that under the name of moto jurisdiction has taken up
all the matters i.e. social, economic, political, and constitutional. Judiciary needs to adopt the
approach of self-restraint rather than self-indulgence. Obedience to the democratic rule of
separation of powers absolutely, Pakistan can construct a strong democratic political system. 84
2.5 FACTORS RESPONSIBLE FOR THE PREVALENT PRACTICE OF
JUDICIAL ACTIVISM IN PAKISTAN
Judiciary from the recent past on account of sudden judicial intervention becomes the focal point
of controversy. The judicial intervention has been gradually increasing through the means of PIL.
The judiciary has taken up the responsibility to implement the fundamental rights of the poor and
people in a weak position in the society, by advanced interpretation and favorable action. It has
arranged just the standards of a process and made it easy for citizens to get justice. 85
Judicial activism has mainly resulted due to the bad performance of the executive and
legislature. For example, the cancellation of RPP's project is after the effect of the malpractices of
our government. 86 Furthermore, it is because of an ineffective and inactive system that leads to
corruption and foreign interference that influences our domestic affairs, and national politics. Since
82
83
Umair Jamal, Democracy, and Judicial Activism in Pakistan 78-79 (2018).
84
(2018).
85
Muhammad Faisal ul Islam, Judicial Activism in Pakistan 89 (2013).
86
Id.
27

the executive and its subsidiary divisions have become almost ineffective and nonresponsive to
the public interests, it definitely seem to be good when the country’s top judge takes Suo moto
actions against the inept and corrupt bureaucrats to protect the rights and interests of the people.
However, simultaneously, this is an unpleasant truth that a few apex court judges are unable to
control each public department in the country to correct its irregularities and ineptitudes in
governance. In addition to a large numbers of public sector regulators the apex court will definitely
not exercise the role of federal and provincial agencies like NAB, FIA, police, health department,
food department, etc. It certainly has no inbuilt capacity to perform these duties. 87
2.6 NEGATIVE IMPACT OF JUDICIAL ACTIVISM IN PAKISTAN
The practice of judicial activism excessively and over activity of the recent past is against the
standards of democracy and displays a preference for short-term popularity over the long-term
constitutional imbalance. 88 It destroys the core principles on which our Constitution and
democracy are based. 89 SC's excessive active role has the worst effects on democratic stability,
thus resulting in people having no more confidence in the governmental system and political
leadership. 90 The critics of judicial activism call it a misapplication of PIL. All aspects of the recent
action of the court were discussed in detail by national and international media. It was alleged by
several media reports that SC was instigating a campaign of judicial activism, opposing it against
an elected government. 91 The expanded use of original jurisdiction boosted workload and further
postpones the hearings pending before the SC. The recent regime of CJP Saqib Nisar's Activism
left behind bad impressions as he had played more of a dictator's role in his tenure. It seemed like
87
Muhammad Faisal ul Islam, Judicial Activism in Pakistan 90 (2013).
88
89
Tausif Kamal, Judicial Activism in Pakistan, 12 (2019).
90
Muhammad Faisal ul Islam, Judicial Activism in Pakistan 92-93 (2013).
91
Id.
28

the CJP's role is to comment on and intervene in the government's activities rather than performing
judicial affairs. He was engaged in bringing social reforms into society, while the hundreds of
thousands of cases were pending in the courts. If he has to decide everything then what is left for
the government to do.
CONCLUSION
Judicial activism is cooperative and useful in countries where the administration of and
government agencies are not responsive to public demands and no proper functioning of
constitutional orders. Due to this reason, common men appreciate the SC whenever it took Suo
moto action in the matter of public interest. The public accepted SC decisions in the cases where
they immediately acquire the relief. The SC’s judicial activism is however criticized by legal
analysts. According to them, on some occasions, the court went beyond its restrictions by
interfering in affairs that are not in its dominion and it violates the basic principle of separation of
powers between three government’s bodies.
29

