Introduction:
The Constitution of the Islamic Republic of Pakistan (‘Constitution’), 1973 contains an exhaustive catalogue of fundamental rights, however, it does not expressly enumerate a general, standalone “right to privacy.”Although Article 14 of the Constitution provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable. This raises an important question of whether the constitutional privacy is limited to the privacy of one’s home, or does Article 14 embody a broader constitutional guarantee to personal privacy? This question has been adressed by the Supreme Court of Pakistan where it observed that Article 14 extends beyond the physical house of a person and covers the entire treasure of personal life.[1]The judgement, therefore, reflects a broader understanding of privacy. Yet, the absence of an expressly enumerated and comprehensive right to privacy raises a further constitutional question: can such a right be recognised as an independent fundamental right where it is not expressly worded in the constitutional text? The Federal Constitutional Court of Pakistan’s recent decision in Kashif Law Book House (‘KLBH’),[2] addresses this question while acknowledging that albeit the Constitution contains an exhaustive catalogue of fundamental rights, it remains a developing constitutional order capable of protecting rights that are implicit within its framework. This paper argues that “the right to privacy” should be constitutionally recognised as an unenumerated fundamental right under the Constitution, by understanding the particular right, examining its scope within Pakistan’s constitutional framework, history of constitutional interpretation, comparative constitutional jurisprudence on the subject, the principal counterarguments against such recognition, and whether privacy satisfies the three-tier test laid down in KLBH.
Understanding the Right to Privacy:
When Saint Augustine was asked: What is time? He replied: “I knew well enough what it is, provided that nobody asks me; but if I am asked what it is and try to explain, I am baffled.”[3] Similarly, there is no fixed definition to “privacy”. It is an open-ended concept, as its meaning is subjective to context. The right to privacy, or as the Americans describe it, the right to be let alone, has, in Anglo-American law, its origin in the “castle doctrine”: a man’s house is his castle – a phrase coined by the great English Jurist, Sir Edward Coke and adopted by the US Supreme Court in Weeks v. US (1914).[4] Adding to what was discussed earlier in the introduction, the Supreme Court of Pakistan’s decision in Muhammad Nawaz[5] is testament to the fact that the Court recognised the right to privacy as an integral part of the right to life and liberty under Article 9 of the Constitution. Moreover, conducting a DNA test without the consent of a person, being an infringement of the person’s fundamental rights of liberty and privacy under Article 9 and 14, itself supports how the Court has previously intertwined the two rights as fundamental, thus the right to privacy ought to be constitutionally recognised regardless of it being expressly engraved in the Constitution’s textbook.
The Scope of Privacy under the Constitutional Framework of Pakistan:
Article 14 provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable. While the expression “privacy of home” may, on a literal reading, appear to confine the protection to the physical premises of an individual, such an interpretation would overlook the close relationship between privacy, dignity and personal autonomy. Privacy, as discussed above, is not confined to protection against physical intrusion into one’s home; rather, it concerns an individual’s ability to preserve a sphere of personal life free from unwarranted interference.
The broader scope of privacy is further supported by the Supreme Court’s interpretation of the right to life under Article 9. In Shehla Zia,[6] the Court rejected an understanding of “life” confined to mere biological existence, and observed that life cannot be restricted to “vegetative or animal life” or mere existence between conception and death. Article 9 has consequently served as a constitutional basis for recognising rights that are not expressly enumerated in the constitutional text, including the right to accommodation,[7] the right to livelihood,[8] the right to a healthy environment and health,[9] protection against the forcible separation of spouses,[10] and the right to travel.[11] These developments demonstrate that the constitutional conception of life encompasses far more than physical survival and extends to those conditions necessary for a meaningful and dignified human existence. In this context, privacy, which protects an individual’s autonomy and ability to maintain a sphere of personal life free from unwarranted interference, bears a natural connection with both life and liberty. Correspondingly, the U.S Supreme Court in Katz[12] expanded the notion of privacy beyond physical spaces. The Court held that the Fourth Amendment protects people, not just places, and introduced the concept of a “reasonable expectation of privacy.” This decision laid the groundwork for privacy protections in various contexts, including electronic communications.[13]
The Constitution has been described as a “living tree” and an “organic document,” reflecting the notion that constitutional guarantees cannot be understood as static concepts detached from the society in which they operate.[14] The constitutional protection of fundamental rights may, consequently, develop through judicial interpretation where such development remains grounded in the text, structure and underlying values of the Constitution. Indeed, the scope and extent of the right to life under Article 9 is so widespread that it “embraces almost every aspect and facet of human existence.”[15] The existing constitutional framework thus provides a substantial foundation for considering privacy not merely as protection of the home, but as a broader protection of the individual and the personal sphere of life.
