Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 4742. In this matter between Human Rights Commission of Pakistan and another and Government of the Punjab JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title:Human Rights Commission of Pakistan and another vs Government of the Punjab

JUDGMENT

Reported As: 2024 LHC 4742 Result: Order Accordingly Judgment

JUDGMENT Tariq Saleem Sheikh, J. - This is a consolidated judgment for Writ Petition Nos. 10511/2020, 78009/2019, 73369/2019, and 75529/2019 as a common thread weaves through them. Background of the cases 2. The national print and electronic media have sporadically reported incidents of abuse involving young girls in various Dar-ul-Amans (shelter homes) across Punjab. In November 2019, Ms. Afshan Latif, a former Superintendent of Kashana (Lahore), a shelter for destitute and orphaned girls established by the Government of Punjab and managed by the Department of Social Welfare and Bait-ul-Maal (the "Social Welfare Department"), came in public and made horrifying statements about Kashana's state of affairs. She inter alia alleged that the girls residing there were sexually abused and subjected to forced marriages in violation of the law and their fundamental rights. The Kashana Scandal, as it came to be called, received extensive media coverage and prompted numerous complaints about other children's homes and orphanages. The public outcry led to an investigation by the Chief Minister's Inspection Team (CMIT) into Ms. Latif's allegations. The CMIT has submitted a copy of its report dated 15.10.2019 with its para-wise comments in this Court. The CMIT found that Ms. Afshan Latif's allegations were false and recommended disciplinary proceedings against her under the PEEDA Act 2006 for inefficiency and misconduct. Ms. Afshan has challenged those proceedings in Writ Petition No.76827/2019, which is currently pending. However, the CMIT made the following observations regarding Kashna's functioning/operations: "i) It appears that the Department of Social Welfare and Bait-ul-Maal Punjab has not issued proper SOPs regarding the functioning of Kashana. However, CMIT has received some self-prepared SOPs from Kashana Rawalpindi which were neither approved nor notified by the Department. However, according to the website of the Social Welfare and Bait-ul-Maal Department, the eligibility criteria for enrollment in the home for destitute girls (Kashana) is that the applicant should be of age 10 to 16, orphan or destitute girls, girls with single parents or at least with guardian are given preference of admission and applicant should be medically fit. The application form duly verified by the Chairman of the Local Zakat Committee or referred to by some gazetted officer is accepted. CMIT has observed that most inmates have families and homes and

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hail from Lahore. Some inmates were from Kasur and Sahiwal. As such, no homeless inmates were found at the time of visit. The Administrative Department has not framed a uniform and standard policy to accommodate only those inmates who fulfill the requirements. ii) There is no proper periodical inspection regime which is required for the check and balance system. Such a loose administration can create room for malpractices and corruption. The hierarchical structure, like the Divisional Director and Deputy Director, has no control over Kashana, Lahore. iii) No rules, regulations or policy is available with the Superintendent administering the affairs of Kashana. There is no uniform criterion for admission and relieving of inmate girls. So much so that the admission form does not provide any preconditions for admission of inmates. Moreover, there is no system for students to follow up in terms of their education and health. Copies of students enrolled in different schools are not properly checked. Further, no I.T., technical, or vocational training is being imparted to the inmates. v) Similarly, CMIT observed no nutritional, emotional, or psychological care to inculcate social and moral values in Kashana. Regarding medical aid, the Superintendent claimed that medical facilities were being provided to inmates but no such record was shown. As regards the nutritional needs of inmates, the Superintendent could only show a menu of last month, which means that there is a hotchpotch system that could not delineate how the meals were being provided to inmates and whether the meals were enough to fulfill their nutritional needs. As far as the psychological and emotional health of inmates is concerned, Kashana does not provide any psychological help to them. Kashana does not have a proper approval mechanism for shifting inmates to mental hospital. The procedure adopted by the Incharge Kashana was found inadequate. vi) No system of record management is in place. There was no separate register for the inventory of donations received from philanthropists. Prima facie, no transparent methodology is available to distinguish the expenditure incurred from regular budget or donations. The Superintendent could not produce any cash book, vouchers, ledger, or bill register, which means that the expenditure incurred from the government budget and donations are not being properly accounted for. vii) ... viii) The Superintendent Kashana was asked to provide minutes of the meetings of Advisory Committee which she failed to provide. However, the monthly progress report of Kashana pertaining to the month of July 2019 shows that the advisory committee has been de-notified, and it does not exist right now. The absence of SOPs, lack of an audit regime, and de-notification of the Advisory Committee show that Kashana has a dilly- dally administrative setup running on the whims of the In-charge. ix) As far as the position of budget and expenditure for the financial years 2016-17, 2017-18, and 2018-19, and the first quarter of 2019-20 is concerned, Kashana has received Rs.5,272,300/- against which an amount of Rs.3,652,228/- has been expended. Similarly, against the final release of Rs.11,562,800/-, Superintendent Kashana has incurred an amount of Rs.11,423,370/- during the financial year 2017-18. An amount of Rs.13,053,400/- was released during the financial year 2018-19, against which an expenditure of Rs.11,674,203/- has been booked. As regards the first quarter of the financial year 2019-20, an amount of Rs.3,061,000/- has so far been released, against which an expenditure of Rs.294,448/- has been shown. However, the fact remains that Superintendent Kashana or the Department could not provide vouchers or receipts of any amount expended during the aforementioned financial years." 3. The CMIT made the following recommendations to improve Kashana's working: i) A well-defined Standing Operating Procedures should be developed by the Department for Kashana, displayed at a visible place, and followed in letter and spirit. ii) An overarching policy framework stipulating admission and relieving of inmates may be devised whereby only destitute girl children from the age of 10 to 16 may be admitted after complete scrutiny of family history with evidence that girls being admitted should be orphan, homeless, coming from broken families, single parent who has no capacity or will to financially support her or the girls having no guardian. The Administrative Department ought to frame a uniform and standard policy to accommodate only those inmates who fulfill the aforementioned pre-requisites. A set of rules and regulations may also be devised by the Administrative Department in light of the Social Welfare and Bait-ul-Maal Department's policy. iii) A proper check and balance system may be put in place with a regular feature of periodical and random inspection and monitoring of Institutions like Kashana, which at present exhibits a loose administrative setup

