ABDUL HAMEED DOGAR, CJ. - By means Of this Constitution Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), the petitioners have called in question the validity of the provisions of Article 8-A of the Conduct of General Election Order, 2002 (Chief Executive's Order No. 7 of 2002) and clause (cc) of sub-section (1) of Section 99 of the Representation of the People Act, 1976, on the touchstone of Articles 17 and 25 of the Constitution.
The impugned provisions laid down that a person would not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he was at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974, or any other law for the time being in force.
2. During the course of proceedings, Dr. M. Aslam Khaki, ASC filed Civil Miscellaneous Application No. 996 of 2008 for his implead ment as a respondent/party to the above Constitution Petition on the ground that he would support the impugned provisions of law laying down the qualification of being a graduate to contest election to the Parliament and the Provincial Assemblies. He submitted that previously he had filed the Deena Madaras Certificates ' Equivalence case as pro bono public: Since the present Constitution Petition involved a question of general public importance and he being a public spirited person, he prayed that he may be allowed to address the Court. The leamed Attorney-General for Pakistan and Mr. Kamran Murtaza did not oppose the application. Therefore, Mr. Khaki was allowed to address the Court on the issues involved in the present Constitution Petition.
3. The case of the petitioners is that they are the citizens of Pakistan and by the promulgation of Article 8-A of. The Conduct of General Election Order, 2002 and clause (cc) of sub-section (1) of Section 99 of the Representation of the People Act, 1976 they have been deprived of their Fundamental right to contest election and to form government as interpreted by this Court in various judgments as a natural corollary of the right to form or be a member of a political party guaranteed under Article 17(2) of the Constitution. The learned counsel for the petitioners has made the following submissions:-
(1) The fundamental right enshrined in Article 17 of the Constitution is subject to "any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan or public order," but the condition of graduation qualification for contesting election does not fall within the ambit of the above controlling clause inasmu ch as the said qualification cannot be said to have been- imposed in the interest of the "sovereignty or integrity of Pakistan, public order or morality."
(2) By laying down the qualification in terms of education, an elitist class has been created. The acquisition of education is directly related to, and dependent upon the prevailing conditions in which a person may find himself. Thus, educational qualification for contesting election constitutes discrimination, which is prohibited under Article 25 of the Constitution and is, therefore, liable to be struck down.
(3) The impugned qualification is not a reasonable classification within the scope of Article 25 as interpreted in I.A. Sharwani s case (1991 SCMR1041).
(4) The condition of graduation was meant only for the General Election, 2002 and was not to apply to the future elections, which was apparent from the title of the statute itself, viz., "the Conduct of General Election Order, 2002" and was further fortified from the statement given below the title of the Chief Executive's Order No. 7 of 2002 to the effect that "An order to provide for the Conduct of General Elections 2002" and the recitals contained in Articles 3 and 4, e.g., "The provisions of this Order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force relating to the forthcoming elections to the Senate, National Assembly and the Provincial Assemblies" and ".........The Election Commission shall take such steps and measures, including preparation of electoral rolls and delimitation of the constituencies, and adopt such procedure, do such acts, pass such orders, issue such directions and take all such ancillary, incidental and consequential steps as may be deemed necessary for effectively carrying out the elections for the members of the Senate, National Assembly and Provincial Assemblies in October, 2002".
(5) The primary objective of the impugned legislation was to debar certain persons from contesting General Election of 2002. Ln this behalf, reference was made to the text of the original Conduct of General Election Order, 2002, which did not prescribe any educational qualification for contesting the election. The said Order was subsequently amended by insertion of Article 8-A, which provided that a person would not be eligible to contest election if he was not a graduate.
(6) The Chief Executive's Order No. 7 of 2002 has been included in the Sixth Schedule to the Constitution (Serial No. 32). Therefore, the National Assembly is precluded from making legislation on the subject without the previous sanction of the President.
No reason whatsoever was mentioned to include the impugned legislation in the Sixth Schedule and thus equal protection of law was not available to those who were not graduates.
The provisions of Article 8-A were earlier challenged before this Court in Constitution Petitions Nos.
29 to 33 of 2002, but the same were dismissed through the judgment in the case of Pakistan Muslim League (Q) v. Chief Executive of the Islamic Republic of Pakistan (PLD 2002 SC 994), hereinafter referred to as the PML (Q)'s case.