Purposive Constitutional Interpretation and Recognition of Unenumerated Rights:
Pakistani courts have for long taken a proactive approach towards constitutional interpretation — it is to be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid. This approach is known to be one of the means by which the Constitution adapts to the changes in society. The intent of a particular provision is looked upon to guide its application in modern contexts.[16] The doctrine of purposive interpretation has played a transformative role in Pakistani constitutional jurisprudence by empowering courts to adapt legal texts to contemporary realities and shield fundamental rights. The purpose of which is to make the Constitution a living document as one may imagine the consequences on affected institutions if legislative intent is not given effect to.[17] The doctrine is most effective when applied as a means of protecting constitutional values from infringement rather than amending constitutional text based on preferences. Courts serve a duty to remain faithful to the intent and purpose of constitutional provisions and ultimately the doctrine should be used as an instrument of fidelity and not creativity as any effort to supply perceived omissions in the Constitution, being subjective, can have disastrous consequences.[18]
The Kashif Law Book House Framework for Recognising Unenumerated Rights:
The KLBH judgement posits a three-tier criterion where any right sought to be extrapolated from Article 9 must bear an intrinsic nexus with life, remain anchored to our constitutional principles and be necessary for the preservation of our societal values. The framework is particularly relevant to the present question. The issue, therefore, is not whether privacy is a constitutionally valuable interest in general, but whether the existing constitutional foundations and jurisprudence are sufficient to satisfy the three requirements laid down in KLBH. The following section accordingly applies each limb of the KLBH test to the right to privacy and examines whether its constitutional recognition can be justified within the existing framework of the Constitution.
Applying the Three-Tier Test to the Right to Privacy:
The first limb of the KLBH test requires the proposed right to bear an intrinsic nexus with life. As established above, the Supreme Court has adopted a broad understanding of “life” under Article 9, extending it beyond mere physical existence to encompass the conditions necessary for a meaningful and dignified human existence. The question at this stage, therefore, is whether privacy bears the requisite connection with that constitutional conception of life.
I believe that it does. Privacy protects an individual’s ability to maintain a sphere of personal life free from unwarranted interference, exercise control over intimate aspects of the individual’s existence, and preserve personal and bodily autonomy. These are factors that enhance an individual’s quality of life; they are integral to the manner in which an individual is able to live as an autonomous and dignified person and the superior courts have declared time and again that an infringement of privacy is one of the worst violations of fundamental rights which significantly hampers one’s meaninful fulfillment of life.[19] A conception of life that protects meaningful human existence cannot logically exclude the ability of an individual to retain a private sphere within which personal choices and intimate aspects of life remain protected. This conclusion is consistent with Muhammad Nawaz,[20] where the Supreme Court connected privacy with the rights of life and liberty and recognised its protection beyond the physical home. Therefore, privacy forms part of the conditions through which an individual exercises autonomy, preserves dignity and experiences life as a meaningful human existence. It therefore bears the intrinsic nexus with life required by the first limb of the KLBH test.
Moving on to the second limb; it requires the proposed right to be in line with constitutional principles. The recognition of privacy satisfies this requirement because its foundations are already present within the constitutional text, particularly Articles 9 and 14. Article 14 expressly declares the dignity of man inviolable and protects the privacy of home, subject to law. Although the text does not expressly employ the broader expression “right to privacy,” it nevertheless recognises privacy as a constitutional value. Article 9, meanwhile, protects life and liberty. Read together, these provisions provide a constitutional basis for protecting the individual’s personal sphere from unwarranted interference. The jurisprudence of the Supreme Court reinforces this textual foundation. Muhammad Nawaz[21] is particularly significant because the Court did not treat privacy as a protection confined to the physical home. Instead, it connected privacy with the fundamental rights of liberty and privacy under Articles 9 and 14. The recognition of privacy as an unenumerated fundamental right would, as a result, not introduce an entirely new constitutional value. Rather, it would give substantive effect to a principle that is already expressly reflected in Article 14 and has already been developed through the interpretation of Articles 9 and 14. Hence, Privacy fits within this established approach. It remains anchored in constitutional principles rather than resting beyond the Constitution.