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in order to curb the elements of malpractices and corruption. iv) The Department should arrange pre-service and in-service training facilities for the officers like the Superintendent, Warden, Social Medical Officer, and Social Welfare Officers on customized modules of the financial management role of DDOs and HRM to ensure that they could handle the institutions like Kashana in future following the procedures to be laid down in rules & policy. v) The educational, medical, and psychological needs of inmate girls of Kashana must be addressed, and regular services of doctors and psychologists should be provided to them. vi) Kashana does not have a proper approval mechanism for shifting inmates to mental hospital. The shifting of inmates to mental hospital or halfway home may be allowed only on the basis of medical certificates issued by the doctors. vii) A system of record management may be put in place in Kashana. A separate register for inventory of donations received from philanthropists may be maintained, and such inventory may be properly reported to the Administrative Department. Similarly, the record of expenditure incurred from regular budget may be maintained and inspected by an officer appointed by the Administrative Department. viii) The schooling of inmate girls may be properly checked with a follow-up system. Further, training of inmates in I.T., technical or vocational fields may also be ensured. ix) The success stories of the Child Protection Bureau and other institutions may be studied to make room for improvement in Kashana. The Administrative Department may like to benefit from the systems adopted by the successful institutions. 4. The then Chief Minister, Punjab, approved the CMIT's above mentioned recommendations and directed "immediate compliance" vide order dated 20.12.2019. The CMIT has furnished a copy of the said order to this Court. 5. The Kashana Scandal is directly at issue in Ms. Afshan Latif's Writ Petition No. 76827/2019, supra. While the present petitions also stem from that scandal, their focus is broader. They question the regulation and oversight of various shelter homes and protection facilities for women and children in Punjab. The Petitioners contend that the Chief Minister's order dated 20.12.2019 has been disregarded. They urge this Court to invoke its constitutional jurisdiction and issue directives to the relevant authorities to safeguard the fundamental rights of vulnerable women and children residing in these shelter homes. 6. In W.P. No. 78009/2019, the following questions of law emerge: (i) Under what legislative framework does the Government of Punjab establish and operate the shelter homes/Dar-ul-Amans and Women Protection Centres? (ii) Which government institution is responsible for the establishment, administration, and oversight mechanisms of shelter homes/Dar-ul-Amans and various women's protection centres established across Punjab? (iii) Has the Government of Punjab defined and distinguished the jurisdictions and mandates of the Punjab Social Welfare and Bait-ul-Maal Department and Women Protection Authority (established under the Punjab Women Protection Authority Act 2017) concerning shelter homes and protection centres? (iv) What is the status of the implementation of the Punjab Protection of Women against Violence Act, 2016, under which the Punjab Government is mandated to establish Protection Centres and shelter homes across Punjab? (v) What oversight mechanisms, including complaint management systems, are in place to ensure the safety, protection, and well-being of residents of the government-run Dar-ul-Amans/shelter homes, and are they adequate? (vi) How are the privately run shelter homes regulated? Is there any legislative framework in place? (vii) What specific measures should be implemented regarding the marriage of residents in Dar-ul-Amans, and what regulatory framework should govern such matters? 7. W.P. No. 10511/2020 raises the following issues: (i) How is the Province of the Punjab establishing and operating different institutions for the welfare of children? (ii) Which government institutions/departments are responsible for administering and overseeing the child protection mechanisms in Punjab? 8. Similar questions arise in the other two petitions.

