According to the Constitution of Pakistan the sovereignty of the Universe belongs to Almighty Allah alone and the authority in the land would be exercised by the people of Pakistan within the limits prescribed by Allah as a sacred trust.

The State shall exercise its powers and authority through the chosen representatives of the people.

Although piety and exaltations of exercising authority within the limits prescribed by Allah as a sacred trust remain in theory to administer all the disciplines of life yet we see that the people of Pakistan have failed as an instrument of change. The people's power exercised through a free and fair vote has always met a 'still death' or has carried an indeterminate disability.

People are told that they are the ones who shall exercise authority within the limits prescribed by Allah as a sacred trust, yet the events of 3 November 2007 stand to testify that there is more than enshrined in the constitution. There is one person in Pakistan who can manage an abuse of authority in utter disregard of these two stipulations.

He has remained unmindful of the sovereignty of Allah and the authority of people as a sacred trust. He can take supra-constitutional action and break the limits prescribed by Allah. This one person has surfaced more than once in the last sixty year history of Pakistan as a sovereign State.

It is the chief of army staff who has solemnly declared that "In the name of Allah, the most Beneficient, the most Merciful...'he' will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that 'he' will not engage 'himself' in any political activities whatsoever and that 'he' will honestly and faithfully serve Pakistan in the Pakistan Army as required by and under the law."

The representatives of the people too on their part have broken their covenant with Allah that they will exercise their authority as a sacred trust and have on all these occasions through parliament and through the judiciary validated the supra-constitutional actions of army chiefs. People jumping the traffic signals have been punished but COA's who have committed 'high treason' under the constitution seem to have been rewarded.

"Proclamation of emergency", by General Pervez Musharraf on 3 November however is far different to the actions of other COA's in the past. He has charge sheeted the members of the judiciary appointed in accordance with the constitution and has removed them without due process of law. At the same time he has retained some who expressed their obeisance and made up the short fall by bringing in other judges of his choice. The judicial set up in Pakistan has lost the constitutional sanction and remains highly unpopular and suspect in public.

As a consequence of Lawyers and civil society struggle against the reference brought against the chief justice, the Superior Judiciary in Pakistan for the first time in its history woke up to the use of Public Interest Litigation (PIL) as an instrument of human rights protection. It began to provide socio-economic and political justice. In USA, UK, India and many other developing democracies Public Interest Litigation (PIL) is regarded as an instrument of social transformation.

Supreme Court in Pakistan is 28 years late in its understanding of PIL and far behind in its institutional independence to the Supreme Court of India. First PIL was filed by an advocate on the basis of the news item published in the Indian Express in 1979. It highlighted the plight of thousands of under-trial prisoners held in various jails in Bihar. These proceeding led to the release of more than 40, 000 under-trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

Indian Supreme Court has brought justice within the reach of poor, disadvantaged and vulnerable people. PIL in India has developed as an instrument of human rights protection.

Public interest cases have provided socio-economic and political justice to a large number of people who are poor, lacking in knowledge of the law, socially and economically deprived and who would not normally approach the court. It is based on the notion that all individuals are equal and should enjoy their fundamental rights equally irrespective of their poverty, illiteracy, and lack of knowledge. It is a tool to promote a newly created rights based jurisprudence.

Such cases are very important when the victim does not have the necessary resources to commence litigation or his freedom to move to court has been suppressed or encroached upon. In such situations the court can itself take cognisance of the matter and proceed suo moto, (act on its own cognizance) or cases can commence on the petition of any public-spirited individual.

One of the best things that have happened in India in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation. Public interest litigation, in Indian law, means litigation for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court.

PIL in India has been used to provide various types of relief to under trial prisoners, to improve the conditions in protective homes for women, to check custodial violence, for the release of bonded labour, for the enforcement of labour laws, for environment protection and so on. The Indian judiciary through PIL has conveyed the message to all government agencies that it cannot stand idle spectator, principally when there is abuse of power and mal-governance.

In India the rules of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

Unfortunately the suo moto interest of the judiciary in Pakistan came as a surprise to the Executive composed of imperial civil and military bureaucracy. Pakistan has inherited an imperial army and an imperial bureaucracy. And these two institutions continue to bite with imperial teeth and walk with an imperial aura. The old habits die hard and the two bureaucracies were disturbed by an air of accountability that had started to knock at their doors. It rattled their cage when the issue of General Musharraf's qualifications as presidential candidate and the role of intelligence agencies as law enforcing agents came under judicial scrutiny. The government agencies did not have the heart to be reminded that courts cannot stand idle spectator, principally when there is abuse of power and mal-governance.

Chief of Army Staff decided to charge sheet the members of the judiciary appointed in accordance with the constitution. He accused the judges of "working at cross purposes with the executive and legislature in the fight against terrorism and extremism". He also accused them of "interference in government policy". In proving his wolf and lamb tale he did not take the constitutional path and the due process.