Ln the PML(Q)'s case, question of validity of the impugned provisions of the Chief Executive's Order No. 7 of 2002 was not examined on the touchstone of the Constitution and the Court dilated upon circumstances, which had little bearing on the controversy before it.
The judgment in the PML (Q)'s case was rendered without proper assistance. Even elementary data was not produced regarding the literacy rate of the country, the number of graduates in different provinces, particularly in the rural areas and far-flung areas like Chaghi in the Province of Baluchistan and other similar parts of the country where the vast majority of the population was not having even matriculation, middle or primary level -education. Therefore, the same was required to be revisited and overruled.
4. Dr. M. Aslam Khaki, . ASC submitted that the following issues needed to be dilated upon:-
(1) Whether the impugned law is an ordinary law or a law protected by the Constitution?
(2) Whether this Court has jurisdiction to examine/scrutinize the validity of the Constitutional provisions?
(3) Whether the instant petition is mala i.e to serve the purpose of one or few persons and not the public-at-large?
(4) Whether the petition is hit by the principle of res judicata and estoppel.
(5) Whether the impugned legislative measures are offensive to the provisions of the Constitution?
(6) Whether the requirement of graduation for contesting parliamentary elections is reasonable and in public interest?
(7) Whether different treatment of the citizens on their unequal circumstances is discrimination, or a distinction?
(8) Whether after the conceding statement of the Federal Government about the badness of the impugned law, will it not be appropriate to direct the petitioners to seek amendment of the law?
(9) Whether the petition is liable to be dismissed or at least amended for not impleading the necessary parties like the Ministry of Parliamentary Affairs, the President of Pakistan and members of the Parliament who would be adversely affected?
5. Raja Niaz Ahmad Rathore, learned Deputy Attorney-General appearing for the respondent Federation of Pakistan submitted that in the context of the present case this Court was to see as to whether the impugned legislation was not a reasonable restriction within the meaning of Article 17 of the Constitution. He contended that the impugned Article 8-A of the Chief Executive's Order No. 7 of 2002 was a bad law and ultra vires the Constitution and was required to be struck down by this Court.
6 Malik Muhammad Qayyum, learned Attorney- General for Pakistan appeared in the matter on Court's call. He presented his viewpoint as under:-
(i) There are two types of questions, one is political and the other is legal or Constitutional. Whether the Government will like to repeal the impugned legislation is a political decision, but whether the law is ultra vires, is to be decided by this Court.
(ii) The Supreme Court is not bound by its earlier rulings, lt has the power and jurisdiction to overrule its previous judgments, ln Per deep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 Supreme Court Cases 111),. The Supreme Court of India overruled its earlier judgment. If this Court comes to the conclusion that the judgment in PML (Q)'s case was erroneous, there is no reason to perpetuate a wrong or a mistake. The judgment in PML (Q)'s case does not take notice of the real issues involved therein, lt is mentioned in Para.22 of the judgment that necessary data has not been supplied. The Court did not go into the question of reasonableness or otherwise of the impugned law on the touchstone of the Constitution.
(iii). Right to contest election is a fundamental right and every body should be encouraged for the enforcement of the fundamental rights.
(iv) The- impugned educational qualification is partly a bad law. However, to say that a law is bad, motive is required to be attributed.
(iv) The requirement of graduation qualification in the matter of election is a negation of the democracy, lt is against the concept of political justice guaranteed in the Objectives Resolution and Preamble of the Constitution.
(vi) The Objectives Resolution, which is now a substantive part of the Constitution by means of Article 2A, inter alia, provides:- "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order; Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality."
(vii) A democracy is a government of the people, by the people and for the people. The requirement of educational qualification creates a separate class. Therefore, it cannot be said that such a government is a government of the people, ln modern laws the trend is that a preamble need not be there because the preamble states only the object or the intent of the legislature.
(viii) The impugned law creates an elitist democracy amounting to discrimination, which is forbidden under Article 25 of the Constitution. The Advanced Law Lexicon, The Encyclopaedic Law Dictionary, 3rd Edition, Volume 2 (2005) defines democracy as under:- "One of the three forms of government; that in which the sovereign power is neither lodged in one man, as in a monarchy, nor in the nobles, as in an oligarchy, but in the collective body of the people; government by the people; state in which such a government prevails; the principle that all citizens have equal political rights."
