IN THE SUPREME COURT OF PAKISTAN

(ORIGINAL JURISDICTION)

PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ

MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN

HUMAN RIGHTS CASE NO.17599 OF 2018

(Regarding alarming high population growth rate in
the country)

In attendance: Mr. Anwar Mansoor Khan, Attorney General

Syed Nayab Hassan Gardezi, DAG
Mr. Tariq Mehmood Jehangiri, A.G. Islamabad
Mr. Sibtain Mehmood, AAG, Sindh
Mr. Zahid Yousaf Qureshi, Addl. A.G. KP
Mr. Ayaz Swati, Addl.A.G. Balochistan
Mr. Qasim Ali Chowhan, Addl. A.G. Punjab
Cap. Retd. Zahid Saeed, Secretary M/o NHS&RC
Mr. Imran Gichki, Secy. Population Balochistan
Mr. Abdul Ghaffar, D.G. Population Welfare
Department, Govt. of Pakistan
Mr. Asghar Ali, Secy. Population, KP
Mr. Fazal Nabi Khan, DG, PW, KPK
Mr. Muhammad Jahangir for PBS, ILD
Mr. Muhammad Riaz for PBS, ILD

Date of hearing: 03.01.2019

...
JUDGMENT
MIAN SAQIB NISAR, CJ.– As of 2017, Pakistan is ranked as

the fifth most populous nation in the world, with a population of over 200

million. While all nations and economies rely on population growth and a

creation of future younger generations, such growth must be sustainable

and proportionate to the resources available. Approximately 14,000 babies

are born in Pakistan which is already struggling to feed, educate and

provide employment for its existing population. Pakistan has experienced

unchecked population growth since its creation in 1947. From 1998 (the

previous comprehensive census) to 2017, Pakistan’s population has increased by

57%, with the addition of approximately 76 million people to the

population. Projected growth trends from the United Nations suggest that if

this population growth rate does not slow considerably, Pakistan can

expect to have its population increase by 50% resulting in an estimated 306

million people, surpassing the United States, Indonesia, Brazil, and Russia
H.R.C. No.17599/2018 -2-

to become the world's third largest country in terms of population trailing

behind India and China. The steadily increasing population rate in Pakistan

is a ticking bomb which will certainly not wait till it is convenient for us to

take note of it. What will follow this population explosion is starvation,

famine and poverty, the likes of which are already visible in areas like Thar.

Other indicators of overstretched resources and infrastructure are apparent

in Pakistan’s unemployment rate, maternal and child mortality rate,

literacy and educational enrolment figures, and access to clean water and

adequate food. A brief overview of the above figures reveals the extent of the

resource and infrastructure shortcomings for an already large populace.

Pakistan currently has a very high mortality rate for children under the

ages of five years (75 deaths per 1000 live births), an above average maternal

mortality rate (178 deaths per 10,000 births), and approximately 44% of the

population lacks access to clean drinking water. Furthermore, Pakistan’s

literacy rate is 58% while over 22 million children are out-of-school. Future

projections indicate the number of educational institutions to reduce in

number. The above figures make it clear that Pakistan is not equipped to

handle the addition of another 100 million people to its ranks.

2. After the Proclamation of Teheran, 19681 (Proclamation) at the

1968 International Conference on Human Rights, ‘family planning’ was

recognised by the international community as both a right and a means of

enabling other human rights. In this regard, paragraphs 16 and 17 of the

Proclamation are relevant which read as under:-

“16. The protection of the family and of the child remains

the concern of the international community. Parents have a
basic human right to determine freely and responsibly the
number and the spacing of their children;

1
Pakistan was amongst the 84 members who adopted the Proclamation of Teheran by consensus on
13.05.1968. The Proclamation affirmed, for the first time in a global agreement, the basic right of parents “to
determine freely and responsibly the number and the spacing of their children” (paragraph 16).
H.R.C. No.17599/2018 -3-

17. The aspirations of the younger generation for a better

world, in which human rights and fundamental freedoms are
fully implemented, must be given the highest encouragement. It
is imperative that youth participate in shaping the future of
mankind;”

As obvious from the language of the above reproduced paragraphs, the

right to freely and responsibly determine the number and spacing of

children involves imparting sufficient information and means to the parents

to control reproduction as well as providing them with adequate knowledge

regarding the advantages and disadvantages of such determination. Also

apparent from the above language is the interdependence of planned births

with the right of the younger generation to be afforded all fundamental and

human rights recognised by the international community. Thus, the right

to well-informed and controlled pregnancies is a right that paves the path

for enabling several other rights; for an overburdened economy cannot be

expected to juggle with a growing population while struggling to provide a

better facilities and opportunities for its progeny. This right, which forms

part of the international commitments of Pakistan, originates from the right

to life under Article 9 of the Constitution of the Islamic Republic of

Pakistan, 1973 (Constitution), and other fundamental rights such as the right

to education, equality, speech, information and due process (Articles 4, 25, 25-

A, 19, 19-A and 10-A of the Constitution respectively), which are in turn inevitably

linked to the economic progress of the State expected to make such rights

available to its people. Unfortunately, by failing to prioritise the provision of

information and means of controlling unplanned and unwanted births, the

country now faces a surplus of unskilled and unemployed manpower for

whom basic human and fundamental rights are luxuries they can at best

only hope for, but never attain.

