Nusrat Bhutto vs COAS Case (PLD 1977 SC 657)
Begum Nusrat Bhutto v. Chief of Army Staff & Federation of Pakistan (PLD 1977 SC 657)
Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) is a landmark judgment in the constitutional history of Pakistan. Delivered by the Supreme Court following the military takeover by General Zia-ul-Haq in July 1977, this case examined the legality of martial law, the suspension of the 1973 Constitution, and the protection of fundamental rights.
It set a significant precedent on the doctrine of necessity, the limits of judicial review during constitutional crises, and the role of the judiciary in legitimizing extra-constitutional regimes. This case remains a critical point of study for law students, lawyers, and scholars interested in constitutional law, civil liberties, and the evolution of civil-military relations in Pakistan.Background & Political Context
In the wake of the controversial general elections held in March 1977, widespread allegations of rigging led to a political crisis across Pakistan. The opposition alliance, Pakistan National Alliance (PNA), launched a mass protest movement against the ruling Pakistan Peoples Party (PPP) government led by Prime Minister Zulfikar Ali Bhutto. As the unrest escalated and law and order deteriorated, General Muhammad Zia-ul-Haq, then Chief of Army Staff, imposed martial law on 5th July 1977 by overthrowing the civilian government.
The Constitution of 1973 was held in abeyance, Parliament was dissolved, and a Provisional Constitutional Order (PCO) was issued. In this context, Begum Nusrat Bhutto filed a constitutional petition in the Supreme Court under Article 184(3), challenging the legality of the detention of her husband and other PPP leaders, and questioning the constitutional validity of the military takeover.
Facts of the Case
A petition under Art. 184(3) of the Constitution of Mr. Zulfrqar Ali Bhutto, former Prime Minister of Pakistan, and ten other leaders of the Pakistan People’s Party under Martial Law Order No. 12 of 1977.
The petition states that Mr. Zulfrqar Ali Bhutto and the ten other leaders of the Pakistan People‘s Party were arrested in the early hours of the 17th of September, 1977, and detained in various prisons in the four Provinces of Pakistan. It is stated that on the evening of the 17th of September, 1977, the Chief of the Army Staff made a public statement, in which he leveled highly unfair and incorrect allegations against the Pakistan People’s Party Government and the detenus by way of explaining away their arrest and detention. He also indicated his intention of placing the detenus before Military Courts or Tribunals for trial so as to enforce the principle of public accountability.
The petition avers that this action has been taken against the detenus in a mala fide manner, with the ulterior purpose of preventing the Pakistan People’s Party from effectively participating in the forthcoming elections, which were scheduled to be held during the month of October 1977.
Legal and Constitutional Questions Before the Supreme Court
- Whether the detention of Zulfikar Ali Bhutto and other political leaders was lawful under the Constitution of 1973.
- Whether the imposition of martial law and dissolution of the National Assembly were constitutionally valid.
- Whether the Supreme Court had jurisdiction under Article 184(3) of the Constitution to hear the petition during the suspension of the Constitution.
- Whether the military takeover could be justified under the doctrine of necessity.
- Whether fundamental rights could be suspended during the abeyance of the Constitution by a military authority.
- Whether the Provisional Constitutional Order (PCO) could override the 1973 Constitution without the mandate of Parliament.
- Whether the judgment in State v. Dosso (PLD 1958 SC 533) and the application of Kelsen’s theory were still relevant and applicable.
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Whether the actions of the military regime were protected under any
legal doctrine or constitutional provision.
Petitioner’s Arguments
1. Reliance on Asma Jilani’s Case (PLD 1972 SC 139):
It was contended that the principle laid down in Asma Jilani v. Government of the Punjab declared the imposition of martial law by usurpers as unconstitutional, and any extra-constitutional regime as void ab initio. Therefore, the precedent negated the legal sanctity of any such military intervention.
Lack of Constitutional Authority:
The Chief of Army Staff, being a subordinate functionary under the Constitution, had no legal authority or competence under the Constitution of 1973 to abrogate, suspend, or hold the Constitution in abeyance, nor to assume the role of the Chief Martial Law Administrator (CMLA).
Violation of Article 6 of the Constitution:
The counsel argued that the imposition of martial law and suspension of the Constitution amounted to subversion of the constitutional order, attracting the penal consequences contemplated under Article 6 of the Constitution, as the Constitution remained the supreme law of the land and was never formally abrogated.