(ix) The impugned graduation qualification does not meet the test of reasonableness. The graduation qualification requires 14 years' studies. If a person studies for 13 years and is not a graduate, no weight age will be given to 13 years' learning, ln a democratic set up the emphasis is on social, economic and political justice, ln PML(Q)'s case, the Court did not consider the data relating to the literacy rate of the population or the question such as how many graduates were there in backward areas, such as Chaghi, etc.?
(x) The impugned law prescribes simple graduation qualification for contesting election and there is no particular requirement in what discipline the person should be a graduate. A science graduate, e.g. a person holding B.Sc, degree is eligible to participate in the election. Will such a person be competent to frajaie law? Graduation is 14 years' education in any discipline, though the main function of the members of the Parliament or the Provincial Assemblies is to legislate laws.
7. To begin with, we may deal with the objection raised by Mr. Khaki that the instant petition was hit by the principles of res judicata and estoppel. He submitted that the issue had already been decided in the PML (Q)'s case and the only course open to the petitioners was to i.e a review petition. Even otherwise, the present petition suffered from laches. The PML(Q)'s case was decided on 11.7.2002 whereas the election under the Chief Executive's Order No. 7 of 2002 was held in November, 2002. Ln the alternative, the petitioners could approach the Parliament for amendment of the law. Ln another formulation Mr. Khaki contended that the Chief Executive's Order No. 7 of 2002 was not an ordinary law, but had been protected under the Sixth Schedule to the Constitution, which could not be amended or repealed without prior sanction of the President. According to Mr. Khaki, the Mutahidda Mujlis-e-Amal (MMA) had agreed to pass the Constitution (Seventeenth Amendment) Act, 2003 on the condition that the retirement age of the Judges of the Superior Courts, as enhanced under the Legal Framework Order, 2002 was reduced and the original position in that regard was restored. He canvassed the view that the. The Seventeenth Constitutional Amendment, the Chief Executive's Order No. 7 of 2002 had become part of the Constitution and could only be amended in the manner provided for amendment of the Constitution. He submitted that the Parliament had the power to amend the. Constitution but this Court did not have such a power, as it was to interpret the Constitution. He contended that Article 270AA of the Constitution provided, inter alia, that all laws made between the 12th October, 1999 and the date on which other Articles came into force, i.e. 31st December, 2003 (both inclusive) were competently made and that under Article 268 of the Constitution all existing laws would continue in force until altered, repealed or amended by the appropriate legislature. For facility of reference, Article 270AA of the Constitution is reproduced below:- "270AA. Validation and affirmation of laws etc. -
(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive's Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Amendment)
Order, 2002 (Chief Executive's Order No. 29 of 2002), the Legal Framework (Second Amendment)
Order, 2002 (Chief Executive's Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article, comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers "as afore-said, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority: Explanation.- ln this clause, "competent authority" means -
(a) in respect of Presidents' Orders, Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported, exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby."
8. A bare perusal of Article 270AA shows that all the legislative measures including the Chief Executive's Order No. 7 of 2002 made by the Chief Executive of Pakistan were adopted, affirmed and declared by the Parliament as having been validly and competently made. There is no cavil with the proposition that under Article 268 of the Constitution all existing laws shall continue in force until altered, repealed or amended by the appropriate legislature or that the Parliament is not debarred from adding, other conditions/qualifications for being a candidate for membership of Parliament or, as the case may be, the Provincial Assemblies. Of course, at the time of its promulgation the Chief Executive's Order No. 7 of 2002 was an extra-Constitutional document, as the same was to have effect notwithstanding anything contained in the Constitution (e.g. Recitals in Articles 3, 4, 8, 8-A, etc.). However, this position was displaced on revival of the Constitution when it lost its supra-Constitutional character on account of its non incorporation in any of the provisions of the Constitution and its having been included in the Sixth Schedule to the Constitution. The learned Attorney General for Pakistan rightly pointed out that the impugned law was not one of those laws, which were included in the First Schedule of the Constitution and thus saved from the operation of fundamental rights. Article 8 of the Constitution reads as under:- "8. (1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."
(3) The provision of this Article shall not apply to:-.
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of .
Their duties or the maintenance of discipline among them; or
(b) any of the:-
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the C. Vs specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule; and no such law nor any pro vision thereof shall be void on the ground that such law or proviso inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commending day, the appropriate Legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by the Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period and exceeding six months.