He decided to have a go at the independence of judiciary and it could only happen if he violated the Sovereignty of Allah and authority prescribed by Allah. He took a supra-constitutional action and sacked the judges. He has retained some who expressed their obeisance and made up the short fall by bringing in others of his choice. Pakistan's judiciary is now full of General's judges and General's favour means more to them than the 'sacred trust of Allah'. Constitutional judges are out and under arrest.

General misunderstood the doctrine of 'citizen's standing' which marks a significant expansion of the court's rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.

If General had looked over and above his shoulders he could have very easily compared the recent Public Interest of the Supreme Court of Pakistan with the case law established by the Supreme Court of India. In the words of Supreme Court of India in People's Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473, "We wish to point out with all the emphasis at our command that public interest litigation...is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief".

In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree.

In oriental Hindu philosophy the protection of the public interest used to be protected by judicial activism. Brihaspati Smriti has mentioned that judges should not just rely on sastras (laws) rather they should use their wisdom to uphold justice.

PIL was first introduced by American courts during 1970s. Indian courts also introduced it after the emergency of 1975. Indian judiciary has utilized PIL very extensively to develop new jurisprudence for protection of various human rights connected with social justice.

PIL has been renamed as the Social Action Litigation (SAL) in India because it has focused on social justice there. In the UK the judiciary stood in favour of PIL when Lord Denning played an active role in liberalizing the rule of locus standi in public cause. He granted locus standi to file public interest litigation for the first time in Balckburn vs. Attorney General. PIL was not created by the traditional norms of constitutional or legislative process but created by judicial activism on the basis of practical expediency in those countries and an important aspect of this process was the relaxation of the rule of locus standi.

PIL overrides the adjudication insisted upon observance of procedural technicalities such as locus standi and adherence to adversarial system of litigation. It favours the marginalized and disadvantaged groups. PIL has moulded the state into the instrument of socio-economic change. It promotes social justice and helps courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs.

The Indian PIL is the improved version of PIL of U.S.A. According to "Ford Foundation" of U.S.A., "Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others".

The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor.

Notably two justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing.

In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows stark difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence.

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under-trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, 000 under-trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders S. C. directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also held the right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation.

In (Citizen for Democracy v. State of Assam, (1995) 3SCC 743), the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.

According to the jurisprudence of Article 32 of the Constitution of India, "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed". Ordinarily, only the aggrieved party has the right to seek redress under Article 32.

In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, 1981 (Supp) SCC 87, articulated the concept of PIL as follows, "Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons".

In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, J.T. 2003 (7) S.C. 312, S.C. held, "The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings... Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice".

Flexibility has been introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431, court rejected the defence of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. In R.C. Narain v. State of Bihar, court legislated the rules for the welfare of the persons living in the mental asylum. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible.

The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579, S.C. held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has 'sufficient interest' to maintain a petition under Article 32.

Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

Through the mechanism of PIL, the courts seek to protect human rights in the following ways:

1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL.

2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any public spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction.

3) By fashioning new kinds of relief's under the court's writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims.

4) By judicial monitoring of State institutions such as jails, women's protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights.

5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation.

PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It's the sword of every one used only for taking the justice.

PIL has been used as a strategy to combat the atrocities prevailing in society. It's an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment.

PIL develops a new jurisprudence of accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. This legal recourse is an important instrument of social engineering. It calls upon every member of civil society to exercise his or her 'right to interfere' in any just cause, in equity and in good faith. PIL has to be free from private and embedded interest.

It is unfortunate that General Musharraf felt that Supreme Court's Public Interest amounted to "humiliating treatment meted out to government officials by some members of the judiciary on a routine basis during court proceedings has demoralised the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction".

The subterranean interest was self serving. To survive the ongoing judicial scrutiny he decided on 3 November 2007 that "I hereby order and proclaim that the constitution of the Islamic Republic of Pakistan shall remain in abeyance." Now the General has the hand and the cake to himself without any regard to the Sovereignty of Almighty Allah and the authority of public as a sacred trust from Allah.

On the other hand the deposed Chief Justice Iftikhar M Chaudhry has said, "I am still constitutionally the Chief Justice of Pakistan", and the allegation levelled against the Judiciary of releasing terrorists was totally baseless, as Judiciary could never back anyone involved in extremism or terrorism. "The ill governing set up left people with no other option but to knock at the Supreme Court door", he said.

The civil society and its institution in Pakistan have live with and learn from others. The closest and in immediate proximity are the civil society and the institutions of India. Supreme Court of India has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice.

Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

It is high time that General Musharraf and his imperial military and civil bureaucracy revisit the wisdom of disturbing the independence of judiciary and gagging the media.