3. As the guardians of the fundamental rights of the people of

Pakistan, this Court has for decades safeguarded the fundamental rights
H.R.C. No.17599/2018 -4-

guaranteed under the Constitution, and in pursuance of the above

mentioned international commitment, recognised that such rights cannot

be severed from principles of socio-economic progress under Articles 37

and 38 of the Constitution. As aptly observed by this Court in Miss Benazir

Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416):-

“Articles 3, 37 and 38 of the Constitution juxtapose to

advance the cause of socio-economic principles and should
be given a place of priority to mark the onward progress of
democracy. These provisions become in an indirect sense
enforceable by law and thus, bring about a phenomenal
change in the idea of co-relation of Fundamental Rights and
directive principles of State Policy. If an egalitarian society is
to be formed under the rule of law, then necessarily it has to be
by legislative action in which case it would be harmonious and
fruitful to make an effort to implement the socio-economic
principles enunciated in the Principles of Policy, within the
framework of the Fundamental Rights, by enlarging the scope
and meaning of liberties, while judicially defining them and
testing the law on its anvil and also, if necessary, with the
co-related provisions of the Objectives Resolution which is
now a substantive part of the Constitution.

The liberties, in this context, if purposefully defined, will

serve to guarantee genuine freedom; freedom not only from
arbitrary restraint of authority, but also freedom from want,
from poverty and destitution and from ignorance and
illiteracy. That this was the purport of the role of the rule of
law which was affirmed at Lagos in 1961 in the World Peace
Through Law Conference:

“Adequate levels of living are essential for full

enjoyment of individual's freedom and rights.
What is the use of freedom of speech to
under-nourished people or of the Freedom of
Press to an illiterate population. The rule of
law must make for the establishing of social,
economic and cultural conditions which
H.R.C. No.17599/2018 -5-

promote men to live in dignity and to live with

aspirations””
[Emphasis Supplied]
Fortified with the above cited paragraph, we are inclined to conclude that

fundamental rights such as the right to free speech or information are of no

use to those struggling with malnutrition, hunger and starvation. Economic

prosperity is thus a sine quo non for the implementation of all fundamental

rights, the paramount right being that of life. A plethora of judgments of

this Court have sufficiently emphasised that Article 9 of the Constitution

does not merely protect the right to ‘exist’ or ‘live’ but embodies the right to

live a meaningful life with a minimum standard of living. In Ms. Shehla Zia

and others Vs. WAPDA (PLD 1994 SC 693) it was held that:-

“The word ‘life’ has not been defined in the Constitution but it
does not mean nor can it be restricted only to the vegetative or
animal life or mere existence from conception to death. Life
includes all such amenities and facilities which a person born
in a free country, is entitled to enjoy with dignity, legally and
constitutionally.”

4. Similarly in the judgment passed in Suo Motu Case No.19 of

2016 (2017 SCMR 683) it was held that “[t]he Fundamental Right to life (Article

9), includes the right to adequate and safe drinking water and basic health care”. In Pir

Imran Sajid and others Vs. Managing Director/General Manager

(Manger Finance) Telephone Industries of Pakistan and others (2015

SCMR 1257) and Abdul Wahab and others Vs. HBL and others (2013

SCMR 1383) Article 9 of the Constitution was held to include a right to

livelihood. In the judgments reported as Barrister Zafarullah Khan Vs.

Federation of Pakistan (2018 SCMR 2001), General Secretary, West

Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum Vs. The

Director, Industries and Mineral Development, Punjab, Lahore (1994

SCMR 2061), Suo Motu Case No.10 of 2010 (Contamination of Water of

Mancher Lake due to Disposal Effluent from MNV Drain now converted
H.R.C. No.17599/2018 -6-

into RBPOD) (2011 SCMR 73), Shahab Utso Vs. Government of Sindh

through Chief Secretary and other (2017 SCMR 732), Shehla Zia’s case

(supra) the said Article was held to include the right to safe drinking water

and a safe and health-friendly environment. In OGRA through Secretary

Vs. Midway II, CNG Station (2014 SCMR 220) and Iqbal Zafar Jhagra

and Senator Rukhsana Zuberi Vs. Federation of Pakistan (PTD 2014 SC

243) the said fundamental right was held to include the right to provision

of electricity and gas. In Younas Abbas Vs. Additional Sessions Judge,

Chakwal (PLD 2016 SC 581) and National Engineering Services

Pakistan [NESPAK] (Pvt.) Limited Vs. Kamil Khan Mumtaz (2018 SCMR

211) the right to life was interpreted in the following terms:-

“It is now well established that right to life as envisaged by

Article 9 of the Constitution includes all those aspects of life
which go to make a man’s life meaningful, complete and
worth living. In the case of Employees of Pakistan Law
Commission v. Ministry of Works (1994 SCMR 1584), it has
been laid down that Article 9 of the Constitution which
guarantees life and liberty according to law , is not to be
construed in a restrictive manner. Life has larger concept
which include the right of enjoyment of life, maintaining
adequate level of living for full enjoyment of freedom and
rights.”
[Emphasis supplied]

In the recent judgment of this Court passed in Barrister Zafarullah Khan

Vs. Federation of Pakistan etc. (Constitution Petition No.57/2016 etc.)

wherein the Federal Government was directed to construct the Diamer-

Bhasha and Mohmand Dams, the right to life and the importance of water

in this regard was elucidated in the following terms:-

“For the last several decades, there has been reference to the
right to clean water, as stemming from the right to life
enshrined in the Constitution as a fundamental right. On a
national level, various judgments including those reported as
H.R.C. No.17599/2018 -7-

General Secretary, West Pakistan Salt Miners Labour Union

(CBA) Khewra, Jhelum Vs. The Director, Industries and
Mineral Development, Punjab, Lahore (1994 SCMR 2061),
Suo Motu Case No.10 of 2010 (Contamination of Water of
Mancher Lake due to Disposal Effluent from MNV Drain
now converted into RBPOD) (2011 SCMR 73) and Shahab
Utso Vs. Government of Sindh through Chief Secretary and
other (2017 SCMR 732) robustly discuss how clean and safe
drinking water is necessary for the existence of life, and that
contaminated and polluted water poses a threat to human
existence. The oft-quoted words of Saleem Akhtar, J. in the
case of Ms. Shehla Zia and others Vs. WAPDA (PLD 1994
SC 693), where the immediate context was regarding the
hazards of electromagnetic fields, are equally germane here:-

“Article 9 of the Constitution provides that no

person shall be deprived of life or liberty save
in accordance with law. The word ‘life’ is very
significant as it covers all facets of human
existence. The word ‘life’ has not been defined
in the Constitution but it does not mean nor
can it be restricted only to the vegetative or
animal life or mere existence from conception
to death. Life includes all such amenities and
facilities which a person born in a free
country, is entitled to enjoy with dignity,
legally and constitutionally.”

