By Zulfiqar Hameed, Police Service of Pakistan


The question of who can sue, specially in the Supreme Court, is vitally important as it forms part of the wider theory of separation of powers and quintessentially determines the distribution of political power between different branches of Government. In the words of learned Judge Hand "A constitution is primarily an instrument to distribute political power" and the distribution of Judicial power in a state largely revolves around the issue of who can sue. In Pakistan the ability of a 'person to sue is called locus standi whereas under American law it is known‑as standing to sue.

For the purpose of comprehension we have limited the scope of the present discussion to the constitutional jurisdiction of both Supreme Courts. In the Pakistani context we shall examine the recent developments in the exercise‑of the Supreme Court's Original Jurisdiction under Article 184(3) of the Constitution. In the case of U.S. the role of standing in the exercise of jurisdiction by the U.S. Supreme Court shall be examined.



Locus standi has been defined in the Black's Law Dictionary as follows:

"A place of standing; Standing in the Court. A right of appearance in a Court of justice, or before a legislative body, on a given question". (I)

In law locus standi denotes the right of a person to approach a Court of law because a wrong has been perpetrated on him for the redress of which the aggrieved is beseeching the Court.

It has been held that:

"In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court and it is a basic principle that a person seeking judicial review of an administrative or quasi judicial action must first show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. A petitioner does not have a standing to sue unless he is interested in and affected adversely by the decision of which he seeks review, and his interest must be of a personal not of an official nature. (ii)

At another place it has been held that, "it is only an aggrieved party who can apply to the High Court for a writ. No other‑person has a locus standi to invoke the Court's jurisdiction. "(iii).


"Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by chapter 1 of part II is involved, have power to make an order of the nature mentioned in the said article. "

Thus runs Article 184(3) of the Constitution enumerating the Original Jurisdiction of the Supreme Court of Pakistan.

By Article 22 of the 1956 Constitution, the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights was guaranteed, and the Supreme Court was empowered to issue directions, orders or writs for the enforcement of such rights. This power was also given to the High Court through Article 170. The difference was that whereas the right to invoke the Supreme Court's jurisdiction was itself a fundamental right the right to apply to the High Court was not, and that while the Supreme Court was under an obligation to grant appropriate relief by the writ method, the High Court had a discretion in granting or refusing such relief. (iv)

Under the present Constitution the position has been changed and the enforcement of fundamental rights comes in the purview of the Supreme Court only if a question of public importance involving the enforcement of fundamental right arises. Recent developments and interpretation by the Supreme Court has however brought about a sea‑change in the exercise of the power under Article 184(3) of the Constitution.


The Court has, of late, started taking a liberal view of Constitutional provisions in order to ensure "opened door of access to justice to all" (v) and "so as to extend benefit of same [a provision of fundamental right] to maximum possible" number of people (vi) (parentheses provided).

In the Nawaz Sharif case (vi) the Court dramatically asserted its power of Constitutional judicial review and in the process vastly broadened the boundaries of locus standi. The President dissolved the National Assembly and the Government of the petitioner in exercise of his power under Article 58(2)(b) of the Constitution. The plaintiff directly approached the Supreme Court for redress of the wrong under Article 184(3) read with Article 17 of the Constitution. In deciding the maintainability of the petition the Court held that:

"In scheme of Constitution, guarantee to form a political party must be deemed to comprise also right of political party to form Government ....Government of political party so formed, must implement programme of political party .... Any unlawful order which results in frustrating this activity .would, therefore, constitute an infringement of Fundamental Right 17 and a petition under Article 184(3) of Constitution for its enforcement, would, accordingly be maintainable."

It further held that:

"With passage of time and evolution of civil society, great changes occur in political, social and economic conditions of society, therefore, there is corresponding need to revaluate essence and soul of fundamental rights as originally provided in the Constitution. They require to be construed in consonance with changed conditions of society and must be viewed and interpreted with a vision to future. "

This approach of interpreting the Constitution and the fundamental rights reflects the "non‑interpretivist" approach of Court and shows its desire to go beyond the "four corners" of the Constitution.

In the celebrated Judges case (vii), the Supreme Court further clarified the issue of locus standi and regarding the question of maintainability of petition, held that:

"Remedies under Articles, 199 and 184(3) available in a High Court and Supreme Court are concurrent in nature and question of locus standi in a High Court, but not in Supreme Court (arises) when jurisdiction is invoked under Article 184(3) of Constitution ... ... Petitioner has rightly invoked jurisdiction of Supreme ‑Court under Article 184(3) .... (as) common questions of interpretation of Article relating to judiciary are involved, which are of public importance."

In the Army Officers case (viii), the Supreme Court further widened the scope of Article 184(3) and the locus standi requirement was further whittled down. The Court held that:

"Supreme Court while dealing with a case under Article 184(3) of the Constitution is neither bound by procedural trapping of Article 199, nor by limitations mentioned in that Article for exercise of power by the High Court in a case. Provisions of Article 184(3) are self‑contained and they regulate jurisdiction of Supreme Court on its own terminology ... ... Jurisdiction of Supreme Court in a case under Article 184(3) arises on existence of two conditions ....Firstly, that Supreme Court considers that matter brought before it involves a question of public importance, and secondly, that it relates to enforcement of any of Fundamental Rights guaranteed under Chapter I, Part II of Constitution. Apart from these two jurisdictional requirements, no other considerations are relevant..." It further held that: "There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always‑be considered as a case of public importance because a large body of persons is interested in case. "


Standing to sue is one of the doctrines of justiciability derived from the "case or controversy" requirement of Article III of U.S. Constitution. Article III, Section 2 provides that "the judicial power shall extend" to certain "cases" and "controversies". This has given rise to a body of law which imposes important restraints on the power of the Federal Judiciary.