CHAPTER III
ANALYSIS OF JUDICIAL ACTIVISM IN THE LIGHT OF
INTERNATIONAL LEGAL STANDARD
INTRODUCTION
Judicial activism has multiple meanings, but its correct and accurate content remains unclear.
Although the phenomena of judicial activism could not take much attention in International Law,
yet there are very few attempts that give definitions of the concept in the context of International
law. This chapter will define the notion of judicial activism under International Law and will
provide an analysis of international standards for exercising judicial activism. The form, nature,
and instances of exercising judicial activism in the jurisdictions of the US and India will be
discussed for comparative analysis with Pakistan’s judicial activism.
3.1 DEFINITION OF THE NOTION OF JUDICIAL ACTIVISM IN THE
CONTEXT OF INTERNATIONAL LAW
The foundation of the concept of judicial activism can be found in the "Theory of Social Want"
which exclaim that the emergence of judicial activism is by the reason of the failure of the existing
legislation to tackle the existing circumstances and troubles in the country and also because
executive exploitation and excesses that the judiciary had to interfere in the course of executive
and legislature. 92
The analysis of Robert Haws presents the definition of judicial activism in the context of
international law as "a tendency to impose on states legal limits or constraints not justified by the
92
30

strict rule of International Law." 93 According to HLA Hart “judges enjoy discretion only in areas
of penumbra, but the heart of the law is constituted by a highly constraining core which leaves no
room for discretion.16 In other words, there is little room in the law for extra-legal moves.” 94
3.2 PRINCIPLES OF JUDICIAL ACTIVISM IN INTERNATIONAL LAW
Pakistan is member state of United Nations (hereinafter referred as UN) a party to multiple
international human rights treaties and bound by the resolutions of the Security Council. Pakistan
also obliged to act to give effect to resolutions of the General Assembly and legal standards of the
UN. Pakistan may not rely domestic law’s provisions to justify failure to comply with its obligation
under its treaties. 95
In the sense of upholding the rule of law, the ICJ emphasizes, as a central duty of the
member of the judiciary, the obligation to take an active role in safeguarding human rights and
fighting impunity. In this regard, the ICJ acclaims the SC for its efforts to safeguard human rights
and to provide remedies and compensation to aggrieved persons affected from human rights
violation. 96
3.3 ANALYSIS OF INTERNATIONAL STANDARDS FOR EXERCISE OF
JUDICIAL ACTIVISM
Judicial activism has a strong foundation here significant examples of activism in the form of
judicial review. An active court of the US extends its powers in different manners. The most
93
Robert Howse, The Most Dangerous Branch? Two Appellate Body Jurisprudence on The Nature And
Limits of The Judicial Power 67-75 (2003).
94
Fuad Zarbiyev, Judicial Activism in International Law: A Conceptual Framework for Analysis, 3, JOURNAL
OF INTERNATIONAL DISPUTE SETTLEMENT, 24, Jul 8, (2012).
95
GABRIELA KNAUL, AUTHORITY WITHOUT ACCOUNTABILITY: THE SEARCH FOR JUSTICE IN PAKISTAN, ICJ,
11, 1-102, OCT (2013).
96
Id
31

prominent mode of institutional activism takes place when federal statutes are declared
unconstitutional by the courts. Such decisions make an immediate discord with and invoke a power
superior to the authority of the president and congress. Courts likewise clearly participate in
institutional activism when they widely exercise their power to proclaim precedent-based law or
innovatively practice the intensity of statutory interpretation to design considerable legitimate
principles. 97 Therefore, this exemplary case in which the US court has exercised an active role is
worth mentioning. Moreover, discussing judicial activism in Indian jurisdiction has significance
because India and Pakistan have almost the same Constitution and other substantive laws.
3.3.1 Study of Case Laws of Constitutional Jurisdiction of the US Courts
In the US judicial activism means how a judge is supposed to move toward exercising judicial
98
review. The expression of judicial activism was found in the concept of judicial review in the
landmark case of Marbury vs. Madison 99 the US judiciary, for the first time took an active step
and took a step above the legislative actions. Chief Justice John Marshal of the SC of US held that
any act of the government department which is contradictory to the Constitution is void and the
Constitution is above all the other laws of the country. The SC emphasized having the authority to
enforce the constitutional rights and issue writ of mandamus. Justice Marshal declared the
Judiciary Act of 1789 as unconstitutional. 100 A stance was taken by justice Marshall in this case
that SC has the power to resolve the conflict between two branches of the government, finally
made judicial activism possible.
97
Richard E. Levy & Robert L. Glicksman, Judicial Activism and Restraint in the Supreme Court's
Environmental Law Decisions, 42 VAND. L. REV. 7 (1898).
98
Elianna Spitzer, What is Judicial Activism 68-72 (2020).
99
MARBURY V. MADISON, 5 U.S. 137(1803).
100
MARBURY V. MADISON, 5 U.S. 137(1803).
32