Therefore water is a resource to which everyone is entitled, is

indispensable to those who wish to lead a dignified life, and
forms the basis of many other rights including the right to life,
health and quality of life. It is a fundamental right that
emanates from the right to life enshrined in Article 9 of the
Constitution…”
[Emphasis supplied]

As evident from the above precedents, it is by now established law that the

right to life includes a right to basic amenities and living standard, access

to clean drinking water, electricity, employment etc. and there is no

denying that the same is heavily dependent on the economic progress of the
H.R.C. No.17599/2018 -8-

country which suffers a constant handicap on account of the rapidly

growing population. Poverty is thus deeply intertwined with each

fundamental right guaranteed in the Constitution, since divorced from an

economically thriving environment, there remains no meaning of the

fundamental right to life as explained above, nor can other fundamental

rights be implemented in their true letter and spirit. The threat of over-

population, or “population explosion” is a doom the country is unknowingly

moving towards if a national crusade for population control is not launched

in time. It is an unfortunate reality that the earth is becoming too small to

accommodate our growing numbers and its resources are rapidly

decreasing at an alarming rate. This is not only adversely affecting the

general quality of life but also threatening the mere existence of life on

earth. Hence in pursuance of its duty to safeguard the fundamental rights

of the people which is inseparable from socio-economic progress, the

Supreme Court has suo moto commenced this long and hard but necessary

journey to control the rate at which our population is multiplying.

5. Pakistan’s family planning programme began with private

sector initiatives in 1953 and expanding to include public sector support

and involvement in the early 1960s onwards. In 1953 the Family Planning

Association of Pakistan was established and received a lukewarm response

from the Government. However, in 1959 General Ayub Khan attended an

Family Planning Association of Pakistan (FPAP) conference and spoke about

the need to combat overpopulation. In 1965, with the introduction of the

third 5-year plan, family planning received renewed funding and support

from the public sector. In the late 1970s the family planning programme fell

prey to opposition from General Zia Ul Haq, who opposed publicising or

expanding the programme due to religious opposition. The next major step

forward came in 1990 with the introduction of a new National Health Policy

which required all healthcare outlets to provide family planning services. A

social action programme was developed which incorporated family planning

H.R.C. No.17599/2018 -9-

in tandem with rural development, education, and sanitation efforts. An

ongoing issue with the previous decades of the family planning programme

was the high degree of centralization which has undoubtedly damaged the

effectiveness of such programmes. Although Pakistan had success in

increasing contraceptive use in the 1980s and 1990s, a plateau was

ultimately reached. The contraceptive prevalence rate (CPR), or the

percentage of married, non-pregnant women using both modern and

traditional methods of contraception, rose from 12% in 1990-91 to 28% in

2000-01, but between 2000 and 2009, there was hardly any change in CPR

which was 30% in 2000 and remained unchanged in 2006. In 2012,

Pakistan made a commitment to Family Planning 2020 (a global partnership to

empower women and girls by investing in rights-based family planning). A number of service

providers are trained to dispense contraceptives, fit intrauterine devices

(IUDs), or advise on other birth control measures. Although two other

Muslim countries, Iran and Bangladesh, had simultaneously launched

population control campaigns during the 1970s (examined later in this opinion),

they had remarkable success in such efforts while the campaign in

Pakistan miserably failed and thereafter for decades the subject of family

planning remained a taboo for elected governments whose five-year plan

could never accommodate population planning initiatives.

6. Therefore, in the absence of policy initiatives to curb the

startling population growth and in our capacity as the guardians of the

fundamental rights guaranteed by the Constitution, this Court was

constrained to help relaunch this campaign. Initially when this Court took

cognizance of the instant matter, the Federal and all the Provincial

Governments (including the respective Chief Secretaries) were required to file their

concise statements. The learned Attorney General for Pakistan, the learned

Advocates General of all the Provinces and other stakeholders unanimously

agreed that a uniform policy for all the Provinces is required to control the

population of Pakistan. A Task Force was constituted comprising of the

H.R.C. No.17599/2018 - 10 -

persons mentioned below, to prepare a policy for this Court’s

consideration:-

i. Secretary, Inter-Provincial Coordination (Chairman);

ii. Director General Population, Ministry of National Health
(Member);
iii. Secretaries, Population & Welfare of all Provinces (Members); and
iv. Director General, Population of all Provinces (Members).

