The halls of five-star hotels in town often serve as the backdrop for donor-sponsored conversations on the state of fundamental rights in the country, with the rights of the marginalised often taking centre stage. The multiple offshoots of concerned governmental departments are second to none when it comes to such events, where stakeholders sit and lament the state of affairs and share their views on where and what the challenges are.
The one thing that does not change is that in all such sittings, you will hear at least one person get up and say that Pakistan is an over-legislated country; we have the laws, but implementation is the problem. I am guilty of this as well. I have said the same on several occasions, but this really is the crux of the matter—implementation: who is responsible for it and how?
Implementation does not rest on any one institution. It is a collective responsibility shared across the justice sector: police, medico-legal officers, prosecutors, the judiciary, parliamentarians, and administrative bodies. It requires action in practice, in the field. Implementation is not a checkbox on paper, as passing a law may be. It requires actual budget allocation, the framing of rules, the hiring and training of personnel, and, more than anything else, it requires intention and will on the part of the concerned stakeholders. If that is missing, or where there is rigid insistence on maintaining the status quo, we will continue to hear that sentence in every conference and in every meeting held to decipher why implementation is the problem.
Within this ecosystem, the judiciary occupies a uniquely powerful position. Judicial decisions do not merely resolve disputes; they shape jurisprudence, influence how laws are understood, and signal to society how rights will be treated in practice. Litigants pay close attention to these signals: how long cases take, how judges engage with arguments, and what outcomes emerge. These factors shape whether individuals even consider approaching the courts. Increasingly, many who do so are those with no alternative, while others use the system to delay or frustrate justice.
There is a growing disconnect between those seeking justice and those tasked with delivering it. Women, in particular, remain disenfranchised, as legal interpretation continues to be filtered through a largely male-centric lens. A troubling example is the recent judicial trend of conflating rape with fornication—two fundamentally distinct offences.
Rape, under Section 375 of the Pakistan Penal Code, is a non-consensual act. The law defines consent as an unequivocal, voluntary agreement communicated through words or conduct. It explicitly clarifies that a lack of physical resistance does not imply consent. Fornication, by contrast, is premised on consent. The distinction is clear in law, yet recent Supreme Court decisions have blurred it by converting rape charges into fornication.
When courts fail to engage meaningfully with gender-based concerns, they not only weaken individual cases but also signal that such arguments are peripheral
This conflation is not only legally flawed but deeply harmful. As Justice Ayesha A. Malik noted in her dissent in the Muhammad Imran case, consent cannot be imputed by the court. Yet, by recharacterising rape as fornication, courts risk exposing complainants to prosecution under Section 496-B of the PPC. This creates a chilling effect: victims may choose silence over the risk of criminalisation.
As Barrister Rida Hosain aptly observed in a recent academic discussion held at LUMS as part of their Gender and Law Clinic, if a judge is not convinced by the prosecution’s case for rape against the accused—for instance, due to delays in filing a First Information Report—the appropriate course is acquittal, not conversion of charges, especially where the elements of the two offences are separate and distinct, with one based on consent and the other non-consensual. Introducing fornication into rape cases is unnecessary and regressive, evoking the legacy of the Hudood Ordinances. At times, it is deeply unsettling to realise how easily male judges can undo years of advocacy for women’s rights with the stroke of a pen.
This concern extends beyond criminal law. In family law, for instance, the right of a woman to seek khula without proving cruelty has long been settled. Nevertheless, judges of the Supreme Court in a recent case have reportedly sought the assistance of the Council of Islamic Ideology on whether a decree of khula can be granted on grounds other than a husband’s cruel conduct towards his wife. Although no negative finding has yet been handed down, as advocate Maliha Zia Lari noted, the concern is not about anticipating a bad outcome but about preventing a quiet shift in the law through such questioning.
The composition of benches in such cases also matters. Although the absence of female judges does not invalidate proceedings, it does underscore the importance of perspective. Issues that directly affect women’s autonomy and lived realities require careful engagement with structural inequalities and, perhaps, lived experience. As Lari further emphasised, while men have unilateral rights of talaq, women must approach courts for khula. Tightening this process only deepens existing disparities.
Concerns about judicial approach are not limited to substantive outcomes; they extend to how courts engage with arguments relating to gender. In several recent cases, gender-based arguments have been sidelined or inadequately addressed.
