Judicial Activism vs. Judicial Restraint

The labels conceal the real questions

“Judicial activism” and “judicial restraint” are frequently used as conclusions before the legal analysis has begun. Activism may describe generous interpretation of a right, relaxed standing, invalidation of state action, departure from precedent, judicial control of procedure, or an intrusive remedy. Restraint may mean fidelity to text, respect for precedent, deference to expertise, narrow relief, avoidance of premature decision, or refusal to decide at all. These are different choices. Collapsing them into a single label turns constitutional method into a judgment about judicial personality.

Pakistan’s experience makes the distinction essential. A court may interpret a right boldly but grant measured relief. It may possess jurisdiction yet decide an issue no party raised. It may identify an actual illegality but prescribe a policy that the law entrusts to another institution. Conversely, a court may invoke restraint to avoid enforcing a clear constitutional limit against a powerful actor. The first danger is judicial substitution; the second is judicial abdication.

The sound inquiry is therefore stage-specific. In every proposed intervention, four questions must remain separate:

1. Jurisdiction: which constitutional or statutory provision authorises this court, in this proceeding, to decide this dispute?
2. Merits: what enforceable right, prohibition, power, or duty governs the challenged act?
3. Decisional process: is the record adequate, have affected persons been heard, and which institution has lawful responsibility and comparative capacity?
4. Remedy: what relief is necessary to cure the proved wrong without creating a new power or displacing lawful choices?

This framework is more demanding than either slogan. It permits strong review where a right and jurisdiction support it. It requires restraint where the pleaded dispute, evidence, or remedial competence runs out.

The inquiry is also historically situated. Scholarship on Pakistan does not portray judicial power as a simple progression from weakness to independence. Maryam S. Khan’s study of 218 reported public-interest decisions identifies alternating waves of activism and retreat and treats public-interest litigation as part of the Court’s changing institutional position.¹ Moeen Cheema examines the post-2009 Supreme Court as an apex institution engaged in structurally political adjudication, asking about the nature and consequences of its judicial politics rather than pretending constitutional adjudication can be apolitical.² Shoaib Ghias connects judicial expansion under General Musharraf to interactions among the bench, bar, economic regulation, and political mobilisation.³ Yasser Kureshi, drawing on interviews, archival work, and doctrinal analysis, explains the longer movement from deferential to confrontational judicial preferences through the audiences that shaped judicial power.⁴

These accounts supply an important warning. Doctrine cannot be evaluated only by whether a particular judgment produced a desirable result. The same procedural innovations that open courts to excluded claimants can accumulate institutional power; the same language of deference that preserves expertise can also insulate exercises of public power from review. A defensible theory must test the legal form of intervention as well as its immediate outcome.

Judicial review is both a power and a limit

Judicial review begins with constitutional supremacy. Article 8 renders a law void to the extent it is inconsistent with fundamental rights. Article 199 gives the High Courts defined authority to control unlawful public action and enforce fundamental rights. Article 175(2), however, states the limiting proposition: no court has jurisdiction except as conferred by the Constitution or law.⁵

These provisions reject two extremes. Absolute deference would make the legislature or executive the final judge of the limits on its own power and reduce Article 8 to an aspiration. But a free-standing judicial power to correct public affairs would make Article 175(2) meaningless. The Constitution creates courts of law, not councils of general supervision.

Three concepts should consequently be kept distinct:

• Judicial review is the legally conferred power to test public action against higher law.
• Judicial activism is an assertive method within that power, visible, for example, in purposive rights interpretation, flexible standing, or an effective remedial order.
• Judicial overreach occurs when a court assumes authority the Constitution or law does not confer, decides beyond the controversy, creates a governing rule without legal foundation, or takes over a function assigned to another institution.

Activism may be justified or erroneous. Overreach is defective because of where the court found its authority or how far the order travelled. Restraint is valuable when it keeps review within law; it is not a licence to leave constitutional violations unremedied.

Judicial independence reinforces rather than displaces this account. Government of Sindh v Sharaf Faridi treated separation of the judiciary from the executive as an operative constitutional requirement, not a decorative principle.⁶ Independence protects the capacity to decide against government. It does not enlarge the subject-matter jurisdiction of a court. Institutional autonomy and jurisdictional discipline are complementary: a court must be free to exercise all the power it has and careful not to exercise power it lacks.