The said Task Force submitted its report and after lengthy deliberations, a

Committee was constituted comprising of the names and having the Terms

of Reference (TORs) proposed by Capt. (R) Zahid Saeed, Secretary, Ministry

of National Health Services, Regulations and Coordination who was

appointed as the convener of the meetings authorized to co-opt any other

person on account of their expertise in the matter and modify/add the

TORs as deemed necessary. The said Committee submitted a

comprehensive report in which Recommendations (hereinafter referred to as the

“Recommendations” reproduced later in this opinion) have been made to curb the

alarming population growth rate in Pakistan. In order to sensitize the

matter and to increase public awareness on the issue, the print and

electronic media was also directed to print and broadcast the

Recommendations continuously for three days free of cost. Thereafter, the

Council of Common Interests (CCI) held its meeting which ultimately

approved the Recommendations submitted to this Court. Additionally, a

symposium was held by the Law & Justice Commission of Pakistan (LJCP)

and the Ministry of National Health Services, Regulations & Coordination

(Population Programme Wing) wherein valuable suggestions have been

made by experts, academics, religious scholars and social activists (which

shall be examined below). Subsequently, on 29.12.2018, this initiative of

relaunching a nationwide population planning campaign, alongwith the

Recommendations, received unanimous endorsement from the elected

representatives from all Provinces, major political parties and religious

H.R.C. No.17599/2018 - 11 -

scholars at a national dialogue organized by the Population Council. Before

dilating upon these Recommendations, we deem it expedient to provide a

brief overview of efforts made by other countries including Iran,

Bangladesh, India and China in this crusade for population control and

planning and examine the role of the legislature, executive, judiciary, public

functionaries and other stakeholders in this arduous task.

7. The Islamic Republic of Iran:- In Iran, in less than one

generation the population growth rate of 4.06% in 1984 fell to 1.15% in

1993 and a total fertility rate of 6.4 births per woman in 1984 declined to

1.9 in 2010. The reason behind this was a development plan passed by the

Iranian Parliament in 1989, which included a birth control programme, as

a part of which, inter alia a huge media campaign was initiated to

encourage women to space their pregnancies for three to four years, to limit

the number of children to two, and to avoid pregnancy under the age of 18

and above 35. Following this the Iranian Parliament removed previous

incentives for high fertility and clergy bodies and the judicial system issued

the authorisation for family planning and supported the policy. In 1993, the

Iranian legislature passed a law regarding family planning which, inter alia,

provided for incentives for smaller families including for instance some

social benefits for the first three children in a family. The said law focused

on reducing infant mortality, promoting women’s education and

employment, and extending social security and retirement benefits to all

parents so that they no longer consider children as cushions/security for

their old age. The magnitude of success received by this family planning

program can be accredited to the government-backed awareness,

information and education program in this regard and to a health care

delivery system that was able to meet reproductive health needs. The

Ministry of Health of Iran established pre-marital counseling classes

throughout the country which the government made mandatory for couples

planning to marry to participate in before they could receive their marriage

H.R.C. No.17599/2018 - 12 -

license; population education became part of the curriculum at all

educational levels; university students were required to take a course on

population and family planning; and family planning services were provided

for free by the country’s primary health care system, which is based on

different levels of care and an established referral system. In rural areas,

the Ministry of Health and Medical Education is the main provider of health

care services, and trained health workers proactively provide door-to-door

family planning related information and services. In urban areas on the

other hand health services are largely provided by the private sector which

equally play a significant role in awareness and services for family

planning. In order to increase and meet the supply of modern

contraceptives, many are now manufactured in Iran, in fact the only

condom factory in the entire region is in Iran, which exports its products to

neighboring and Eastern European countries. As a result of these

measures, today 74% of married women in Iran between the ages of 15 to

49 practice family planning; 60% use a modern method; and one-third of

modern contraceptive users have relied on a permanent method, i.e., female

or male sterilization.

8. The Republic of India:- In India, legislative efforts to curb

population growth began as early as 1994 when for example, under Section

175(1)(q) of the Haryana Panchayati Raj Act, 1994, any person having more

than two children was deemed to be disqualified from being a member of

the Gram Panchayat, Panchayat Samiti or Zila Parishad. When the

constitutionality of the said provision was assailed before the Indian

Supreme Court, it was upheld in the judgment of Javed & Others Vs.

State of Haryana & Others [2003 (8) SCC 369] recognising that the

purpose behind such legislation is inter alia to popularize the Family

Welfare/Family Planning Programme which was in line with the National

Population Policy holding that “In our view, disqualification on the right to contest an

election by having more than two living children does not contravene any fundamental right
H.R.C. No.17599/2018 - 13 -

nor does it cross the limits of reasonability. Rather it is a disqualification conceptually

devised in national interest.”. The importance laid by the Indian Supreme Court

on the implementation of the population control policy to secure the

fundamental rights of the people of India is evident from the following

paragraph of the judgment supra:-

“…Reasonableness and rationality, legally as well as

philosophically, provide colour to the meaning of fundamental
rights and these principles are deducible from those very
decisions which have been relied on by the learned counsel for
the petitioners. It is necessary to have a look at the population
scenario, of the world and of our own country.

The torrential increase in the population of the country is one of the

major hindrances in the pace of India's socio- economic progress.
Everyday, about 50,000 persons are added to the already large
base of its population…It is a matter of regret that though the
Constitution of India is committed to social and economic justice
for all, yet India has entered the new millennium with the largest
number of illiterates in the world and the largest number of people
below the poverty line. The laudable goals spelt out in the Directive
Principles of State Policy in the Constitution of India can best be
achieved if the population explosion is checked effectively.
Therefore, the population control assumes a central importance for
providing social and economic justice to the people of India (Usha
Tandon, Reader, Faculty of Law, Delhi University, - Research
Paper on Population Stabilization, Delhi Law Review, Vol. XXIII
2001, pp.125-131). In the words of Bertand Russell, "Population
explosion is more dangerous than Hydrogen Bomb." This explosive
population over-growth is not confined to a particular country but
it is a global phenomenon. India…has the population problem
going side by side and directly impacting on its per capita income,
and resulting in shortfall of food grains in spite of the green
revolution, and has hampered improvement on the educational front
and has caused swelling of unemployment numbers, creating a new
class of pavement and slum-dwellers and leading to congestion in
urban areas due to the migration of rural poor. (Paper by B.K.
Raina in Population Policy and the Law, 1992, edited by B.P. Singh
Sehgal, page 52)…
H.R.C. No.17599/2018 - 14 -

