Human Rights Case No. 17599 of 2018 (Regarding high population growth rate in Pakistan)

Court: The Supreme Court of Pakistan (Original Jurisdiction)

Date of hearing: 03.01.2019

Judges Present: Mr. Justice Mian Saqib Nisar, Honourable CJP,  Mr. Justice Faisal Arab and Mr. Justice Ijaz Ul Ahsan.

Name: Human Rights Case No. 17599 of 2018 (Regarding alarming high population growth rate in the country)

The Honorable Mian Saqib Nisan, CJP gave an opinion over the subject of the alarming population rise in Pakistan. The stats in 2017 showed that Pakistan with 200 million people, ranked as the fifth most populous country of the world. In a country that is already facing difficulties to feed, educate and provide job opportunities to its existing population, about 57% (76 million people) increase observed in the following years, that is more than the double number of people present, causing an alarming situation. This is truly, an outcome of the unchecked population growth of Pakistan since it got independent in 1947. The population growth is expected, according to the Projected Growth trends from United Nations, to increase by 50% (306 million people). 

It is suggested in the Judgment by Honorable CJP to take a notice of this ticking bomb before it is too late because this will make starvation, famine and poverty follow which is already evident in areas such as Thar. Our mortality rate being 178 deaths per 10,000 births and a high mortality rate for children below the age of five years, 75 deaths out of 100 children is not the only problem. 44% of the population is deprived of clean drinking water, 58% literary rate with 22 million children far from being enrolled in educational institutes. Hence, it will be difficult to juggle an over-burdened economy with a growing population and the demands of better facilities and opportunities of the existing people.

The Opinion of the Chief Justice of Pakistan, Mr. Saqib Nisar, referred to the Proclamation of Tehran 1968[1] at The 1968 International Conference on Human Rights as the ‘right to family planning’ was a recognized right by the International community. A right to determine the space and number of children to control reproduction exists and brings forth the right of well-informed and controlled pregnancies.

Right to life under article 9 of the Constitution of Islamic Republic of Pakistan 1973 has been guaranteed along with rights such as right to education, equality, speech, information and due process[2].By this, not only the rights are undermined but also, the country fails to prioritise economic progress. There are lesser means to provide information and a surplus of unskilled and unemployed manpower that is deprived of their fundamental rights where they may hope for the best luxuries but never attain them.

The judgment assured that the Courts have always been guardians of the rights and underlined some further cases as examples. The case of Miss Benazir Bhutto Vs. Federation of Pakistan and another[3], the scope of the term ‘liberty’ was given a judicial definition in a broader sense.

“to serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also from want, from poverty and destitution and from ignorance and illiteracy”.

A plethora of cases has emphasisied on the paramount right, the right of life. As seen is the case of Miss Shehla Zia and others Vs. Wapda[4] in which the word life was defined as

“all such amenities and facilities which a person born in a free country, is entitiled to enjoy with dignity, legally and constitutionally.”

Suo Moto Case No.19 of 2016 (2017 SMCR 683) included adequate, safe drinking of water and basic health care inclusive of the Fundamental Right to life. Right to life was marked as a right that includes livelihood, in the cases of Pir Imran Sajid Vs Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others[5] and Abdul Wahab and others Vs. HBL and others[6]. A number of cases[7] along with Shehla Zia’s case added health-friendly environment and Iqbal Zafar Jhagra Vs Federation of Pakistan[8] provision of electricity and gas as to the means of the article 9 of the Constitution. Interestingly, importance of water was also regarded as a right to life in the judgment where the Federal Government was directed to construct the Diamer-Bhasha and Mohmand Dams (Constitution Petition No. 57/2016 etc.). It is evident how the courts recognize the rights and understand the magnitude of the demands. However, the threat of over-population will result in the doom of the country towards which we are already moving to. This shall not only affect the general quality of life but also the safeguard of fundamental rights of people which are inseparable from the socio-economic progress.

There have been certain attempts throughout the years to have the population controlled. The Family Planning 2020, a commitment in 2012, where an advice is given by trained people about the options to control birth. Unlike Bangladesh and Iran, who succeeded in their Population Control Campaigns; Pakistan failed miserably making Family Planning a taboo for elected governments as they were unable to accommodate population planning initiatives in their five-year-plans. The absence of policy initiatives also constrained the Courts. Court took cognizance of this matter after a unanimous agreement of Attorney General for Pakistan and Advocates General of all Provinces. The agreement was to form a policy for all provinces that required control over the population. A Task Force was made, it constituted of four members; the Secretary, Minister of National Health, Secretaries of Population & Welfare of all Provinces and the Director General, Population of all Province, who submitted a report after lengthy deliberations. Unanimous endorsement was faced from religious scholars and political parties bat national dialogue with Population Council, when the initiative to re-launch a nationwide population planning campaign was brought forth. There is a need to sensitize this alarming matter by increasing awareness of the issue through print and electronic media.

This has been a threat to the countries throughout the world and they have been adapting various techniques and procedures with open arms to deal with the situation. As seen in The Islamic Public of Iran that has worked on the population growth by encouraging women to space their pregnancies for three to four years. This would limit the number of children to a number of two by avoiding births under the age of 18 and above 35. The laws of Iran had focused on reducing the infant mortality; promote women’s education and employment opportunities with extended social security and requirement benefits at the old age. The awareness was spread through various steps, such as pre-marital classes that were made mandatory for couples before they could receive marriage license. Population education was a module in all educational curriculums and the university students were required to select related modules. Rural areas were provided with door-to-door family planning information and in the urban areas focus was shifted on the private sectors. Today, 74% married Iranian women between 15 to 49 ages practice family planning with a 60% use of modern methods and one-third opting male or female sterilization.