Rights-expanding adjudication: when strength is justified

Pakistan’s rights jurisprudence contains powerful examples of legitimate doctrinal innovation. They show why constitutional fidelity cannot be equated with narrow interpretation.

In Benazir Bhutto v Federation, the Supreme Court considered restrictions affecting political association and participation in the electoral process.⁷ It read Article 17 in its democratic setting rather than as a bare permission to form an organisation. The method was purposive but still legal: it connected constitutional text, representative government, and the practical activities through which a political party functions.

General Secretary, West Pakistan Salt Miners Labour Union v Director, Industries concerned proposed mining activity threatening a water source used by residents near Khewra.⁸ The Court allowed a public-interest claim notwithstanding procedural objections and treated uncontaminated water as part of the constitutional protection of life. Its memorable formulation—that clean water is part of life itself—expanded the reach of Article 9 without assigning the Court the daily administration of a water system.

In Workers’ Party Pakistan v Federation, the Court examined campaign finance, electoral practices, and the Election Commission’s duty to ensure honest, just, and fair elections.⁹ Its directions sought implementation of existing constitutional and statutory obligations in a field where unlawful practices could distort the mechanism through which representative institutions obtain legitimacy.

The common feature is not simply that the claimants won. Each case answered a recognizable constitutional problem: whether a protected association could be rendered ineffective, whether “life” excluded the material conditions necessary to sustain it, and whether an institution could ignore duties integral to a lawful election. Procedural flexibility made enacted guarantees practically enforceable.

But the cases do not authorise every form of intervention. Recognising that pollution engages Article 9 is an interpretive judgment; choosing technical emission levels, staffing inspectors, and operating a water network are administrative tasks. Requiring the Election Commission to perform a legal duty is different from judicially designing an electoral system. Strength at the stage of rights definition does not settle the intensity of remedy.

This separation is central to modern remedial theory. Kent Roach argues that constitutional remedies should receive independent analysis and distinguishes immediate relief for an established claimant from remedies that permit elected institutions to design systemic reform.¹⁰ Lon Fuller’s account of “polycentric” disputes likewise explains why adjudication becomes strained where altering one allocation changes many interdependent claims not fully represented by two parties.¹¹ Neither proposition supplies an automatic rule of deference. Each requires a court to ask what, precisely, the litigation record and institutional form can responsibly decide.

The controversy is a safeguard, not a technicality

An actual dispute performs constitutional work. Parties identify the contested rule, produce facts, test evidence, reveal reliance interests, and frame lawful relief. An order that leaves the controversy may affect people who received no notice and may rest on assumptions no adversary had reason to challenge.

Mian Irfan Bashir v Deputy Commissioner, Lahore is the leading warning.¹² A Lahore High Court matter about the removal of commercial signboards produced directions forbidding petrol stations to sell fuel to motorcyclists without helmets, backed by closure and fines. The Supreme Court set those directions aside. No application concerned petrol sales; affected businesses had not been brought before the Court; and no legislation or executive policy supplied the judicially created sanction.

The judgment’s force lies in its refusal to let a worthy object supply a missing power. Helmet use was legally required and road safety was important. Neither proposition gave a constitutional court authority to create a new regulatory instrument. The Supreme Court described the point at which interpretation becomes judicial legislation or policy-making that intrudes on the assigned work of other branches.

The same problem received an even fuller treatment in Federal Government Employees Housing Authority v Ednan Syed, reported as PLD 2025 SC 11.¹³ The Islamabad High Court invalidated a revised housing-allotment policy although no party had challenged that policy and the affected beneficiaries and government had not been heard. The Supreme Court held that High Courts do not possess suo motu jurisdiction, that relief must remain within the prayers, and that notice followed by hearing forms a basic requirement of Article 10-A. It set aside the orders and remanded the pending matters so the pleaded disputes could be decided after affected persons had an opportunity to participate.

That decision unites three doctrines often treated separately:

• deciding an unchallenged policy exceeded the High Court’s jurisdiction;
• condemning the policy without notice violated fair trial and due process;
• using judicial review as an unlimited power entered the legislative or executive domain and offended separation of powers.