Infringement of Fundamental Rights:
The detention orders issued under the martial law regime constituted a blatant violation of the fundamental rights of the detenues, particularly those enshrined in:
- Article 9 (Security of person),
- Article 10 (Safeguards as to arrest and detention),
- Article 17 (Freedom of association), and
- Article 25 (Equality of citizens).
Respondent’s (State’s) Arguments
The learned Attorney General, appearing on behalf of the respondents, advanced the following contentions before the Honourable Supreme Court:
Reliance on State v. Dosso (PLD 1958 SC 533):
It was contended that the precedent set in Dosso’s Case recognized the validity of a successful revolution or coup d’état, wherein a change in the constitutional order—if effective—automatically results in the substitution of the existing legal framework.
Establishment of a New Legal Order:
The counsel argued that with the proclamation of Martial Law on 5th July 1977, the 1973 Constitution was lawfully suspended, and a new legal order came into force through the doctrine of necessity.
New Grundnorm Established:
It was submitted that the “Laws (Continuance in Force) Order, 1977” operated as the new grundnorm or foundational legal norm of the State, replacing the supremacy of the Constitution during the interregnum.
Doctrine of Revolutionary Legality:
The counsel maintained that the military intervention constituted a “revolution” in the legal sense—a meta-legal event which, once successful and accepted by all organs of State, gains legitimacy under the doctrine of revolutionary legality.
Effectiveness and Institutional Acceptance:
It was further argued that since all organs of the State, including the judiciary, executive, and military, had accepted the new legal regime and were functioning under it, questions of legality or illegality must now be judged within the framework of the new constitutional arrangement.
Martial Law as a Temporary Measure:
Finally, the respondent submitted that the imposition of Martial Law was a transitory arrangement, necessitated by extraordinary circumstances, and that general elections were imminent, which would restore constitutional and democratic rule.
Applicable Jurisprudence & Theories
Kelsen’s Theory
Kelson’s Theory that a successful revolution satisfies the test of efficacy and becomes a basic law creating fact is not universally accepted, and it has not been found consistent for full application in all revolutionary situations coming before the court for adjudication as to the validity of new Legal Orders resulting from such revolutions.
Kelsen’s Theory is open to serious criticism on the ground that by making effectiveness of the political change as the sole condition of morality of its legality, it excludes from consideration sociological factors of morality and Justice which contribute to the acceptance or effectiveness of the new Legal Order. It must not be forgotten that the continued validity of the ground-norm has an ethical background, insofar as an element of morality is built in it as part of the criterion of its validity.
State Necessity and Welfare of People
Widespread allegations of massive interference with sanctity of ballot by Government officials in favor of candidates of the ruling party, a national wave of resentment giving birth to country-wide protest agitation, disturbances getting out of control of civil Armed Forces and resulting in heavy loss of life and property.
Calling out of troops by Federal Government, consequence imposition of Local Martial Law in several important cities; requisitioning of military assistance by local authorities in smaller towns and cities not having desired result, rigging and official interference with elections in favor of ruling party candidates established by judicial decisions in some cases displaying general pattern of official interference.
Public statements of the Election Commissioner concerned ratifying widespread allegations of Opposition regarding official interference with elections and endorsing demand for fresh elections; Prime Minister in circumstances offering himself to Referendum but such offer not having any impact at all and demand for his resignation and for fresh elections continuing unabated plan resultantly dropped.
Doctrine of Necessity:
The question of considering the application of the doctrine of necessity has obviously arisen in this case as the court is not persuaded that the military intervention provides its own legality simply for the reason that it has been accepted by the people of Pakistan, and has become effective in that sense. Even otherwise, if it is assumed that the old Constitution has been completely suppressed or destroyed, it does not follow that all the juridical concepts and notions of morality and justice have also been destroyed, simply for the reason that the new Legal Order does not mention anything about them.
On the contrary, I find that the Laws (Continuance in Force) Order makes it clear that, subject to certain limitations, Pakistan is to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force shall continue. These provisions clearly indicate that there is no intention to destroy the legal continuity of the country, as distinguished strictly from the Constitutional continuity.
Supreme Court’s Decision and Reasoning
The Honourable Supreme Court of Pakistan, led by Chief Justice Yaqub Ali, unanimously dismissed the petition filed by Begum Nusrat Bhutto. The Court upheld the constitutional validity of the martial law regime on the basis of the doctrine of necessity, thereby granting de facto recognition to the military takeover of 5th July 1977.