…The above facts and excerpts highlight the problem of population

explosion as a national and global issue and provide justification
for priority in policy-oriented legislations wherever needed…

…Fundamental rights are not to be read in isolation. They have to

be read along with the Chapter on Directive Principles of State
Policy and the Fundamental Duties enshrined in Article 51A. Under
Article 38 the State shall strive to promote the welfare of the people
and developing a social order empowered at distributive justice -
social, economic and political. Under Article 47 the State shall
promote with special care the educational and economic interests of
the weaker sections of the people and in particular the
constitutionally down-trodden. Under Article 47 the State shall
regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its
primary duties. None of these lofty ideals can be achieved without
controlling the population inasmuch as our materialistic resources
are limited and the claimants are many. The concept of sustainable
development which emerges as a fundamental duty from the several
clauses of Article 51A too dictates the expansion of population
being kept within reasonable bounds.”

Another illustration of legislative efforts to combat the menace of growing

population can be found in the judgment of Air India Vs. Nergesh Meerza

and Others [(1981) 4 SCC 335] where the rapid multiplication of

population was judicially noticed and the constitutional validity of

legislative means to check the population was upheld as the Indian

Supreme Court found no fault with the rule which would terminate the

services of air hostesses on the third pregnancy with two existing children,

holding the rule to be both salutary and reasonable for two reasons:-

"In the first place, the provision preventing a third pregnancy

with two existing children would be in the larger interest of the
health of the Air Hostess concerned as also for the good
upbringing of the children. Secondly…when the entire world
is faced with the problem of population explosion it will not
H.R.C. No.17599/2018 - 15 -

only be desirable but absolutely essential for every country to

see that the family planning programme is not only whipped
up but maintained at sufficient levels so as to meet the
danger of over-population which, if not controlled, may lead
to serious social and economic problems throughout the
world.”

The foregoing extracts clearly reflect the conviction and certitude of the

legislature and the judiciary that the national interest of India lay in

population control of the severity that disqualifications from elections and

posts etc., was deemed to be an appropriate and necessary measure to

enforce India’s two-child policy. For breach of the two-child norm several

states put together a package of punitive measures including exclusion

from elections, exclusion from ration cards, kerosene and other BPL

incentives, denial of education in government schools to the third child and

withdrawal of welfare programmes. This phased manner of implementing

the two-child policy, was soon followed by stringent measures in the form of

Indian Ministry of Health and Welfare’s Guidelines on Standards of Female

Sterilization, enacted in October 1999. Through a public interest litigation

decided through the judgment reported as Ramakant Rai Vs. Union of

India and Others [2009 (16) SCC 565], data from the States of Uttar

Pradesh, Bihar, and Maharashtra surfaced regarding government practices

for female sterilization, which largely revealed that the poor, female

population was targeted which lacked counselling or informed consent,

lacked pre- and post-operative care, and included unhygienic and un-

anesthetized operating conditions, sterilization of minors, coercion and

cruelty. In light of evidence of the morbidity suffered by women, along with

the unreported deaths due to the lack of quality care in sterilisation camps

the Indian Supreme Court in the noted judgment issued directives

specifying the quality of care standards along with appropriate protocols

that were to be stringently followed. While the issue of health concerns and

human rights violation arising from targeted sterilization of a certain

H.R.C. No.17599/2018 - 16 -

deprived class of the population has been addressed by the Indian Supreme

Court in Devika Biswas Vs Union of India (UOI) and Others [2016 (10)

SCC 726] as well, the Courts and the legislature and executive in India

nevertheless remained uncompromising in the object of population

reduction. As a result of these stringent legislative measures complimented

by judicial support, in the year 2017 the annual population growth

percentage in India has decreased to 1.1% while that of Pakistan remains

at 2.0%.

9. The People’s Republic of Bangladesh:- In contrast to India,

the national family planning program in Bangladesh is considered to be

“culturally sensitive” because it uses strategies that acknowledge and

account for gender inequality. A mixed contraceptive method was adopted

prioritising oral pills over other methods such as sterilization or clinical

services like IUDs which are met with hesitance, particularly among rural

populations. The Government of Bangladesh formed a National Committee

and a National Plan of Action was developed following the International

Conference on Population and Development (ICPD) in 1994 for

implementation of the goals set in the Plan of Action. Under the integrated

approach of population and development, national policies were formulated

on population, maternal health and strategies were developed for

reproductive health, population, health and nutrition. Taking a community-

based approach, married, literate village-women were recruited and trained

in basic medicine and family planning to go door-to-door dispensing birth-

control pills and barrier contraceptives, providing outreach services to

couples, particularly married women with limited mobility outside the home

or compound and referring women for clinical contraception.

Simultaneously, the government prioritized girls’ education which lead to

delays in marriage and childbearing as knowledge, status and confidence

gave them greater control over family-planning decisions. This led to

remarkable success in population control since prevalence of contraceptive

H.R.C. No.17599/2018 - 17 -

use increased dramatically from 3% to 45% among married women since

1971 and the fertility rate declined from about seven births per woman in

the mid-1970s to 3.4 births per woman in 1993. These can largely be

attributed to its Government’s efforts, particularly over the past 15 years to

expand access to family planning methods and services and awareness

campaigns.