The sequence matters. Pleading is not only a private rule for litigants; it locates judicial authority. Hearing is not only courteous procedure; it supplies information and legitimacy. Separation of powers is not only an abstract allocation among branches; it is protected through the concrete disciplines of jurisdiction, notice, evidence, and reasons.

Review of policy is not policy immunity

Courts regularly review policy. The relevant distinction is between testing policy against law and choosing among several lawful policies.

In Chief Executive Officer, MEPCO v Muhammad Ilyas, an unsuccessful applicant for the post of Assistant Line Man scored below the interview threshold.¹⁴ The High Court nevertheless ordered his appointment against an asserted vacancy and later used contempt proceedings to enforce the direction. The Supreme Court set the orders aside. It could have reviewed the recruitment criteria for illegality, discrimination, or mala fides; it could not lower the threshold and select the candidate in the employer’s place.

Executive District Officer (Revenue) v Ijaz Hussain similarly rejected judicial alteration of the weight assigned to an interview in public recruitment.¹⁵ The question was not whether another formula might be more attractive. Without a recognized legal defect, comparative weighting remained with the policy-maker.

In Sadiq Poultry (Pvt) Ltd v Government of Khyber Pakhtunkhwa, a High Court order ventured into commodity pricing and export policy.¹⁶ The Supreme Court stressed both statutory allocation and evidential form: the federal legislation assigned import and export controls to the Federal Government, while a High Court exercising constitutional jurisdiction ordinarily did not record the evidence required to perform the specialist adjudicative task created elsewhere by law.

These decisions support a structured, not deferential, review:

Expertise is therefore not immunity. A regulator must act within statute, comply with constitutional rights, confront the material before it, and explain a rights-determining decision. Expertise becomes relevant when the court selects the intensity and remedy of review. Where multiple lawful solutions remain, the authorised institution ordinarily chooses among them because it possesses the continuing information, budget, coordination duties, and political responsibility that accompany implementation.

Remedy is a separate constitutional decision

Overreach often begins after the court correctly finds a violation. A declaration, prohibition, severance, remand, mandatory timetable, interim preservation order, and continuing supervisory jurisdiction differ sharply in constitutional effect. Remedy needs its own reasons.

Five principles can discipline that choice.

1. Fit

Relief should address the legal wrong proved. A procedurally defective decision ordinarily calls for a fresh decision under the correct process. An unlawful criterion may require severance or reconsideration. A court should not appoint the claimant, grant an unearned licence, or redesign unrelated parts of a scheme unless the law leaves no other lawful outcome.

2. Necessity

The more intrusive the remedy, the stronger the explanation that ordinary relief will fail. Repeated disobedience, an institutional pattern, irreversible harm, or a right that will expire with time can justify deadlines, reporting, interim protection, or retained jurisdiction. Intrusion should answer evidence rather than suspicion.

3. Administrability

An order must identify the legal standard, responsible actor, measurable obligation, and completion point. Vague directions invite arbitrary contempt proceedings and transfer indefinite policy responsibility to the bench. Courts should be particularly cautious where enforcement requires continuous technical choices not resolved by the judgment.

4. Third-party fairness

Admissions, appointments, housing, licensing, and budgetary orders frequently affect absent persons. Notice, joinder, protection of reliance interests, and prospective operation may be necessary. In PLD 2025 SC 11, the absence of policy beneficiaries was not incidental; it helped make remand the legally appropriate remedy.

5. Institutional return

Once the violation is corrected, responsibility should return to the institution charged by law. A time-bound remand is often stronger than a declaration yet less substitutive than judicial administration. If the authority again acts unlawfully, a documented failure can justify escalation.

This is not weak enforcement. Roach’s two-track insight is useful here: the successful claimant may require immediate relief, while broader prevention can be designed through a remedy that preserves a lawful institutional response.¹⁷ More recent comparative work similarly argues for “responsive” remedies whose strength depends on the rights risk, institutional behaviour, and capacity for a credible response.¹⁸ Pakistan’s Constitution supplies its own powers and limits; comparative scholarship helps expose the remedial variables, not replace the domestic text.

The post-Twenty-seventh-Amendment architecture

The present Constitution requires older case law to be read with temporal care. The Constitution (Twenty-seventh Amendment) Act 2025 established the Federal Constitutional Court (“FCC”) and omitted former Article 184.¹⁹ Older Article 184(3) authorities remain important for rights reasoning and institutional history, but they do not describe the current Supreme Court’s original public-importance jurisdiction.