In 2022, advocate Kainat Altaf challenged the exclusion of women from nominations for judicial appointments in the Balochistan High Court. Her petition was dismissed in limine, with the court relying on formal equality—that is, the absence of a bar on women entering the legal profession—while ignoring structural barriers to advancement. The judge also stated that there were women in the subordinate judiciary, that there had been a female Chief Justice of the Balochistan High Court, and that there had been consultation with ‘stakeholders’, none of whom had recommended the name of a female lawyer.
The ‘consultation’ in question was with all men; no woman had been consulted. Moreover, the false equivalence drawn between judges in the subordinate judiciary and the higher judiciary overlooks the fact that the recruitment and appointment processes are entirely different. Therefore, the presence of women in the subordinate judiciary does not preclude discrimination in appointments to the higher judiciary.
Similarly, in a petition before the Sindh High Court challenging the composition of the Judicial Commission of Pakistan, the central issue was the absence of a framework guiding representational appointments. While Article 175-A of the Constitution calls for the inclusion of women, non-Muslims, and technocrats, it provides no criteria for how such representation is to be ensured. The court, however, focused narrowly on defining “technocrat”, sidestepping the broader questions of representation, transparency, and purpose that formed the crux of advocate Maria Ahmed’s petition.
A comparable pattern emerged in challenges to amendments to the Legal Practitioners and Bar Councils Act and Rules. The Lahore High Court treated provisions with a disproportionate impact on women as simple enhancements of qualification criteria, without considering their real-world implications for the representation of women in bar councils.
At a minimum, litigants are entitled to have their arguments heard and addressed. When courts fail to engage meaningfully with gender-based concerns, they not only weaken individual cases but also signal that such arguments are peripheral.
I used to think that increasing the number of women in the judiciary was a key point of reform. However, recent developments suggest that sustaining progressive jurisprudence is an equally urgent challenge.
Earlier, the fight was simply about ensuring fair representation in the judiciary; now, it seems, it is also about sustaining that progress so that the implementation of rights and laws on paper can translate into meaningful and effective justice for people
In Mst. Salma Raza v. Government of Khyber Pakhtunkhwa, the Federal Constitutional Court appears to have misconstrued the Supreme Court’s earlier ruling in Mubashir Iqbal Zafar v. Ministry of Defence. The Supreme Court had recognised the Wedlock Policy as creating a “legitimate expectation”, not an absolute right, that spouses be posted together where possible. The Federal Constitutional Court, however, characterised it as an enforceable entitlement and criticised the Supreme Court for elevating non-justiciable principles.
This reading overlooks the Supreme Court’s reliance on constitutional provisions relating to the protection of the family and the participation of women in national life. It also ignores the factual distinctions between the cases: one involving routine transfers affecting family life, the other concerning extended deputation. By applying the logic of a temporary deputation case to strike down the Supreme Court’s findings on service transfers, the Federal Constitutional Court has stretched those findings despite the facts being entirely different.
Such reasoning has broader implications. It weakens progressive interpretations, legitimises administrative arbitrariness, and signals a retreat from rights-based analysis. Increasingly, courts appear inclined to decide cases on narrow technical grounds rather than engaging with constitutional principles.
This brings me to an important question: whether recent constitutional amendments have contributed to a more restrained judiciary—one less willing to assert itself as a guardian of fundamental rights. While causation may be debated, the perception is difficult to ignore. Courts seem increasingly deferential to executive and legislative authority, often at the expense of rights-based reasoning.
For ordinary citizens, particularly women, this shift is significant. The cumulative effect of these developments is deeply concerning. Whether through the conflation of offences, the revisiting of settled principles, the ignoring of gendered arguments, or the misreading of judgements rooted in fundamental constitutional rights and principles of policy, the judiciary risks eroding the very rights it is tasked with protecting.
For women, these trends represent more than isolated setbacks; they signal a broader judicial retreat. Courts are meant to serve as avenues for redress, not as forums that reinforce existing power structures. When rights are diluted through interpretation or ignored through omission, they become hollow promises. It also shows how work focusing on issues that affect women and families can now be easily undone without appeal or review.
Implementation, after all, is not just about enforcing laws; it is about how those laws are interpreted and applied. When judicial reasoning itself becomes a barrier, implementation falters at its most critical point. Whether judgements rooted in rights, policies, and principles are misread or gendered arguments are ignored, these trends appear to amount to a judicial snub of women’s rights—one that operates not through overt denial but through subtle shifts in reasoning, emphasis, and engagement. If left unaddressed, these shifts risk hardening into precedent, making it even more difficult for women to access meaningful justice.
Earlier, the fight was simply about ensuring fair representation in the judiciary; now, it seems, it is also about sustaining that progress so that the implementation of rights and laws on paper can translate into meaningful and effective justice for people.