The Supreme Court has described standing as "a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. "(ix) Stated generally, people have standing to challenge a Governmental action only if they are injured by the action.

The traditional view of the Supreme Court has been one marked by due care and caution so as not to adjudicate on a case which did not involve an invasion of people's rights. Legal injury is by definition the violation of a legal right and legal rights are conferred by the law. The determination of legal rights or their infringement is easy when the injury is apparent, as when a plaintiff claims that police conducted a raid or illegal search. However, with the rise of activist Government in the twentieth century, the concept of rights has become very diffuse and the injury claimed to have been inflicted is, more often than not, an intangible one. In these circumstances the role of the Court becomes all important. The views of the Court in the twentieth century have also played a not insignificant role in the sea‑change that has occurred in the interpretation and application of the doctrine of standing.


It was the logic of circumstance more than anything else that demanded a relaxation in the doctrine of standing. The congress had a role to play in this regard and it did through the two acts, namely: Declaratory Judgments Act (1934) and the Administrative Procedure Act (1946). These laws were meant to relax the traditional restrictions of the doctrines of ripeness and standing and sought to increase the power of the Courts to oversee administrative actions.

More changes in the doctrine occurred through the Court's interpretation during the years of Earl Warren's Chief Justiceship. Previously the question to be asked regarding standing used to be; was the plaintiff asserting a legally protected interest? This went against the plaintiff as there was no scope of expansion of the legal rights. By 1970 the Supreme Court had started asking the question if there was an "injury in fact" to the plaintiff. This view expanded the reach of Constitutional rights by divorcing the question of standing from the plaintiff's legal rights


Two cases in this regard merit some attention as they attempted to define the doctrine and in the process extended the reach of the concept of rights. The first is Flast v. Cohen (1968) (x) and the other is Association of Data Processing Services v. Camp (1970) (xi).

In the first case the Court allowed taxpayer standing (previously disallowed through Frothingam v. Mellon, 1923) to challenge expenditures alleged to violate the First Amendment's ban on an establishment of religion, such as allegedly occurs in case of public support to parochial education. In the second case, the Court allowed standing to anyone arguably within the 'zone of interests' that congress sought to protect. These decisions sought to authorize more substantial judicial supervision of Government action than earlier versions of the standing doctrine.


In the later years, however, the Court has used the instrument of 'injury in fact' to limit its activism again. In Constitutional cases, the Court identified two aspects of the standing doctrine: "injury in fact" and a showing of actual Government causation of that injury. The challenged Governmental action must have caused the injury and the Court must be able to order a remedy that will eliminate the injury. United States v. Richardson (xii) and Schlesinger v. Reservists Committee to stop the war (xiii) restricted the application of Flast and Simon v. Eastern Kentucky Welfare Rights Organization (1976) demonstrated the force of the causation requirement.

In Valley Forge Christian College v. Americans United for Separation of Church and State inc. (1982) and in Allen v. Wright (1984) the Court continued the trend of restricting the requirement of standing.

The Court has taken the view that the Constitutional dimensions of standing are related to the separation of powers. Allowing the Courts to act without requiring some form of standing would substantially alter the balance of powers between different branches of Government. The doctrine of standing is also important as a part of the theory of judicial review. Chief Justice Marshall had based the concept of judicial review on the twin planks of disavowing any adjudication on political issues (the political question doctrine) and on the Constitutional requirement that Courts adjudicate only in 'cases' and 'controversies' thus entailing the consequence that it would rule on any issue covered under these requirements. Disregarding standing would not only disturb the separation of powers but would also disturb the very foundations of judicial review.


(i) Black's Law Dictionary, 5th Edition, West Publishing Co., 1979.

(ii) Managing Committee v. Settlement Commissioner, PLD 1972 Lahore 245; Tariq Transport Co., Lahore v. Sargodha, Bhera Bus Service PLD 1958 SC (Pak.) 437; Mian Fazal Din v. Lahore Improvement Trust, PLD 1969 SC 223;

(iii) Labour Union v. West Pakistan Industrial Development Corporation PLD 1972 Lah. 489;

(iv) Sheoshankar v. The State of Madhya Pradesh, AIR 1951 Nag. 59; State of Bombay v. United Motors, AIR 1953 SC 252;

(v) Mrs. Shahida Zaheer Abbasi v. President of Pakistan and others PLD 1996 SC 632;

(vi) Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ;

(vii) Raees‑yl‑Mujahideen Habib‑ul‑Wahab‑ul‑Khairi v. Federation of Pakistan PLD 1996 SC 324;

(viii) Mrs. Shahida Zaheer Abbasi. .op cite.

(ix) Sierra Club v. Morton 405 US 727, 731 (1972);

(x) Flast v. Cohen, 392 US 83(1968);

(xi) Association of Data Processing Services v. Camp. 397 US 150, 154, 155, (1970).

(xii) 418 U.S. 166, 171‑173. (1974)

(xiii) 418 U. S. 208, 220 n 8 (1974).


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