Article 175E(3) now authorises the FCC, without prejudice to Article 199, to make an order where a question of public importance concerning the enforcement of fundamental rights is involved. Its proviso says that the jurisdiction is exercised on an application filed by a person.²⁰ The requirement preserves a direct public-importance rights route while insisting upon an applicant and a framed claim.

Article 175E(5) is different. The FCC may, on its own motion or otherwise, call for the record of a case pending before any court where a substantial question of constitutional interpretation is involved and may make an appropriate order in that case.²¹ It is a powerful call-up jurisdiction. Its text nevertheless attaches own-motion action to an existing case and a substantial interpretive question; it does not reproduce a general authority to originate any public controversy.

The High Courts remain central under Article 199. Article 199(1A) expressly states that a High Court shall not act on its own motion or grant an order, direction, or declaration beyond the contents of an application.²² The constitutional text now confirms the proposition developed in Mian Irfan Bashir and PLD 2025 SC 11: an important public object cannot enlarge the pleaded jurisdiction.

The binding hierarchy has also changed. Under current Article 189, an FCC decision that decides a question of law or states a legal principle binds all other courts, including the Supreme Court. A Supreme Court decision binds all other courts except the FCC.²³ The institutional identity of the deciding court is consequently part of precedent analysis.

These changes structure, rather than abolish, strong review. A person may still seek generous enforcement of fundamental rights. The FCC may still invalidate state action and issue appropriate orders. High Courts may still grant potent Article 199 relief. But commencement, court competence, pleading, and decisional hierarchy are now unusually explicit constitutional constraints.

A current FCC example: legality over sympathy

Shaheed Mohtarma Benazir Bhutto Medical College Lyari v Province of Sindh illustrates corrective restraint under the new architecture.²⁴ A medical applicant with an aggregate of 84.695 percent sought a reserved seat for residents of “Lyari Town (previous).” Her current address lay within Lyari, but official verification showed that it did not fall within the historical territorial unit adopted by the prospectus. The High Court directed her admission.

The FCC set that order aside. The applicant had not challenged the territorial criterion as arbitrary, discriminatory, mala fide, or unlawful; her pleaded case was that she came within it. On the verified record, she did not. The Court also considered the specialist regulator’s fixed intake and the effect an additional admission would have on sanctioned capacity.

The judgment did not declare educational policy immune from review. It identified the recognized grounds on which such a policy could be challenged and held that none had been pleaded or proved. Hardship could not substitute for eligibility; nor could a court disregard the prospectus and the interests of the wider applicant pool.

This is a useful model because the result followed a sequence: identify the statute and prospectus, determine the pleaded claim, test the official record, state the grounds of review, consider regulatory competence, and grant relief limited to setting aside the unsupported admission direction. The Court was active in correcting the High Court and restrained in refusing to make admission policy.

A five-part audit for constitutional intervention

The authorities support a practical audit more precise than the activism-restraint binary.

1. Identify the jurisdictional gateway

Which provision confers power on this court? Who may invoke it? Is there a pending case, an application, an aggrieved person, a public-importance rights question, or another textual threshold? Articles 175(2), 175E, and 199 must be applied separately. Gravity cannot manufacture jurisdiction.

2. State the legal defect

Is the challenged action ultra vires, procedurally unfair, discriminatory, mala fide, irrational in the legally relevant sense, or inconsistent with a fundamental right? A court should express the governing rule at a level capable of application. “Unfair policy” or “public interest” is not enough.

3. Test the adjudicative record

What facts are agreed? Which require oral evidence or specialist proof? Have all materially affected persons received notice? Did the parties have an opportunity to answer any ground on which the court proposes to decide? PLD 2025 SC 11 shows that an ostensibly principled judgment can still be unconstitutional if it surprises unheard parties.

4. Distinguish unlawful choice from lawful choice

The court must remove choices the Constitution forbids. It must normally leave among the lawful options those assigned to the legislature, executive, regulator, or statutory tribunal. The degree of judicial scrutiny can rise with the seriousness of the right, opacity of the process, vulnerability of the claimant, or history of non-compliance without turning review into primary administration.