10. The People’s Republic of China:- China, the most populous

country in the world which unlike Pakistan can sustain its rapid growth of

population due to its progressive economy, has been able to control its

growth rate by adopting the ‘carrot and stick’ rule. Article 25 of the Chinese

Constitution and Article 12 of the Marriage Law require that family

planning be promoted by the State. Attractive incentives in the field of

education and employment were provided to couples following the ‘one-

child norm’. At the same time drastic disincentives were cast on the couples

breaching such norm which even included penal action. These stringent

measures have led to a radical decrease in the population growth rate in

China, therefore, China’s Family Planning Commission, which for nearly

four decades enforced the country’s notorious one-child policy, will be

absorbed by a new agency as the government attempts to go back on its

one-child policy.

11. It is pertinent to mention that the elucidation of the population

control measures of various countries was only for illustration purposes.

Although Pakistan is at a disadvantage for having launched this population

control campaign decades after similarly populated countries such as Iran,

China, India and Bangladesh, we also remain at an advantage to benefit

from the errors that have surfaced decades after the implementation of the

respective strategies employed with regard to their population control

campaigns. Be that as it may, understanding the policy efforts to promote

birth control and family planning methods only provides half the context

required to formulate an effective plan. Indeed, a number of the failings of

H.R.C. No.17599/2018 - 18 -

the previous family planning initiatives stem from an ignorance of the

unique cultural and religious milieu of Pakistani society. A perusal of data

from the annual Demographic and Health Survey reveals a number of

preconceived notions, obstacles and misconceptions regarding family

planning, family size, childbearing and religious instructions regarding

birth control and spacing pregnancies. Looking to fellow Muslim countries,

or those nations with similar cultural ideals, it is clear that an effective

family planning policy is an achievable goal even in spite of cultural,

societal, or religious hesitance.

12. In order to learn from the mistakes of other countries in such

campaign and to ensure that the efforts made in this relaunched campaign

do not suffer the same fate as the previous one, a National Population

Symposium was held by the Ministry of National Health Services,

Regulations & Coordination (Population Programme Wing) in conjunction

with the LJCP under the auspices of this Court on 05.12.2018 where

several experts made valuable contributions to sketching a roadmap for

this campaign of population control. One of the points raised was that

family planning campaigns involves a two-fold process of (1) raising the

demand for contraception use and (2) reducing the unmet need for

contraception which comprises of a fair percentage of married women. The

foremost task should be the meeting of demand of contraceptives and

making them easily assessible to people while increasing the awareness

with regards to the need of contraceptives. Moreover, the best global

practices in family planning must be adopted including modern tested and

effective methods in addition to a contraceptive mix method which has

proven to be effective in many countries. Global evidence also supports task

sharing/shifting strategies which should be quickly rolled out in Pakistan

to enable mid-level and community-based service providers to provide

services to rural, peri-urban and urban poor communities. We must

emphasise the need to resort to reproductive health programming which

H.R.C. No.17599/2018 - 19 -

involves the participation of men in contraceptive use and supporting

women for use of contraception. Subscribing to family planning methods

will benefit the country in the form of a higher GDP per capita and reduced

unemployment, increased health benefits including reduced maternal

mortality, improved infant and child health and fewer abortions; these

would in turn lead to greater freedom to determine the number and spacing

of children; environmental benefits include reduced pressure on natural

resources (water, agriculture, energy, etc.) as well as reduced air water and soil

pollution; and it will also result in increased resources per capita for

schooling and healthcare sectors and infrastructure. If resources are not

increased by rationing the amount of births burdening the economy each

year, this working population age will either be unemployed or due to lack

of education and skill training will be working in unskilled and menial jobs.

In order to ensure that this working age population is productively

employed, a drastic decline in the population is required which must be

supplemented with an education ‘emergency’ whereby education and

technical training for the working age population is provided targeting both

genders equally. Additionally, strong policy reforms are required centred on

capturing the demographic dividend, the total fertility rate (TFR) must be

reduced to a sustainable rate, a national action plan is required to be

introduced in order to train our human resource and match skills to the

available work opportunities, and ensure an increase in work opportunities

for women so as to increase the source of income of each familial house.

The United Nations Fund for Population Activities2 (UNFPA) is ready to assist

Pakistan in building consensus on high quality, equitable and voluntary

family planning as a national priority working with key stakeholders

including development partners. Under the current Country Programme for

Pakistan (2018-2022) UNFPA will focus on increasing capacities at all levels to

accelerate delivery and accessibility of high-quality family planning

2
The principle global inter-governmental organisation in the UN system with a mandate for family planning.
H.R.C. No.17599/2018 - 20 -

information and services; UNFPA stands ready to foster partnerships and

provide technical support to the implementation of the Recommendations

approved by CCI and endorsed by the Provincial Legislators. This strategic

decision will also enable Pakistan to honour the commitments made at

international and national level particularly those made in the 1994

International Conference on Population and Development Programme of

Action and the commitment made to reaching Sustainable Development

Goals. Finally, coordination must be strengthened at all levels starting from

the existing fora which include the Country Engagement Working Group

(CEWG), Provincial FP2020 Working Groups, Family Planning Donor and

Reproductive Health working groups, civil society organisations and the

private sector working for the cause of population planning.

13. Be that as it may, as mentioned earlier in this opinion, the set

of eight key Recommendations which have been prepared by the Task Force

and approved by CCI are reproduced below:-

RECOMMENDATION RESPONSIBILITY TIMEFRAME

1. Establish National and Provincial Task Forces for steering, providing

oversight and taking critical decisions to reduce population growth, lower
fertility rate and increase contraceptive prevalence rate (CPR):

a. National TF chaired by Prime Minister M/o NHS By 31.12.2018

to include Chief Ministers of all the
Provinces, Federal and Provincial
Ministers of Population, Health,
Education, Finance, Planning and
representatives of civil society.
b. Provincial TFs chaired by respective PWDs By 31.12.2018
Chief Ministers to include Provincial
Ministers of Population, Health,
Education, Finance, Planning and
representatives of civil society.
c. Progress towards reducing population M/o NHS and PWDs Bi-annually
growth rate, lowering fertility and (NTF)
increasing contraceptive prevalence rate
to be monitored through a robust data Quarterly
collection system and assessments of (PTF)
results and presented before National
and Provincial Task Forces.