The second country highlighted was The Republic of India. Harsh steps were taken where a person had more than two children. He was disqualified from being a member of Gram Panchayat, Panchayat Samiti or Zila Parishad as per s. 175(1)(q) of Haryana Panchayati Raj Act, 1994. Javed & Others Vs State of Haryana (2003 (8) SCC 369) held to popularize the Family Welfare/Family Planning Programme as it was in line with National Policy Holding of disqualifying right to contest election by those who had more than two living children. To provide color to the meaning of fundamental rights this step was not only regarded as reasonable, legal and rational but also philosophical. Judiciary gave various judgments to combat the menace of growing population as depticted in Air India Vs Nergesh Meerza and Others [(1981) 4 SCC 335], the air hostess was terminated from services on her third pregnancy with two existing children. This was reasoned not only for her health but also to deal with the population explosion problem. To breach such necessary measures for the national interests there are packages of punitive measures where the family is excluded from elections, ration cards, kerosene and denial of education in government schooling of the third child. Devika Biswas Vs. Union Of India (UOI) and Others (2016 (10) SCC 726) addressed the importance of sterilization of the deprived class for population reduction. 2017 reports showed 1.1% decrease in Indian Population rate where as Pakistan still remains at 2.0%.

The People’s Republic of Bangladesh was in contrast with India as family programming in Bangladesh is considered to be ‘culturally sensitive’ because of gender inequality. A mixed contraceptive method by prioritising oral pills was adopted instead of clinical services due to the hesitance of people, especially in the rural populations. There was a National Plan laid down at the International Conference on Population and Development in 1994. Strategizing community-based approach, married and literate women recruitments and trainings with door-to-door services as well that lead to remarkable success. Today, the contraceptive use increased from a 3% to 45% and the birth rate from 7 has declined to 3.4 births per women.

The People’s Republic of China, a country with the highest population rate; China, unlike Pakistan can sustain the rapid growth due to its progressive economy. It has been controlling the growth rate through the ‘carrot and stick’ rule. Family Planning is promoted by Article 25 of the Chinese Constitution and Article 12 of the Marriage Law. Incentives have been given in the fields of education and employment for couples following the ‘one-child norm’, whereas breaching this would subject people to various disincentives and penal actions.

In light of the aforementioned illustrations, Pakistan is at a disadvantage as such campaigns resulted failure on numerous occasions and attempts. There are a number of misconceptions regarding family planning and family sizes; culturally, religiously and otherwise. A symposium was held by Ministry of National Health Services, Regulations & Coordination on 05.12.2018. Points raised included an increase in the use of contraception and reduction in the unmet need for contraception that compromises a fair percentage of married women. Moreover, best global practices should be adopted, these must include modern methods and a support task sharing/shifting strategies with the community based services. Such subscriptions to plan families accordingly will benefit the country and form a higher GDP per capita with reduced unemployment, increased heath benefits and fewer abortions. This would also increase environmental benefits by dealing with all sorts of pollutions and lessening the burden from the economy each year. For insurance of the working age population a drastic decrease in population is required with strong policy and educational reforms.

The United Nations Fund for Population Activities (UNFPA) is offering its assistance to Pakistan in building an equitable program that is voluntary accessible by high-quality family planning and providing foster partnerships with technical efforts. The approach similar to that of Iran’s with a focus on the impediments to cause the population planning would need utilization of contraceptives. The Ulema, political leaders, clerics, corporate sector, academia, executive, judiciary, media and youth needs to be on board and agree with such steps being taken. Islamic leaders should encourage application of the Islamic teachings about birth control and educate the youth about them. Pakistan Electronic Media and Regulatory Authority (PEMRA) should allocate times for commercials or such messages. With Bangladesh’s community-based approach delivery of public health facilities with essential packages will not only give awareness but also target unemployed people and give them jobs by training male and female and getting them an opportunity to become counselors.

The NGOs and civil society will be expected to corporate for this national cause. However, the government should also consider incentivizing and increasing the supply and accessibility of contraceptives. Executive is expected to play an active role in ensuring effective implementation of such laws with generation and allotment of funds by the government to achieve success in this campaign. There is an expectation of positive results such as; lowering fertility rate and population with policies specifying clear priorities, roles, responsibilities and time. The Opinion repeats right to life along several other rights is undeniable yet meaningless if people are deprived of basic amenities such as food, water, education, jobs etc. Pakistan is required to realize the responsibility and play a role efficiently to deal with illiteracy, poverty, unemployment and malnutrition that may become fate of a large segment of the population.

The concluding paragraph of the Opinion mentions the rightly feared threats and consequences by the population explosion. There is a call made for unity to convince the common man of the two child policy per house because of the present availability of the economic resources. We need to accept the transformative investments that require human development which can only be done fairly with un-tied hands by economic restraints and scarcity of resources. We should admit that there is a large ratio of mouths that need to be fed and they outweigh our resources at hand. With all the stakeholders, policy makers, legislators, care providers and religious scholars on board we support and convince ourselves that this step is not for the future but a remedial step that is being taken at a very late stage; we may then be able to diffuse this ticking bomb. The nation equipped with Recommendations by the Task Force, collaborating with the three state pillars, stake holders and experts giving their words of wisdom and caution can only help in reduce the population rate. This will be a step which will be a relief and helping hand for our posterity.

[1] Paragraphs 16 and 17

[2] Articles 4,25,25-A,19,19-A and 10-A of the Constitution

[3] PLD 1988 SC 416

[4] PLD 1994 SC 693

[5] 2015 SCMR 1257

[6] 2013 SCMR 1383

[7] 1994 SMCR 2061, 2018 SCMR 2001 and 2011 SCMR 73

[8] PTD 2014 SC 243

Post image: Pakistan Today