The third limb of the KLBH test requires that recognition of the proposed right be necessary for the preservation of societal values. Here the Federal Constitutional Court of Pakistan (‘FCCP’) understood societal values through Pakistan’s constitutional identity, considering Islamic law to justify protection of the right to read. The protection of privacy is consistent with the Islamic conception of personal and domestic privacy. The Qur’an expressly addresses the sanctity of the private sphere in Surah Al-Nur, 24:27–28;
“O believers! Do not enter any house other than your own until you have asked for permission and greeted its occupants. This is best for you, so perhaps you will be mindful.”[22]
The underlying principle is one of respect for the private sphere and protection against unwarranted intrusion. Privacy, therefore, is not a value foreign to the social and moral framework within which the Constitution operates. Justice Ali Baqar Najafi’s concurring note in KLBH is instructive in this regard, where he observed that the right to read should accompany the right to write, demonstrating that constitutional rights reinforce one another. Likewise, dignity and privacy work in harmony to protect freedom. In Ambreen Akram,[23] The Supreme Court held that compelling a wife to disclose intimate aspects of her marital life violates her rights to dignity and privacy while undermining equality, social justice and the Maqāṣid al-Sharīʿah. Privacy, satisfying the third limb, safeguards both personal autonomy and the Constitution’s Islamic and constitutional values.
Conclusively, the three limbs of the KLBH test, when considered together, support the constitutional recognition of privacy as an unenumerated fundamental right. It is pertinent to point out that recognising privacy as an unenumerated fundamental right would not require the Court to create a right wholly absent from the Constitution. The Constitution already protects privacy through Article 14, while the jurisprudence under Articles 9 and 14 has progressively expanded that protection beyond the physical home to the broader sphere of personal life. The proposed recognition would consequently constitute derivation rather than invention which is what the KLBHdecision provides that Courts cannot “invent” rights, but they may “derive” them.
Comparative Constitutional Jurisprudence on Unenumerated Rights and Privacy:
It is imperative to consider global jurisprudence on the subject. However, not binding, but being persuasive, it can assist Courts in defining and refining legal developments by providing alternate approaches and legal reasoning to complex questions of law. A similar constitutional development can be observed in the common law jurisdiction next door. The Indian Supreme Court’s decision in Puttaswamy[24] further demonstrates the importance of purposive interpretation in constitutional governance. The Court recognised the right to privacy as an intrinsic component of life, liberty and dignity despite its absence from the constitutional text. Notably, it had twice previously declined to recognise such a right in Sharma[25] and Kharak,[26] reflecting a comparatively narrower understanding of constitutional guarantees. Moving beyond this approach, the nine-member bench in Puttaswamy[27] adopted a purposive and living constitutional interpretation, holding that constitutional rights must respond to contemporary realities. The decision shows how purposive interpretation enables constitutions to evolve while preserving their underlying values and affording meaningful protection to fundamental rights.
In the United States, the due process clause serves an identical purpose. Justice Alito in Dobbs v. Jackson[28] was of the opinion that the said clause is to guarantee some rights which are not mentioned in the Constitution but any such right must be deeply rooted in the Nation’s history and tradition, inter alia, being implicit in the concept of ordered liberty. The FCCP paid heed to this particular opinion of Justice Alito in KLBH, and observed that, resultantly, it would not be alien for Pakistani courts as well to recognise a fundamental right not worded in the Constitution but inherent in it.
These comparative developments therefore demonstrate that the absence of an express textual guarantee does not, in itself, preclude constitutional recognition of a fundamental right where that right is inherent in the broader constitutional framework. More importantly, The FCCP, as the apex constitutional forum of Pakistan, expressly endorsed the relevance of such reasoning in KBLH.
Counterarguments and Judicial Restraint:
A question arises from the reasoning adopted by the FCCP in KLBH: If Article 14 itself has been interpreted by the Supreme Court of Pakistan to protect the entire sphere of personal life, then why is there a need to derive a broader right to privacy from Article 9? The answer lies in recognising that Articles 9 and 14 perform complementary, rather than competing, constitutional functions. Article 14 provides the express textual foundation for privacy and dignity, while Article 9 provides the broader interpretations of life, liberty and personal autonomy through which that privacy is exercised. Muhammad Nawaz[29] demonstrates that Article 14 cannot be confined to the physical home, having recognised privacy as extending to the “entire treasure of personal life.” The significance of Article 9, therefore, is not to replace or supplement an otherwise inadequate Article 14, but to endorse the constitutional status of privacy by placing it within the broader guarantees of life and liberty.