2. Ensure Universal Access to FP/RH Services:

H.R.C. No.17599/2018 - 21 -

i. Mandate all public health facilities Federal/Provincial By 30.06.2019

(BHUs, RHCs, THQHs, DHQHs, Governments
Teaching Hospitals) to deliver family
planning services as part of the
essential service package.
ii. All general registered private sector Federal/Provincial By 30.06.2019
practitioners and hospitals to provide Governments
FP counselling, information and
services to male and female clients.
iii. Lady Health Workers to provide FP, Federal/Provincial By 30.06.2019
ante-natal and post-natal counselling,
and contraception services on priority Governments
basis.
iv. Current cadre of male mobilizers to be Federal/Provincial By 30.06.2019
made active and accountable for Governments
counselling men on family planning.
v. NGOs and Civil Society Federal/Provincial By 31.03.2019
Organizations to work in close Governments
coordination with provincial DOHs
and PWDs to extend FP/RH services
to underserved and unserved areas.
vi. Federal and Provincial Governments M/o NHS, PWDs By 30.06.2019
to link population programs with and BISP
Social Safety Net programs like
Benazir Income Support Program and
introduce conditional cash transfer
schemes or incentivized schemes for
adoption of FP service and
institutionalized birth delivery.

3. Finances:

i. Federal Government to create a five- M/o Finance and By 30.06.2019

year non-lapsable Special Fund for M/o NHS
reducing Population Growth Rate with
annual allocation of Rs.10 billion. The
Fund shall be set up exclusively from
federal resources without any cut from
provincial funds. The Fund will:
a. Meet, for five years, 50% M/o NHS in FY 2019-20
amount of additional allocations coordination with through
made by the provinces for PWDs and Finance FY 2023-24
procurement of contraceptive Div. & PD&R Div.
commodities over and above the
budget provision of FY 2018-19
in the respective head.
b. Meet, for five years, 50% cost of M/o NHS in FY 2019-20
increase in LHWs for 100% coordination with through
coverage for doorstep services in DOH and Finance FY 2023-24
rural and peri-urban areas. Div. & PD&R Div.
c. Support innovative approaches M/o NHS in FY 2019-20
of Federal and Provincial coordination with through
Governments for reaching poor DOH and Finance FY 2023-24
and marginalized population to Div. & PD&R Div.
reduce population growth and
H.R.C. No.17599/2018 - 22 -

increase contraceptive
prevalence rate (CPR).
ii. Federal and Provincial Population and M/o Finance, M/o FY 2019-20
Health budgets for FP/RH to be NHS, DOH and through
doubled over the next two years and PWDs FY 2020-21
protected from reallocation to other
programs and departments while
ensuring timely releases.
iii. Donor financing to NGOs and private EAD and M/o NHS By 31.03.2019
sector organizations involved in
FP/RH to be streamlined through an in coordination with
effective coordination mechanism. PWDs and DOH
iv. Corporate Sector to allocate CSR SECP/FBR By 31.01.2019
funds for FP services and advocacy.

4. Legislation:

i. Family Planning and Reproductive M/o NHS, M/o Law By 31.03.2019

Health (FP&RH) Rights Bill ensuring and Justice and
mandatory FP/RH services by all Provincial
general health care facilities in public Governments/PWDs
and private sector.
ii. Early Child Marriage Restraint Act be M/o NHS, M/o Law By 31.03.2019
introduced by Federal and Provincial and Justice and
Governments (Sindh passed this Act Provincial
in 2013). Governments/PWDs
iii. Pre-marital counselling on family M/o NHS, M/o Law By 31.03.2019
planning should be mandatory for and Justice and
Nikah registration; LHWs or Provincial
appropriate service providers to Governments/PWDs
provide the requisite counselling.
iv. “Right to promotive and primary M/o NHS/M/s Law By 31.03.2019
health care for mother and child be and Justice
made mandatory” as the right to
education given in Article 25-A of the
Constitution.

5. Advocacy and communication:

i. A national narrative to be developed M/or NHS, M/o By 28.02.2019

in consultation with Provinces and Information, M/o
other stakeholders to create a sense of Religious Affairs
urgency and necessity of reducing and PWDs
population growth rate and achieving
socio-economic wellbeing for all.
ii. Mass movement leading to a call of Federal and Immediate
action to be launched involving Provincial
political leaders, corporate sector, Governments and all
academia, judiciary, executive, ulema, stakeholders
media, intelligentsia, civil society and
youth.
iii. PEMRA to provide free airtime for FP M/o Information and By 15.03.2019
messages on radio and TV channels at PEMRA
prime time.
H.R.C. No.17599/2018 - 23 -

iv. Behavioural Change Communication Federal/Provincial Immediately

campaign to highlight the role and Governments/Media
responsibilities of men in family and Civil Society
planning.

6. Curriculum and Training:

i. Health and hygiene to be included at PWDs and Federal By 30.06.2019

primary school level. and Provincial
Education
Departments
ii. Life Skills Based Education and PWDs and Federal By 30.06.2019
Population Studies to be included in and Provincial
Secondary and Higher Secondary Education
schools. Departments
iii. Population Dynamics in Pakistan to be HEC, Federal and By 31.03.2019
included in College and University Provincial Education
level education. Departments
iv. Population modules to be included in National School of By 31.03.2019
training at all Civil Services and Public Policy
Judicial Training Institutions.
v. PMDC and PNC to include modules M/o NHS, PMDC By 31.03.2019
on FP/RH in MBBS and Nursing and PNC
Degree Programs, respectively.
vi. Training to be provided to all public M/o NHS, DOH and By 31.12.2019
and private health care providers on PWDs
all modern contraceptive methods.