The Court held that:
Doctrine of Necessity Applied
Drawing upon the jurisprudence established in State v. Dosso and international legal theories such as Hans Kelsen’s theory of revolutionary legality, the Court concluded that a successful coup d’état, which displaces the existing constitutional order and is accepted by the organs of the State, results in the emergence of a new legal order. The continued functioning of the judiciary, administration, and other institutions under the new regime was considered as tacit acceptance of this altered legal framework.
Suspension, Not Abrogation, of Constitution
The Court emphasized that the Constitution of 1973 had not been abrogated but was held in abeyance, and the laws not inconsistent with the objectives of martial law continued to remain in force under the Laws (Continuance in Force) Order, 1977.
Judicial Review Available in Limited Scope
Although the Supreme Court asserted its power of judicial review under Article 184(3), it limited its scope in matters concerning the necessity and legitimacy of martial law. The Court considered the political situation prevailing at the time—marked by mass protests, alleged electoral fraud, and breakdown of law and order—as constituting extraordinary circumstances warranting military intervention.
Protection of Fundamental Rights Suspended Temporarily
The Court acknowledged that fundamental rights were suspended under the military regime, but accepted that such suspension was necessitated by the prevailing political crisis. However, it stressed that the detention orders would still be subject to scrutiny for arbitrariness or mala fide action.
Future Return to Constitutional Order Assumed
A key component of the Court’s reasoning was the assurance provided by the military regime that general elections would be held and democracy restored. The Court treated martial law as a temporary phase and expected an eventual return to constitutional rule.
Final Outcome
The petition was dismissed, and the Supreme Court effectively validated the military takeover of 1977, thereby providing legal cover to General Zia-ul-Haq’s regime. While the Court refrained from declaring the Constitution void or permanently displaced, it created a judicial precedent that allowed constitutional deviation under the pretext of necessity.
Legal Implications & Significance
The decision in Begum Nusrat Bhutto v. Chief of Army Staff had far-reaching consequences for constitutional law, civil-military relations, and the protection of fundamental rights in Pakistan. By invoking the doctrine of necessity, the Supreme Court not only validated the military takeover of July 1977 but also legitimized the suspension of the Constitution without abrogation.
This judgment marked a significant departure from the principles laid down in Asma Jilani’s Case, which had previously condemned military rule as unconstitutional. The Court’s endorsement of General Zia-ul-Haq’s regime allowed the military to entrench itself in the political domain, weakening the supremacy of the Constitution and undermining parliamentary democracy.
Furthermore, the judgment set a precedent for judicial acceptance of extra-constitutional interventions, thereby eroding constitutional safeguards. The suspension of fundamental rights under military rule, although recognized by the Court, was treated as a lawful necessity, diminishing the judiciary’s role as a guardian of civil liberties. Overall, the case remains controversial for prioritizing political stability over constitutionalism, and is often cited in legal discourse as a cautionary example of how judicial validation of military coups can compromise democratic governance and the rule of law.
Frequently Asked Questions (FAQs) about Begum Nusrat Bhutto v. Chief of Army Staff
What is the significance of Begum Nusrat Bhutto v. Chief of Army Staff?
This case is significant because it marked the Supreme Court’s judicial validation of General Zia-ul-Haq’s martial law using the doctrine of necessity. It played a key role in shaping the legal foundation for military interventions in Pakistan’s constitutional framework.
What legal doctrine was applied by the Supreme Court in this case?
The Supreme Court applied the doctrine of necessity and elements of Kelsen’s theory of revolutionary legality, holding that the military takeover had established a new legal order that must be accepted as valid.
Which constitutional rights were challenged in this case?
The petitioner challenged the violation of fundamental rights, including Article 9 (security of person), Article 10 (due process), Article 17 (freedom of association), and Article 25 (equality of citizens) of the Constitution of 1973.
What precedent was overruled or diluted by this decision?
The ruling effectively diluted the precedent set in Asma Jilani’s case (PLD 1972 SC 139), which had earlier declared martial law and extra-constitutional regimes as illegal and invalid.
What was the final outcome of the petition?
The Supreme Court dismissed the petition and upheld the detention of political leaders under the martial law regime, recognizing the military government as a de facto authority.
Last Updated: August 4, 2025