SHORT ORDER JAWAD HASSAN, J. For detailed reasons to be recorded later on and subject to what is outset therein by way of amplification, today's short order is aimed at disposing the instant writ petition in terms elaborated herein below. The good news is that this Court appreciates the effort made by the Petitioner with regard to the betterment of legislation on Pakistani child citizens' fundamental rights, including right to life and dignity, right to proper growth and development through strict enforcement of their right to nutritious food and education. Whereas the bad news' in one aspect, at least for the Petitioner, is that he, prior to knocking the door of this Court, has not approached the concerned governmental authorities for the enforcement of such fundamental rights under the relevant laws because in their report and para-wise comments, the answering Respondents have mentioned the proper legislation introduced by the legislator from time to time for the protection and expansion of said fundamental rights (of child citizens). This one aspect aside, it is a thoroughly good egg. The concept of "curate's egg" has been developed by the English Courts.
2. This constitutional petition has been filed by the Petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") for the protection of fundamental rights of child citizens of this country as enshrined in Chapters 1 and 2 (under Part-II) of the Constitution. The Petitioner has sought directions to both the Federal as well as the Provincial Governments to declare the fundamental rights of child citizens, including right to nutritious food, right to proper development (to maximize benefit from education) and right to education, as an unqualified right and to further expand the said rights in light of provisions of Articles 4, 9, 14, 25A and 38 of the Constitution.
The first issue to be resolved by this Court is whether the word child citizen can be referred in the Constitution in light of different words used in the Constitution i.e. (a) citizen; (b) party; (c) person; and (d) individual in order to invoke such provisions. In this regard, stance of the learned counsel for the Petitioner is that the Constitution itself elucidates the word children under the newly added Article 25A, which specifies that free and compulsory education is fundamental right of all the children of the age of five to sixteen years. They further asserted that the word "children" is mentioned in Article 11(3) and also used in Article 25(3) while Article 35 of the Constitution protects the marriage, the family, the mother and the child, hence, the word child used in the Constitution can be stretched with the words citizen and person.
3. Barrister Muhammad Ahmad Pansota, ASC submitted that the Petitioner, being an overseas Pakistani, has done a lot of work through a non-profit organization for protection of child citizens' rights by providing free pre-schooling and primary education to over ten thousand children in about fifty centres set-up in underdeveloped areas of Bangladesh and Pakistan, and he has approached this Court to highlight the indifference, lassitude and inaction of the Respondents towards the Pakistani child citizens who are future of this country and deserve strict protection of their fundamental rights as guaranteed/protected under the Constitution and through this petition, he is seeking indulgence of the Court on the issue of proper legislation with regard to the enforcement of said fundamental rights. He further submitted that the Petitioner has invoked the constitutional jurisdiction of this Court, after passing of the landmark judgment on right to food in the case of Muhammad Ahmad Pansota and others v. Federation of Pakistan and others (PLD 2020 Lahore 229), just to maximize the potential of children as well as the youth through education due to the severe reluctance of and inaction on part of the Government to make legislation and manage child rights issues, including hunger and malnutrition in Pakistani children. He contended that in the aforesaid judgment, this Court has expanded the scope of right to life and right to food by discussing in detail the Islamic principles and moral standards derived from the Holy Quran and Sunnah in view of the importance of food and ramification of hunger and held that Islam imposes a duty on privileged Muslims to share their wealth and help the ones in need. In the said judgment, this Court has further elaborated the principles of policy as well as the purpose and intent of fundamental rights for which they have been framed, hence, to further develop the rights of Pakistani child citizens, the Petitioner has brought this matter before the Court. Ms. Eamaan Noor Bandial, Advocate further explained that Article 199 of the Constitution uses the word 'person', Article 4 of the Constitution defines the word 'citizen', while somewhere in the Constitution the word 'individual' is mentioned and they are all intertwined, hence, the term 'child citizens' falls within the framework of the Constitution. She next, argued that Article 4 of the Constitution gives an inalienable right to every citizen which is defined under Article 260 of the Constitution and if it is read with the definitions referred above, the scope is large because the word 'party' is involved therein. She submitted that the issue in hand relates to the Federal as well the Provincial Government and legislative authorities of both the governments to first introduce laws under their respective Rules of Business and then to perform their statutory roles in administering the said laws, therefore, they are fully responsible for the protection of rights of Pakistani child citizens. Ms. Eamaan Noor Bandial, Advocate further submitted that the concept 'right to food' has been developed in the World Health Organization (the "WHO") which highlights the very aspect that the latest National Nutrition Survey (the "NNS"), conducted in 2011, shows the highest levels of child malnutrition in Pakistan as compared to other developing countries and also reports a global acute malnutrition (wasting) rate of 15.1% among children, which is higher than the 13% figure of the previous NNS 2001, conducted in Pakistan.