7. Contraceptive Commodity Security:

i. Incentivizing Local Production of M/o NHS in By 30.06.2019

Contraceptives: Federal and coordination with
Provincial Governments should relevant Federal and
encourage/incentivize the Provincial
pharmaceutical companies/investors authorities
to establish contraceptive production
units in Pakistan on WHO/FDA
standards.
ii. Pooled Procurement model to be M/o NHS, PWDs FY 2019-20
adopted by the Federal and Provincial and DOH onwards
Governments (subject to their
consent) to garner the benefits of
economy of scale.
iii. Supply Chain Management System to M/o NHS, PWDs By 30.06.2019
be strengthened to ensure availability and DOH
of all contraceptives at Service
Delivery Points.
iv. FP Commodities should be included PWDs and DOH By 31.03.2019
in the essential drug list of primary,
secondary and tertiary drug list.

8. Support of Ulema

i. Joint Declaration of Ulema made at M/o NHS, M/o On continuous

Population Summit-2015, Islamabad Religious Affairs, basis
H.R.C. No.17599/2018 - 24 -

to be widely advocated. M/o Information,

PWDs and DOH
ii. Training courses on family planning DOH/PWDs and By 30.06.2019
to be arranged at Provincial Judicial Provincial Judicial
Academies and relevant training Academies
institutes for Ulemas and Khateebs.

Adopting an approach similar to that of Iran, and focusing on the main

impediment to the cause of population planning, these recommendations

involve increasing the demand and utilization of contraceptives for which a

mass movement is suggested taking on board political leaders, Ulema and

clerics, the corporate sector, academia, executive, judiciary, media,

intelligential and youth. The Ulema and Islamic scholars must also be

urged to promote Islamic teachings in the context of controlled birth so that

each child may be assured an enlightened and prosperous life. For this

national cause, the Pakistan Electronic Media and Regulatory Authority

(PEMRA) should allocate free airtime for family planning messages on all

radio and television channels in prime time. Adopting the community-based

approach of Bangladesh, these recommendations include the mandatory

delivery of family planning services by all public health facilities and

hospitals, as part of the essential service package, as well as the mandatory

provision of family planning counselling, information and services by all

registered private sector practitioners and hospitals. After thorough training

the lady health workers and the current cadre of male mobilizers are

suggested to be reactivated targeting the women and men of each family

and ensuring active and accountable counselling for them. More crucially,

it has been recommended that Federal and Provincial Governments

introduce conditional cash transfer schemes for adoption of family planning

services and institutionalised birth delivery and financial support programs

such as the Benazir Income Support which should be linked with

population planning initiatives. Moreover, it has been recommended that

the Pakistan Medical and Dental Council (PMDC) and the Pakistan Nursing
H.R.C. No.17599/2018 - 25 -

Council (PNC) should include mandatory modules on Family Planning and

Reproductive Health so we may rope in our future doctors and nurses to

this national crusade. Obviously, the general cooperation of our NGOs and

civil society is also expected and requested for this national cause. The

Federal and Provincial Governments should also consider incentivising the

local production of contraceptives by investors and pharmaceutical

companies to increase their supply and accessibility and consider pooled

procurement of contraceptives. The executive must play an active role in

ensuring effective implementation of such laws. The Federal and Provincial

Governments have agreed to allocate a sustainable amount of funds for this

urgent cause, which will be a commitment that they must stick to in order

to achieve any success in this population control campaign.

14. The Recommendations are expected to accelerate government

efforts to reduce the population growth rate, lower the total fertility rate,

and increase the contraceptive prevalence rate. These Recommendations

which are aligned with provincial population policies and recognize the

Federal Government’s role in fostering, coordinating, and facilitating

national progress, specify clear priorities, roles and responsibilities, and

timelines for action. All that remains is for stakeholders at all levels to

translate these Recommendations into urgent action. Because further

complacence in controlling population by engaging in futile debates of

responsibility or blame fixing, will prove to be a sure drift towards disaster.

Immediate action by all pillars of the State and the public at large is not

only the need of the hour, it is now a question of survival and thus must

commence without any delay. As mentioned in the beginning of this

opinion, it is undeniable that the right to life and several other rights are

meaningless if owing to overpopulation, people are deprived of basic

amenities such as food, water etc. Even otherwise, being one of the most

populated countries in the world, Pakistan needs to realise its responsibility

and play its role in curbing its uncontrol and unplanned population before
 H.R.C. No.17599/2018 - 26 -

starvation, malnutrition, illiteracy, poverty and unemployment become the

fate of a large segment of its population.

15. The population explosion that we so rightly fear can only be

overcome if we stand against it together as one; if we successfully convince

the common man that our limited resources cannot feed more than two

children per house; if we accept that required transformative investments

in human development can only be made if our hands are not tied by

severe economic constraints and depleting resources; if we admit that the

ratio of mouths to feed has long outweighed our resources; if all

stakeholders, including policymakers, legislators, care providers, civil

society activists and religious scholars, play their roles in unison to support

responsible parenthood behaviours in our society; and if we can convince

ourselves that population planning is not a plan for the future, but a

remedial step that has already been taken too late: only then can we diffuse

this ticking bomb. Having equipped the nation with the above

Recommendations, collaboration of the three pillars of State and all

stakeholders and the words of wisdom and caution of experts for this

campaign reduce the population growth rate, this journey we have

embarked upon will indeed be one that our posterity will thank us for.

CHIEF JUSTICE

JUDGE

Announced in open Court JUDGE

on __________ at __________
Approved for Reporting
Waqas Naseer