Explanation.- If in respect of any law Majlis-e- Shoora (Parliament) is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution."
Accordingly, in the post Seventeenth Constitutional Amendment period, the Chief Executive's Order No. 7 of 2002 continued on the statute book as ordinary legislation with the difference that after its inclusion in the Sixth Schedule, further legislation on it could be made only after obtaining sanction of the President.
9. The argument of Mr. Khaki would have carried weight had the educational qualification been added in the list of qualifications for membership of Majlis-e-Shoora (Parliament) provided for in Article.62 of the Constitution. He frankly conceded that no such amendment had been made in the said Article. Needless to observe, the Chief Executive's Order No. 7 of 2002 was never made a part of the Constitution.
10. At this stage, we may deal with the contention of the learned counsel for the petitioners that it was clear from the various provisions of the Chief Executive's Order No. 7 of 2002 that the graduation qualification was intended for 2002 elections alone. No doubt under the law a qualification could be introduced at any time, but the timing of a particular statute would assume importance and relevance where the proposed law affected the fundamental rights of the citizens who, but for the operation of the said law, would be eligible to contest the election. This aspect of the matter was taken into consideration while deciding Javed Jabbar v. Federation of Pakistan (PLD 2003 SC 955), but not in the PML (Q)'s case.
11. Lt may be noted that Article 8 of the original Chief Executive's Order No. 7 of 2002 (PLD 2002 Central Statutes 193) only provided that the laws relating to election etc., for the time being in force, insofar as they were not inconsistent with any provision of the Chief Executive's Order No. 7 of 2002 shall apply and no such educational qualification was laid down therein for contesting election.
However, by the Conduct of General Elections (Amendment) Order, 2002, new Article 8-A was inserted into the Chief Executive's Order No. 7 of 2002. Article 8-A reads as under: - "8-A. Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI pf 1975). The Representation of People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force."
The Chief Executive's Order No. 7 of 2002 was promulgated on 27.2.2002 and Article 8-A was inserted therein on 25.6.2002 whereas a part of the Constitution was revived on 16.11.2002 and the rest on 31.12.2003. The judgment in PML(Q)'s case was rendered on 11.7.2002. Section 99(1 )(c) of the Representation of the People Act, 1976, was introduced on 30.7.2002. Thus, it was after the passing of the judgment in PML(Q)'s case that an amendment in the Representation of the People Act, 1976, was made and clause ( in sub-section (1) of Section 1 added by Ordinance XXXVI of 2002. For facility of reference, said clause (cc) is reproduced below:- "(cc) he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as. Equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force."
Having been incorporated in the Representation of the People Act, 1976, the said qualification became a part of the law as contemplated in Article 62(i) or Article 63(s) of the Constitution.
Therefore, even if. It be assumed that the Chief Executive's Order No. 7 of 2002 including the provisions of Article 8-A was meant for the General Election of 2002, the educational qualification continued in operation by virtue of clause (cc) in sub-section (1) of Section 99 ibid with the result that the provisions of Article 8-A of the Chief Executive's Order No. 7 of 2002, as observed earlier, were rendered bereft of their extra-Constitutional character after Election 2002, which were to be treated at par with other sub-Constitutional legislation and open to judicial review on the touchstone of the provisions of the Constitution.
12. Mr. Khaki contended that the Government in power had overwhelming majority in the Parliament' and was in a position to make amendment in the afore-said law. Ln response, the learned Counsel for the petitioners, as also the learned Deputy Attorney-General submitted that due to the inclusion of the impugned law in the Sixth Schedule to the Constitution and the requirement of previous sanction of the President for introducing any legislation in respect thereof, it was not possible for the Government to make any legislation on the subject since it was not sure that the President would accord the requisite sanction as an attempt to amend the law in the past had failed. We would not like to go into this or other similar questions and would confine ourselves to the examination of the legal and Constitutional issues arising in the matter. Even otherwise, the impugned graduation qualification for contesting election was subjected to scrutiny in PML(Q)'s case and it was nobody's case that the same was not open to challenge in the exercise of power of judicial review by this Court. Rather, in the said case, the case was examined from a different perspective, which was apparent from the narration of political process through which Pakistan had passed since its inception. Having recounted the major political developments/events, the Court summed up the discussion in Para-19 of the judgment in the following words:- "19. Lt was necessary to narrate this history briefly as its certain parts distinctly point to a political culture, which leaves much to be desired, lt demonstrated utter disregard for the parliamentary values and deliberate attempt to inure the soul of democracy. The establishment of a democratic order and the institutions therein requires utmost responsibility on the part of the elected representatives of the people but the record of most of the elected representatives of the four dissolved National and Provincial Assemblies speaks volumes about their psyche, lack of education and sense of responsibility, lt also shows that the political field was dominated by a coterie of individuals representing a special class of vested interests, which ensured that if not they, their kith and kin were elected as members of the Assemblies. Regardless of the ideal standards, their main effort was directed to have their hegemony to the political field. There are known cases where through manoeuvring and machination one faction deliberately went to the opposition and the other to the treasury benches."