In Brown Vs Board of Education case is another example of judicial activism where the
judiciary overturned the decision that “separate but equal” given in Plessey v. Ferguson 101 Case.
It was a landmark case of the US where the SC held that laws related to racial segregation in public
schools are not constitutional. 102Again in this case the SC took an active step by overlooking the
intention of the legislation and denying the doctrine of previous precedent “separate but equal”.103
In the case of Citizens United vs. Federal Election Commission, the SC took an active
step by declaring the provision of the Bipartisan Company Reforms Act as a violation of the First
Amendment of the US Constitution that protects freedom of speech while the provisions of the
said Act were restricting unions and corporations from independent political expenditures and
prohibiting the broadcasting of political communications on media. 104 The SC again in this case
protected the right of freedom of speech guaranteed in the First Amendment of the US Constitution
by declaring the restriction enacted in the said Act as unconstitutional.
The congress in 1960 enacted a series of statues to avert environmental dreadful conditions
and to bring progress in pollution control technology. The SC after perceiving administrative
reluctance in the execution of these laws used its power broadly to guarantee the fulfillment of
pro-environmental policy. An analysis of these decisions regarding environmental policy shows
the pro-development model in SC. While the SC shows institutional restraint in the bulk of its
environmental decision. However, judicial activism in these decisions was admired as the
environmental interests were not represented in the regulatory procedure and the SC’s intervention
101
PLESSEY V. FERGUSON, 163 U.S. 537 (1896).
102
BROWN VS BOARD OF EDUCATION U.S. 483 (1954).
103
PLESSEY V. FERGUSON, 163 U.S. 537 (1896).
104
CITIZENS UNITED VS. FEDERAL ELECTION COMMISSION, 558 US 310 (2010).
33

was required to offset the powerful interests favoring industrial progress at the expanse of
environmental protection. 105
The above-discussed cases of SC of the US demonstrate that the SC on the formally filed
petitions by the parties concerned uses its power of judicial review. The SC by exercising the
power of judicial review to check the constitutionality of acts of executive and legislation of
congress played a positive role in the constitutional matters between federal and federating
units. 106
3.3.2 The Indian Legal Standard for Practicing Judicial Activism
Indian SC plays an active role by using the tool of PIL. There are significant examples of PIL cases
in India for the protection of the fundamental rights of Indian citizens. 107The origin of public
interest litigation started in India in 1979 when prisoners of Bihar jail signed a petition and filed
in SC. The petition was regarding the poor condition of the prisoners of Bihar jail whose cases
were pending in the courts. The SC gave the decision to provide free legal aid to the prisoners and
order for the fast hearing of their cases 108. Resultantly, 40,000 prisoners were released from jail
and after that several petitions of similar kinds were filed and the term PIL was defined in Gupta
and others vs. Union of India 109 from the Indian perspective. 110
105
Richard E. Levy & Robert L. Glicksman, Judicial Activism and Restraint in the Supreme Court's Environmental
Law Decisions,43 VAND. L. REV. 8 (1898).
106
(2018).
107
Rajagopal Krishna das, Starting the PIL Revolution 35-42 (2014).
108
HUSSAINARA KHATOON V. STATE OF BIHAR, SCR, 532, (1979).
109
GUPTA AND OTHERS VS. UNION OF INDIA, AIR, SC, 149 (1982).
110
Rajagopal Krishna das, Starting the PIL Revolution 35-42 (2014).
34

Thus, a person can file a petition for interest litigation under Article 32 of the Indian
Constitution in SC, under Article 226 of the Constitution in the High Court, and under Section 133
of the Code of Criminal Procedure of India. 111
However the concept of PIL is based on the traditional rule of “Locus Standi” means a
party or person has automatic standing in law to sue someone or any authority or organization who
is causing harm to the public, 112 and the person who files a petition for public interest has to satisfy
the court that there is actual infringement of public rights or interest and it is not just for monetary
interest. 113 For preventing the misuse of PIL, the Indian SC on December 1, 1988, set guidelines
for entertaining Letters/Petitions Received by it as PIL and modified them in 1993 and 2003. And
in 2008 the ministry of law and justice set up a law regulating PILs. 114 It allows cases of bonded
labors, neglected children, nonpayment of minimum wages, and entertains petitions against police
for refusing to register a case, harassment by police and death in police custody. Moreover, it
allows petition regarding environmental pollution, disturbance of ecological balance, drugs, food
adulteration, and maintenance of heritage and culture, antiques, forest and wildlife, and other
matters of public importance. 115
3.4 COMPARATIVE ANALYSIS OF PAKISTAN, US, AND INDIAN
STANDARDS FOR EXERCISING JUDICIAL ACTIVISM
The above-mentioned cases of US SC are exemplary cases of judicial activism. These cases have
significance in US judicial activism and can be taken as an example that how a court of any
jurisdiction should play an active role in the matter of the protection of the fundamental rights of
111
Pritam Kumar Gosh, Judicial Activism and Public Interest Litigation in India 77 (2018).
112
Lee Evan & Mason Ellis Josephine, The Standing Doctrine's Dirty Little Secret 169 (2012).
113
Pritam Kumar Gosh, Judicial Activism and Public Interest Litigation in India 77 (2018).
114
115
Id.
35

