Supreme Court’s Discretionary Public Interest Litigation Jurisdiction in Constitutional Petitions: Tracing the Problem

Abstract

The Constitution of Islamic Republic of Pakistan, 1973(Constitution, 1973) structured on ‘social contract’ postulate, primarily has two major implications namely, the ‘governmental sovereign legitimacy’ and ‘guaranteeing of fundamental rights’. However, these rights could not have been protected properly over the years for lego-political and socio-economic reasons. Whereby, the ‘sovereign legitimacy’ of government has been influenced constantly. Since, to avoid such critical situation, the judiciary being bound as ‘sovereign delegatee’ rightfully developed the strategy of Public Interest Litigation (PIL) for protecting these rights. Such strategy is in fact the outcome of constitutional interpretation for which judicial review is used as modus operandi. However, interpretative approaches of ‘judicial restraint’ and ‘judicial activism’ both are suffered either with ‘pro-majoritarian’ or ‘counter-majoritarian’ difficulty, and are influencing constitutional democracy and supremacy respectively. This all is arguably because of the lack of a judicious criterion for interpretation. This situation ultimately influences proper protection of fundamental rights, the objective of the PIL.