4. Ms. Eamaan Noor Bandial, Advocate argued that due to the prevailing condition of mortality, poor health, poor physical and cognitive development, poor school performance, reduced capacity to work even later in life, the Commission of Child Welfare and Development (the "CCWD") was established in 1980, under the Ministry of Human Rights, to protect the interest of children in accordance with law, however, no commendable efforts were made by the CCWD to review the enforcement of fundamental rights of the child citizens. She submitted that the reason to agitate the matter before this Court as a public interest litigation is the principles settled by this Court in Muhammad Ahmad Pansota Case (supra) as well as the judgments cited as Subay Khan v.
Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253), Sheikh Asim Farooq v.
Federation of Pakistan and others (PLD 2019 Lahore 664) and Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407). She has also drawn attention towards the latest judgment passed by this Court in the case of Sana Khursheed v.
Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346), in which the scope of right to life and right to dignity of man has been expanded under the provisions of Articles 9 and 14 of the Constitution. She further contended that the issue in hand also relates to right to education of child citizens, which will be badly affected if proper food is not provided to them, in line with the mechanism adopted in all other countries, as mentioned in this petition. She placed reliance on the recent judgment passed by this Court on right to education in the case of Al-Bakoi International and others v. Federation of Pakistan and others (PLD 2021 Lahore 1) wherein much emphasis has been laid down on the importance of education, by holding that "Education is the most essential instrument of change and lean close the gap between rich and poor within a society. A quality public education for all can be a powerful engine for greater equality and can 'equip men and women - rich and poor alike - with equal voice and power." In this judgment, the Court has further observed that under Article 25-A of the Constitution it is sole and utmost responsibility of the State (the Federal and the Provincial Government) to secure fundamental right of education of all the children and also to promote the education and well- being. She added that under Article 35 of the Constitution the State is fully responsible to protect the marriage, the family and the child and scope of this Article has already been expanded by this Court in Sana Khursheed's Case (supra) by holding that "the State should undertake special legislative, administrative and judicial initiatives to ensure protection of the rights of women and children." It is to be noted that on intervention/directions of this Court in different cases, in the last four years, various laws (Acts, Ordinances and Policies) have been made by the legislator, after forming committees of experts from lawyers and other relevant fields, and subsequently, the said laws were also implemented by the executive. Details of which is mentioned in paragraph No.28 of the judgment passed in Sana Khursheed Case (supra) in the following manner: Sr.No.Law/Legislation Cases 1.The Punjab Domestic Workers Act, 2019 Subay Khan v. Sohail Shahzad Secretary Labour Govt. of Punjab and others (PLD 2019 Lahore 253)
2.Punjab Food Authority (Disposal of Excess Food), Regulation, 2019Barrister Muhammad Ahmed Pansota v. Federation of Pakistan and others (PLD 2020 Lahore 229)
3. Commercial -Chins Ordinance, 2021M.C.R. (Pvt.) Ltd., franchisee of Pizza Hut v. Multan Development Authority and others (2021 CLD 639)
4.The Punjab High Security Zones (Establishment) Act, 2020Mian Ali Asghar v. Government of the Punjab, and others (2020 CLC Lahore 157 = 2021 MLD 370)
5. Urban Forest PolicySheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664)
6. The Punjab Empowerment of Persons with Different Abilities Act, 2022Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346)
5. Pursuant to the direction issued by this Court on 23.02.2022, Respondents Nos.1, 2, 3, 7 and 10 have submitted their report and para-wise comments by conceding the fact that there is need to further strengthen the scope of fundamental rights of child citizens of this country. They, while supporting the Petitioner's stance about protection and expansion of the fundamental rights of child citizens, have referred to various laws specifically, the legislation introduced by the legislative authorities of both the Federal and Provisional Governments on this issue, besides mentioning efforts being made by the relevant governmental departments to enforce provisions of the said laws.
6. Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs, Punjab, who is present in the Court today in another case, has put in appearance (on Court call) to render assistance in this matter as well and informed that he will look into the matter and examine the relevant laws/ policies and then suggest the relevant department for making laws/ policies, as and when required. It is to be noted that already a similar matter was taken up by Mrs. Justice Ayesha A. Malik (the then Judge of this Court now the Judge of the Hon'ble Supreme Court of Pakistan) on 15.10.2021 in Writ Petition No.33518/2015, in which the issue of nutritious food to every child under the age of ten especially poverty stricken children, was raised and specific direction was issued by this Court to the government to improve the nutrition of children under ten years of age and of expecting mothers by demonstrating various programs underway. Relevant part of the said order (from Paragraph-3) is reproduced hereunder:- "After hearing the learned counsel for the parties and going through the reports filed by the Respondents, it appears that an effort is being made by the government on this issue which is a continuous effort to uplift the food and health of women and children. Given the interest of the Petitioner in this issue, it is best to pursue the matter at the policy level to ensure that efforts continue and to collect data on the subject. At this stage, as the government has admitted that efforts must be made to improve the nutrition of the children under ten years of age and of expecting mothers and have demonstrated the various programs underway, accordingly."
Pertinently, already directions, have been issued by this Court in above said order and on confrontation, whether the same have been complies} with or not, the Secretary Law and Parliamentary Affairs, Punjab stated that certain progress has been made however, he has assured that he will discuss the matter with the relevant authorities and also make hectic efforts for resolution of this issue on immediate basis.
7. Learned counsel for the Petitioner argued that the words 'person' and 'citizen' fall within the frame work of the Constitution and pertinently this petition deals with the fundamental rights of child and children as the Constitution itself recognizes their rights under the principle of policy, Part-2, Chapter-I because the word 'children' is defined under Article 25-A and word 'child' is mentioned under Articles 11(3) and 35 of the Constitution therefore, the Respondents under their respective Rules of Business, if provided, can make legislation and prepare policy, if so advised. After 18th Amendment in the Constitution, this Court has discussed the role and functions of the Federal and Provincial Governments with respect to their respective rules of business in Muhammad Yousaf v.
The Secretary Finance and others (PLD 2021 Lahore 156) by observing that: "Primarily the governments in Pakistan are divided into "Federal Government" and "Provincial Government". The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Article 129 read with Article 137, and under Article 139 conduct of business is made along with Punjab Government Rules of Business, 2011. The law made by either Federal Government or Provincial. Government originates through legislative procedure provided under Article 70 of the Constitution. After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakistan and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls within the ambit and purview of their executive authority and legislative competence.
10. The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the power's within the Federal Government in order to empower the Provinces to legislate laws and execute policies in accordance with the requirements and needs of their respective areas and to secure effective and efficient delivery of services for the citizens residing therein in accordance with their particular ground realities".
Therefore, there is clear cut mandate with the Food and School Education Departments under Second Schedule of the Punjab Government Rules of Business, 2011 to make proper policy/legislation on the issue in hand.
8. This Court succeeded to conclude the case in shape of issuing various directions to the Respondents, including that they will (i) make proper legislation on the Pakistani child citizens' fundamental rights in light of the relevant provisions of the Federal Rules of Business, 1973 and the Punjab Government Rules of Business, 2011, as discussed above, and if proper legislation already holds the field then ensure its enforcement; (ii) formulate a national policy on such rights under the Rules, after carefully going through the respective laws, by conducting surveys in the relevant fields and also taking restrictive steps for the mal nourishment/malnutrition in the child citizens; and then
(iii) ensure implementation of the said policy in true sense.
8(sic). Disposed of accordingly. The detailed judgment will be followed later.