13. Be that as it may, the main issue is whether the present petition is competent despite the matter having been decided by this Court in PML(Q)'s case. The leamed counsel for the petitioners submitted that the remedy of review was not available to the petitioners. The petition involved question of public importance with reference to enforcement of fundamental rights. There was a continuing cause of action inasmuch the petitioners and other non-graduate citizens were debarred from contesting election forever, and the principles of res judicata, estoppel or laches were not applicable in such matters. The learned Attorney-General for Pakistan submitted that the Supreme, Court was not bound by its earlier rulings and could overrule its previous judgments. He took us through a judgment of the Indian Supreme Court reported as Per deep Kumar Biswas v.
Indian Institute of Chemical Biology (20O2) 5 Supreme Court Cases 111). Ln the precedent case, the appellants filed a writ petition before the Calcutta High Court to challenge the termination of their service by the respondent which was a unit of the Council of Scientific and Industrial Research (for short "CSIR"). They also sought an interim order but that was refused by the High Court on the prima facie view that in view of the Supreme Court's decision in Sabhajit Tewary v. Union of India (AIR 1975 SC 1329 = (1975) 1 SCC 485), the writ petition itself was not maintainable. The appellants approached the Supreme Court of India. A two-Judge Bench of the Supreme Court, in view of subsequent decisions, held that Sabhajit Tewary's case required reconsideration. The matter was examined by the Constitution Bench, which overruled the judgment in Sabhajit Tewary's case in the, following terms:-- "Although the Court noted that it was the Government which was taking the "special care" nevertheless the writ petition was dismissed ostensibly because the Court factored into its decision two premises:-
(i) "The society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation, lt is a Society incorporated in accordance with the provisions of the Societies Registration Act" (SCC p. 486, Para 4), and
(ii) This Court has held in Praga Tools Corpn, v. C.A. Imanual Heavy Eng. Mazdoor Union v. State of Bihar and in S.L. Agarwal (Dr) v. G.M., Hindustan Steel Ltd. That the Prage Tools Corporation, Heavy ' Engineering Mazdoor Union and Hindustan Steel Ltd. Are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to government servants as contemplated in Article 311. The companies were held in these cases to have independent existence of the Government and by the law relating to corporations. These could not be held to be departments, of the Government." (SCC p. 487, Para 5).
With respect, we are of the view that both the premises were not really relevant and in fact contrary to the 'Voice and hands" approach in Sukhdev Singh. Besides reliance by the Court on decisions pertaining to Article 311 which is contained in Part XIV of the Constitution was inapposite. What was under consideration was Article 12 which by definition is limited to Part III and by virtue of Article 36 to Part IV of the Constitution", as said by another Constitution Bench later in this-context."
I ln the course of the judgment, the Supreme Court of India further observed as under:- "Normally, a precedent like Sabhajit Tewary which has stood for a length of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being "distinguished" out of all recognition by subsequent decisions and if the principles enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of this Court, some equally authoritative, ln our view Sabhajit Tewary fulfils both conditions."
14. We have carefully considered the contentions of Mr. Khaki, as also of the learned counsel for the petitioners and the view expressed by the learned Attorney General for Pakistan on the maintainability of the present petition in regard to the power and jurisdiction of this Court to revisit and overrule its earlier judgment. We may usefully make reference to the following cases:- Ataur Rahman v. State (PLD 1967 SC 23): The. Judgment points out the possibility of re-considering in a future proper case Court's view on a point of law expressed in earlier case and decision in earlier case remaining binding on Courts till such re-consideration.