its citizens. The SC in these cases has played an important role to outline constitutional limits
between the federal government and the federal states. 116
The court, by underlining the unconstitutional acts of Congress has enforced fundamental
rights guaranteed in the Constitution. 117 It also prevented itself from intervening in the authority
of other state forums. It also accommodated the government and congress by rescuing them from
the acts which were otherwise impossible due to political, social, and commercial reasons. 118
The Indian judiciary is the best example regarding the practice of judicial activism as to its
form and dimension mentioned in the Constitution. The Indian judiciary exercises an active role
through PIL based on Locus Standi. Judicial activism of the Indian judiciary made active the
executive and legislature and various new laws have been made after the direction of SC, for
example, Consumer Protection Act, 1986, The Environmental (Protection) Act, 1986, Protection
of Human Rights Act, 1993, etc. The Indian judiciary took active steps in the instance of different
fields and several enactments have been made on gender jurisprudence, social uplift of lower castes
protection of human rights, and environments in India. 119
116
MCCULLOCH V. MARYLAND, 17, U.S., 316, (1819) 4 L.Ed. 579.
117
Citizens United v. Federal Election Commission, Appeal from the United States District Court for the District of
Columbia No. 08–205. (2010).
118
BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483, 74 (1954).
119
36

3.5 GAPS AND FLAWS IN PAKISTAN’S JUDICIAL ACTIVISM
There is no clear mention of the exact criteria regarding the judiciary's active role. Although Article
184(3) empowers SC with original jurisdiction and provides that if there is any question of public
importance regarding fundamental rights provided in Chapter I of the Constitution, the court can
take suo moto action but if it is noticed the SC's active role there is an overreach of the power.
However, if the practical approach of the courts is observed, it appears that SC’s approach if the
original jurisdiction of SC is compared with Indian SC, it is observed that Article 32 of the Indian
Constitution provides that individuals have the right to move to the SC when they feel that their
right are being deprived unless there is some constitutional amendment, the right guaranteed by
this Article cannot be suspended. Thus, Article 32 of the Indian Constitution gives the wider scope
of protection of public interest and Article 184(3) limits the SC jurisdiction to the fundamental
rights provided in Chapter I of the Constitution while the SC exceeds its jurisdiction and goes into
a political direction. There are no guidelines available in the Constitution about the range of suo
moto power of the court that in what matters SC can take an action because the provision of Article
184(3) of Pakistani Constitution limits the scope of PIL.
CONCLUSION
The above-discussed cases of the US SC are significant examples regarding the judiciary’s active
role and these examples can be taken as the best standards of judicial activism. The US, SC
exercises activism in the form of judicial review to protect the fundamental rights of citizens from
exploitation. Indian judiciary has an even more standard form of judicial activism. The Indian
courts play an active role based on PIL on the prerequisite of Locus Standi, and the Indian SC also
set up some guidelines for interest litigation to prevent the misuse of it. In Pakistan, SC plays an
active role based on the suo moto. The SC takes suo moto based on a petition filed by any individual
37

or without the petition. In Pakistan, the situation of the practice of judicial activism is not subjected
to praise and appreciation. As in the last two regimes, the SC is alleged for exceeding its original
jurisdiction and that was because of gaps and flaws in our law which gives the power of original
jurisdiction to the SC.
CHAPTER IV
RECOMMENDATIONS AND CONCLUSION
RECOMMENDATIONS
The following recommendations are given:
38