5. Justify the remedy independently

What order cures this claimant’s violation? What systemic risk remains? Why will a declaration, severance, prohibition, or remand not suffice? Who else will be affected? What is the exit condition for supervision? A compelling right does not automatically justify the broadest remedy.

Strong review in conditions of institutional failure

The strongest argument against restraint is practical: what if the authorised body repeatedly refuses to act, conventional standing excludes the vulnerable, and delay will make the right worthless? A narrow remand may reproduce the violation.

That objection supports calibrated strength. A court may preserve the claimant’s position, require action by a fixed date, direct application of a stated legal minimum, demand public reasons, obtain neutral technical assistance, or retain jurisdiction for a defined compliance question. Evidence of repeated defiance can justify an order stronger than the record supported at the first hearing.

The reverse risk must also be confronted. Separation of powers cannot be invoked only against courts. A court that declines a properly presented claim against unlawful detention, discrimination, censorship, or executive action may alter the constitutional allocation by default. Deference operates only within a zone of lawful choice. Once higher law removes the choice, enforcement preserves institutional boundaries.

The defensible ideal is engaged restraint. The judge is engaged enough to understand the real injury, insist on justification, and grant an effective remedy. The judge is restrained enough to stay within jurisdiction, hear affected persons, distinguish legal invalidity from policy preference, and return responsibility when the violation has been cured.

Conclusion

Pakistan does not need judicial performance measured by the number of interventions. It needs review measured by constitutional reasons. The best rights-expanding cases demonstrate that text can be read generously without becoming unbounded. The strongest separation-of-powers cases demonstrate that an attractive outcome cannot supply missing jurisdiction, replace notice, or authorise a court to invent policy.

The contemporary Constitution makes these disciplines unusually visible. Public-importance fundamental-rights jurisdiction now belongs to the FCC on an application. Its own-motion call-up power concerns a pending case raising substantial constitutional interpretation. High Court relief is confined to an application and its contents. FCC and Supreme Court precedents occupy a newly specified hierarchy.

Judicial courage sometimes requires invalidating state action. At other times it requires refusing a popular but unauthorised remedy. The same method governs both: jurisdiction first, a stated legal defect, fair procedure, institutional realism, and relief fitted to the violation. On that account, activism and restraint are not rival virtues. Properly ordered, they are complementary disciplines of constitutional adjudication.

Bibliography

Cases

• Benazir Bhutto v Federation PLD 1989 SC 66.
• Chief Executive Officer, MEPCO v Muhammad Ilyas 2021 SCMR 775.
• Executive District Officer (Revenue) v Ijaz Hussain 2011 SCMR 1864.
• Federal Government Employees Housing Authority through its Director PLD 2025 SC 11.
• General Secretary, West Pakistan Salt Miners Labour Union v Director, Industries 1994 SCMR 2061.
• Government of Sindh v Sharaf Faridi PLD 1994 SC 105.
• Mian Irfan Bashir v Deputy Commissioner, Lahore PLD 2021 SC 571.
• Sadiq Poultry (Pvt) Ltd v Government of Khyber Pakhtunkhwa PLD 2023 SC 236.
• Shaheed Mohtarma Benazir Bhutto Medical College Lyari v Province of Sindh, CPLA No 534-K of 2024 (FCC, 30 April 2026).
• Workers’ Party Pakistan v Federation PLD 2012 SC 681.

Constitutional materials

• Constitution of Pakistan 1973, official consolidated text as amended to 21 November 2025.
• Constitution (Twenty-seventh Amendment) Act 2025.

Secondary scholarship

• Cheema, Moeen H., “The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan” (2016) 25 Washington International Law Journal 447.
• Dixon, Rosalind and Po Jen Yap, “Responsive Judicial Remedies” (2025) 14 Global Constitutionalism 323.
• Fuller, Lon L., “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353.
• Ghias, Shoaib A., “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf” (2010) 35 Law & Social Inquiry 985.
• Khan, Maryam S., “Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization” (2014) 28 Temple International & Comparative Law Journal 285.
• Kureshi, Yasser, Seeking Supremacy: The Pursuit of Judicial Power in Pakistan (Cambridge University Press 2022).
• Roach, Kent, “Dialogic Remedies” (2019) 17 International Journal of Constitutional Law 860.