Allah Ditta v. Muhammad AH (PLD 1972 SC 59): The Supreme Court of Pakistan held that"-, the decision in the case of Sharaf and another v. Pir Bakhsh and another (83 Punjab Record 1893) has held the field for the last 78 years and has been followed without dissent by the Courts in Punjab.
On the principle of stare decisis' also it is not desirable to change this view unless it is so unreasonable that it cannot be followed under any circumstances."
Temi P.A. v. PECO (1992 SCM R 2238): lt was held that this Court could depart from a previous rule or interpretation if it felt that circumstances had changed and that not to do so would lead to injustice. The development of the law should not be permitted to be stifled, lt should move with the time and articulate the changes coming in Muhammad Hanif v. Sultan (1994 SCM R 279): This Court observed that the Supreme Court being at the apex had a Constitutional duty to do complete justice, thus, it could not be inhibited by any restraint and had an abiding duty to attend to all aspects and to take an overall view of the case in dispensing justice.
Ln re: To Revisit "The State v. Zubair" (2002 SCMR 171): This Court took suo motu action in the matter under Article 184(3) of the Constitution in view of the difficulties arising out of the strict implementation of the ratio in Zubair s case wherein it was, inter alia, observed by this Court that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he was sitting and in case it was absolutely impossible to place the second or subsequent bail application before the same Judge who had dealt with the earlier bail application of the same accused or in the same case, the Chief Justice of the concerned High Court may direct it to be fixed for disposal before any other Bench/Judge of that Court, ln this case, while making certain clarifications/modifications in its earlier judgment in Zubair s case, this Court was influenced by the following factors:--- "the rule in Zubair {supra) is based on the salutary principles that justice must not only be done but also seen to be done, lt also promotes the Constitutional ideals that no one should abuse the process of the Court (Article 204) and the independence of the judiciary must be fully secured (Article 2A). These ideals cannot, however, be fully promoted unless the rule in Zubair (supra) is made to accommodate the equally important Constitutional ideals of expeditious and inexpensive justice (Article 37(d) I which though a Principle of Policy can be judicially enforced as it will be read into the non-dero gable Fundamental Rights guaranteeing the inviolability of the dignity of man (Article 14). Keeping bail applications pending for long periods of time by making a fetish of technicalities not only denies these Constitutional ideals but also impedes access to justice which is a Fundamental Right protected by Article 14."
15. From the above survey of the case-law it is clear that the Supreme Court in an appropriate case may revisit its earlier decision, clarify, modify or even overrule the same if the circumstances of the case so warrant. .16. The learned counsel for the petitioners contended that the impugned educational qualification constituted infringement of fundamental right of the citizens, but it was taken very lightly in the PML(Q)'s case. He submitted that the Court in the said case recapitulated the events of the Pakistan's recent political history in great detail but paid a little attention to the question of enforcement of the fundamental rights. He contended that the Court sufficed by making the following discussion on the issue:- "Article 17 clearly allows a citizen to have the right to. Form associations or unions subject to any reasonable restrictions imposed by law. Similarly, every citizen not being in the service of Pakistan, has the right to form or be a member of political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan, ln this context, we are reminded of the following observations made by this Court in Mian Muhammad Nawaz Sharifs case at page 558 while interpreting Article 17 of the Constitution:- "This approach was again in evidence in the Symbol's case (PLD 1989 SC 66) wherein it was observed that the 'Fundamental Right' conferred by Article 17(2) of the Constitution whereby every citizen has been given 'the right' to form or to be a member of a political party . Comprises the right to participate in and contest and election."
The learned counsel submitted that having noted the above interpretation of Article 17, the Court held as under:- "There is no cavil with the proposition laid down by this Court that every citizen has a right to contest election but the principle enunciated therein does not confer an unbridled right on every citizen to contest an election. The right to contest an election is subject to the provisions of the Constitution and the law and - only those citizens are eligible to contest election who possess the qualifications contained in Article 62 and the law including the law made under Article 62(i) and do not suffer from disqualifications laid down in Article 63 of the Constitution and the law."
17. The learned counsel for the petitioners submitted that soon after the decision of PML(Q)'s case, Article 17 again fell for consideration in Javed Jabbar's case where the Court returned a different finding on somewhat similar issues, lt may be recalled that by amending the Chief Executive's Order No. 7 of 2002, Article 8-AA was added providing therein that a person who had unsuccessfully contested election to the National or a Provincial Assembly was not eligible to contest the Senate election. For facility of reference, Article 8-AA of the Chief Executive's Order No. 7 of 2002 is reproduced below:- "8-AA. Disqualification from being a member of the Senate. - Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for Election to the National Assembly or a Provincial Assembly at the elections held under this Order he has not been elected to such Assembly."