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Pakistan's international commitments 9. The international legal framework concerning women's rights to protection and shelter is anchored in several key human rights instruments and conventions that collectively aim to address and mitigate the vulnerabilities faced by women globally. The Universal Declaration of Human Rights (UDHR) is central to this framework, which articulates the right to an adequate standard of living, including housing, under Article 25. This foundational document underscores the inherent dignity and equality of all individuals, laying the groundwork for subsequent treaties and declarations that specifically address gender-based discrimination and violence. 10. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979, is one of the most significant instruments in this regard. CEDAW mandates that States eliminate discrimination against women and ensure their access to rights in various spheres of life. It calls for the provision of shelters and support services to women who are victims of violence, emphasizing the importance of creating safe environments where women can seek refuge and support.[1] 11. Similar protections exist under the International Convention on the Elimination of All Forms of Racial Discrimination,[2] the Convention on the Rights of Persons with Disabilities,[3] and the Beijing Declaration and Platform for Action of 1995, to which Pakistan is a signatory. The Beijing Platform serves as a comprehensive global policy framework for gender equality and the fundamental rights of women and girls. Strategic Objective D.1. of the Declaration calls for integrating measures to prevent and eliminate violence against women. Paragraph 125(a) of Objective D.1 specifically recommends that States provide "well-funded shelters and relief support for girls and women subjected to violence, as well as medical, psychological, and other counseling services and free or low-cost legal aid where needed, as well as appropriate assistance to enable them to find a means of subsistence."[4] 12. Specifically on the right to housing as a vital component of the right to an adequate standard of living, the United Nations Special Rapporteur on Adequate Housing has provided several guidelines with specific implementation measures for States, public authorities, and regional and local governments for the implementation of the right to adequate housing.[5] The first guideline recognizes the right to adequate housing as "integral to core human rights values such as dignity, equality, inclusion, well-being, security of the person and public participation" and calls on States to "guarantee the right to housing as a fundamental human right linked to dignity and the right to life".[6] Guideline 9 calls for ensuring gender equality in housing and land by recognizing it "as a central component of women's right to substantive equality". The guidelines recognize domestic violence as one of the leading causes of homelessness for women and that the "lack of alternative housing options for women experiencing violence in the home places their security and lives at risk".[7] It calls for reforming laws, policies, and practices so they "alleviate the systemic disadvantages that women experience." Furthermore, the guideline also calls for the provision of emergency shelters and prompt access to front-line crisis services to those women who face household violence.[8]

13. The United Nations Convention on the Rights of the Child (UNCRC), adopted in 1989, is the primary international treaty that sets out the comprehensive framework for children's rights. Under the UNCRC, children are entitled to special protection and assistance to ensure their physical, mental, and social well- being. This includes the right to adequate housing and shelter, as articulated in Article 27, which calls on States Parties to ensure that every child has the right to a standard of living adequate for their physical, mental, spiritual, moral, and social development. 14. Moreover, the UNCRC mandates States to protect children from all forms of abuse, neglect, exploitation, and violence and to take measures to prevent such occurrences. Article 19 specifically addresses protection from violence, including physical and mental violence, injury, abuse, and neglect. States are required to establish appropriate social programmes for the prevention of abuse and the treatment of victims. The UNCRC also emphasizes the importance of the family environment for the upbringing and development of the child, advocating for alternative care when necessary and ensuring that it is consistent with the child's best interests. 15. In addition to the UNCRC, other international instruments and conventions further protect children's rights to protection and shelter. These include the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes the right of everyone, including children, to an adequate standard of living, which