1. There is a need to amend Article 184(3) by adding text as mentioned in Article 32 of the
Indian Constitution that provides the right to individuals to invoke the jurisdiction of SC if
their rights are being violated.
2. There is another solution to put for SC in the exercise of judicial activism that the guidelines
as to what extent the SC can exercise suo moto power to be added in Schedule. The
guidelines, just like the Indian judiciary formulated certain guidelines about PIL.
3. The principle of “Locus Standi” must be added in the text related to the original jurisdiction
of SC, so that SC can establish the right of parties to go for interest litigation in SC.
4. The judiciary must be compelled under the law to avoid departing from or compromising
the primary judicial responsibility of deciding cases according to the law.
5. The judiciary must be bounder by under the law to decide cases according to the intent of
the legislature.
6. The judiciary must be compelled under the law to leave the policy making to the elected
government because courts are not accountable as they are not elected.
7. There is need for a transparent guiding principle on how the SC takes up cases enjoying its
original jurisdiction, the court’s decision to give priority to certain cases related to violation
of human rights over others at times seems arbitrary.
CONCLUSION
This research was aimed at analyzing the exercise of judicial activism in Pakistan by comparing it
with the international legal standard of exercising judicial activism. Due to the recent wave of
judicial activism in Pakistan, there is considerable debate on its merits and demerits. The concept
39

of judicial activism is found almost all over the world in various forms and procedures, and in
every country, it is there to protect the fundamental rights of the people and public interest.
In Pakistan SC plays an active role on basis of original jurisdiction for the protection of
fundamental rights provided in the Constitution. The power of original jurisdiction is mentioned
in Article 184(3) of the Constitution. To invoke the said Article the SC takes suo moto action on
the petition of a private party or by its motion. In Pakistan, the active role of the judiciary is
subjected to criticism particularly in the tenure of CJP Iftikhar Muhammad Chaudhry and CJP
Saqib Nisar. The two recent regimes of SC are criticized for overreaching the power of original
jurisdiction. Although the SC in these two regimes in many cases played an active role that is
appreciable and has positive impacts, there are also have some matters in which SC took steps that
are not in its jurisdiction.
It is concluded that judicial activism is needed for the public interest and social want, but
it must be exercised with true spirit and free from political biases. It should also be according to
the will of the people and based on public interest so that different organs can work effectively in
their domains without unnecessary and unconstitutional interference.
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45

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Prevailing Practice of Judicial Activism in Pakistan: A Legal

Analysis in the Light of International Standards

Submitted By: Noreen Siddique

Registration Number: 2015-LLB-017

Fatima Jinnah Women University, Rawalpindi

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the degree of Bachelor of Laws (LLB)

Ms. Zainab Iqbal

Fatima Jinnah Women University

The Mall, Rawalpindi

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All rights Reserved.

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I, Noreen Siddique as a student at Fatima Jinnah Women University, Rawalpindi, hereby

Date: November 2020

Supervisor Name: Ms. Zainab Iqbal

Name & Signature of Student: Noreen Siddique

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love in every phase of my life.

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1. BROWN VS BOARD OF EDUCATION U.S. 483 (1954)

2. CASSIS DE DIJON CASE, C-120178, (1979)

4. DISTRICT OF COLUMBIA VS. HELLER554 U.S 570 (2008)

5. HOLLINGSWORTH VS. PERRY, 570 U.S, 693 (2013)

6. MARBURY V. MADISON, 5 U.S. 137(1803)

7. MCCULLOCH V. MARYLAND, 17, U.S., 316, (1819)

8. OBERG FELL VS. HODGES, 570, U.S, 644 (2015)

9. ROE V. WADE, 410 U.S, 113 (1973)

4. PRIVATIZATION OF PAKISTAN STEEL MILL CASE (2005)

5. SUO MOTO CASE REGARDING THE COMBATING OF CORONAVIRUS, No.01 (2020)

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AIR All Indian Review

CJP Chief Justice of Pakistan

ECJ European Court of Justice

PIL Public Interest Litigation

PLD Pakistan Law Digest

RPP Rental Power Plant

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constitution of the Islamic Republic of Pakistan, 1973. In Pakistan, because of unreasonable

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judiciary's hyperactive role.

activism in Pakistan used by SC is excessive as it deteriorates the basic principle of the

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undo the tasks of the executive.

“Sanaa Ahmed” in her research article “Supremely Fallible? A Debate on Judicial

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a solution to curb this issue in the light of the constitutional domain.

“Muhammad Raheem Awan” in his research article “Judicial Activism in Pakistan in

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the contemporary practices of judicial activism in Pakistan.

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the idea of legal activism in Pakistan and to fundamentally analyze it.

concerning judicial activism in Pakistan?

the current scenario of the active role of the judiciary in Pakistan.

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Chapter IV winds up the examination with recommendations and conclusion.

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INTRODUCTION TO JUDICIAL ACTIVISM

1.1 WHAT IS JUDICIAL ACTIVISM?

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the elected legates of the people.” 10