A similar concern could be raised by a potential objection that while purposive interpretation has noticeably strengthened constitutional governance by protecting fundamental rights, its inherent flexibility equally necessitates judicial restraint. Constitutional provisions are often broadly framed and capable of multiple interpretations. As observed in Hamza Rasheed Khan,[30] courts cannot create rights or obligations wholly detached from the Constitution, as doing so may exceed the permissible limits of judicial power and disturb the balance between the organs of the State. To answer this, I believe that the doctrine of purposive interpretation is most effective when employed as a means of protecting constitutional values from infringement rather than amending constitutional text based on preferences. It should be used cautiously and solely to protect the legislative intent and object of the provision. Considering the three-tier test provided in the KLBH judgement, to recognise unenumerated fundamental rights is an example of an excellent use of purposive interpretation as the legislative intent and object of Article 9 of the Constitution stands protected.
Conclusion:
The constitutional recognition of privacy does not require the creation of a new right, but the proper interpretation of rights already embedded within the Constitution. Article 14 provides an express constitutional foundation for privacy, while Article 9, as developed through Pakistani jurisprudence, protects the broader conditions necessary for a meaningful, fulfilling and dignified life. The three-tier test in Kashif Law Book House[31] provides the constitutional framework for deriving such rights, and privacy satisfies each of its requirements. In view of the foregoing, the right to privacy can legitimately be recognised as an unenumerated fundamental right under the Constitution of Pakistan, representing an exercise of constitutional interpretation and derivation rather than judicial invention.
[1] Muhammad Nawaz v. Additional District and Sessions Judge (PLD 2023 SC 461)
[2] C.P.L.A. No. 1505 & 1506 of 2024 (Kashif Law Book House)
[3] https://www.nobelprize.org/prizes/themes/nobel-prize-authors-on-time/
[4] Weeks v. US (1914) 232 US 383
[5] Muhammad Nawaz v. Additional District and Sessions Judge (PLD 2023 SC 461)
[6] Shehla Zia v. WAPDA (PLD 1994 SC 693)
[7] The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works (1994 SCMR 1548)
[8] Metropolitan Corporation, Lahore v. Imtiaz Hussain Kazmi (PLD 1996 Lahore 499)
[9] Shehla Zia v. WAPDA (PLD 1994 SC 693)
[10] Mst. Sajida Bibi v. Incharge Chouki No.2 (PLD 1997 Lahore 666)
[11] Nizar Ali Fazwani v. Federation of Pakistan (2025 CLC 1607)
[12] Katz v. United States (1967)
[13] https://www.journal-uamd.org/index.php/IJRD/article/view/394/356
[14]Khurshid Soap v. Federation of Pakistan, (PLD 2020 SC 641) (per Faisal Arab, J., at p. 83)
[15] Government of Sindh v. Dr Nadeem Rizvi (2020 SCMR 1)
[16] Hamza Rasheed Khan v. Election Appellate Tribunal (PLD 2024 SC 1028)
[17] Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan (2012 SCMR 6)
[18] Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar (PLD 2021 SC 391)
[19] Mst. Sajida Bibi v. Incharge Chouki No.2 (PLD 1997 Lahore 666)
[20] Muhammad Nawaz v. Additional District and Sessions Judge (PLD 2023 SC 461)
[21] ibid
[22] https://quran.com/an-nur/27-28
[23] Ambreen Akram v. Asad Ullah Khan (2026 SCMR 1)
[24] Justice K.S. Puttaswamy (Retd) and another v. Union of India and others (AIR 2017 SC 4161)
[25] M.P. Sharma v. Satish Chandra (AIR 1954 300)
[26] Kharak Singh v. State of Uttar Pradesh (AIR 1963 1295)
[27] Justice K.S. Puttaswamy (Retd) and another v. Union of India and others (AIR 2017 SC 4161)
[28] Dobbs v. Jackson (597 U.S 215)
[29] Muhammad Nawaz v. Additional District and Sessions Judge (PLD 2023 SC 461)
[30] Hamza Rasheed Khan v. Election Appellate Tribunal (PLD 2024 SC 1028)
[31] C.P.L.A. No. 1505 & 1506 of 2024 (Kashif Law Book House)