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encompasses housing, and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography, which enhances protection against exploitation and trafficking. International Labour Organization (ILO) Convention No. 182 on the Worst Forms of Child Labour underscores protections needed for children's well-being, including shelter and protection from hazardous conditions. The United Nations Guidelines for the Alternative Care of Children emphasize the importance of family and community-based care and provide principles for the protection and well-being of children who are in alternative care settings. 16. Beyond the above-mentioned global agreements, regional human rights treaties also play crucial roles in protecting and promoting women's and children's rights. These instruments provide a basis for advocacy, policy development, and accountability, urging governments to adopt measures that effectively address gender inequalities and ensure that women have access to safe housing and support services. 17. Pakistan is a signatory to almost all the international conventions and agreements that protect the rights of women and children. Over the last two decades, the Government has taken various steps to incorporate human rights values into its statutes, policies, and action plans. Right to shelter under the Constitution of Pakistan 18. The framers of the 1973 Constitution of Pakistan (the "Constitution") envisioned the creation of a "new social order" based on egalitarian principles.[9] The right to housing, though not expressly mentioned in the Constitution as a fundamental right, can be inferred from Article 9 (right to life and liberty), Article 14 (right to dignity), and Article 25 (right to equality). In Shehla Zia and others v. WAPDA (PLD 1994 SC 693), the Supreme Court of Pakistan ruled that the word "life" in Article 9 covers all facets of human existence. It stated: "The word `life' has not been defined in the Constitution, but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally." The Supreme Court interpreted "life" to include all rights necessary for a free, proper, comfortable, and clean life, drawing parallels with the United States Constitution and Indian jurisprudence. Later, in Employees of the Pakistan Law Commission v. Ministry of Works (1994 SCMR 1548), the Supreme Court specifically ruled that the right to housing is a part of the right to life. In this case, the employees of the Pakistan Law Commission had filed a petition under Article 184(3) of the Constitution praying for allotment of official residences. The Supreme Court stated: "It is thus clear that Article 9 of the Constitution, which guarantees life and liberty according to law, is not to be construed in a restricted and pedantic manner. Life has a larger concept, which includes the right to enjoyment of life, and maintaining an adequate level of living for full enjoyment of freedom and rights. In this background, the petitioners' claim to be provided accommodation during the tenure of service, which is necessary for maintaining an adequate level of living, in our opinion, is covered by Article 9." (emphasis added) 19. The right to housing can be extrapolated within our Constitution if Article 9 is read in conjunction with 38(d), which falls in Part-II Chapter 2 of the Constitution under the heading "Principles of Policy". In Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180), the Supreme Court of India explained that the Principles of Policy must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. The relevant excerpt is reproduced below: "The Principles [of Policy] contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of their right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21." 20. While the right to housing, recognized as a fundamental right of citizens, obliges the State to ensure that every individual has access to adequate housing, reflecting the State's commitment to social justice and equality, the State's duty extends beyond this general obligation when it comes to vulnerable groups such as orphans, children, and women who are subjected to violence and abuse. Here, the doctrine of parens patriae comes into play, which refers to the State's role as a guardian for those who are unable to care for themselves. Under this doctrine, the State assumes a protective role, providing housing, essential care and

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support systems tailored to the specific needs of these vulnerable populations. Safe spaces are fundamental for women and girls to access their rights. A network of well-run, adequately resourced, and effective shelter homes and protection centres is vital for women and girl survivors of violence. With proper regulation and oversight, these shelter homes and protection centres can become sanctuaries of hope, resilience, and empowerment for women and girls, supporting their rehabilitation and reintegration into society. History of the establishment of government-run shelter homes and protection centres for women 21. The history of the establishment of shelter homes/Dar-ul-Aman is not well documented. Apparently, the first Dar-ul-Aman, Dua, was established in Lahore in 1963 by a private institution Anjuman-e-Himayat-e- Islam.[10] Although the Lahore Dua was private, it had patronage from the Social Welfare Department.[11] 22. The Government of Punjab also established Dar-ul-Falahs, which are mother and children homes in which widowed/divorced, separated, and needy women with children are admitted and over a period of time rehabilitated in society. As per the Social Welfare Department's website, the first Dar-ul-Falah was established in Sialkot in 1966. There are now six Dar-ul-Falahs working in the divisional headquarters of Punjab (Lahore, Sargodha, Rawalpindi, Sialkot, Multan, and Bahawalpur), and each home can accommodate 30 women along with their children.[12] 23. Subsequently, during the period between 1973 and 1986, the Government of Punjab, under the then Ministry of Social Welfare, Women Development and Bait-ul-Maal, established eight Rescue Homes for women who were victims of violence had left their homes and needed immediate shelter.[13] Rescue Homes were first established in the eight former divisional headquarters of the Punjab (Lahore, Gujranwala, Faisalabad, Rawalpindi, Sargodha, Multan, Bahawalpur, and Dera Ghazi Khan).[14] 24. In 2004, the Social Welfare Department envisaged a scheme, namely "Strengthening and Capacity Building of Eight Existing Shelter Homes & Establishment of Shelter Homes in the remaining 27 districts of Punjab." As a result, 27 new women's shelter homes, called "Dar-ul-Amans" were established.[15] As of today, there are a total of 36 Dar-ul-Amans established in all districts of Punjab, and these homes claim to accommodate 20 to 50 women at a time, as per the Social Welfare Department website.[16] 25. The Federal Government established the Shaheed Benazir Bhutto Human Rights Crisis Centres for…

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