The above disqualification for the Senate election was challenged before this Court in Constitution Petitions No. 38 of 2002 etc. In the case of Javed Jabbar (supra) and the Court held the disqualification attributable to defeat in consequence of lawful act of contesting election of the National or a Provincial Assembly as discriminatory in nature and violative of Article 25 of the Constitution. At Para 22 of the judgment, the Court held as under:- "22. Adverting to the second common contention we find that Article 8-AA of the Order not only offends the provisions of Article 25 of the Constitution, which guarantees that all citizens are equal before law, but is also unjust as its promulgation after completion of the process of general elections has left the petitioners high and dry. Participation in an election is a positive act, which advances the- cause of democracy and flows from the fundamental right of a person to contest an election which is enshrined in the Constitution and acknowledged in the Statutes on the subject, lt is indeed unfair to sideline a candidate defeated in the general elections through a belatedly prescribed disqualification which is discriminatory in nature, militates against the spirit of democracy and tends to frustrate the process of Senate election. The amending Order was promulgated after completion of the process of general elections and those who intended to contest elections to the National Assembly and the Provincial Assemblies were not aware that in the event of defeat they would be disqualified to participate in the Senate election. We are convinced that had the disqualification in question been incorporated in the Order at the outset the candidates desirous of contesting the Senate election would not have contested election to the National Assembly and the Provincial Assemblies and thus could have opted for a different course of action. The timing of the impugned legislation is crucial in the facts and circumstances of the present case and is fatal to the case of the Federation. Resultantly, the impugned legislation, although competently enacted and immune from challenge on the ground of mala fides, cannot be allowed to remain on the Statute book being violative of the provisions of Article 25 of the Constitution and having been introduced belatedly." lt may also be advantageous to refer to Para. 16 of the judgment which reads as follows:- "16. Ln view of the above interpretation of the expression "public importance", the status and importance of the Senate which is an integral part of Majlis-e-Shoora (Parliament) and consists of the chosen representatives of the people, mode of election of members of the Senate, prerogative of the political parties to award tickets to persons of their choice and solicited scrutiny of the amending Order there is no' difficulty in "holding that the petitions involve a question of public importance within the contemplation of Article 184(3) of the Constitution. As regards infringement and enforcement of a fundamental right of the petitioners, suffice it to say that right to contest an election is not only a statutory but also a fundamental right conferred by Chapter 1 of Part II of the Constitution. Every citizen who fulfils the conditions laid down under Articles 62 and 63 of the Constitution and the related law is eligible to contest an election and to participate in the ensuing formation of Government either in his individual capacity or as a member of a political party. Such right is guaranteed under Article 17(2) of the Constitution and has been recognized as such in Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) and Pakistan Muslim League
(Q) v. Chief Executive of Islamic Republic of Pakistan (PLD 2002 SC 994). The observations made in the case of Pakistan Muslim League (Q) read as under:- "24. Lt was next urged before us that the Election Order is ultra vires Articles 17 and 25 of the Constitution. We will first reproduce Article 17 of the Constitution, which reads as under:- "17. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or, integrity .Of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be ..
Final.
(3) Every political. Party shall account for the source of its funds in accordance with law."
Article 17 clearly allows a citizen to have the right to form associations or unions subject to any reasonable restrictions imposed by law. Similarly, every citizen not being in the service of Pakistan, has the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan, ln this context, we are reminded of the following observations made by this Court in Mian Muhammad Nawaz Sharif's case at page 558 while interpreting - Article 17 of the Constitution:- "This approach was again in evidence in the Symbol's case PLD 1989 SC 66 wherein it was observed that the 'Fundamental Right' conferred by 'Article 17(2) of the Constitution whereby every citizen has been given 'the right' to form or to be a member of a political party comprises the right to in and contest an election."
There is no cavil with the proposition laid down by this Court that every citizen has a right to contest election but the principle enunciated therein does not confer an unbridled right on every citizen to contest an election. The right to contest an election is subject to the provisions of the Constitution and the law and only those 'citizens are eligible to contest election who possess the qualifications contained in Article 62 and the law including the law made under Article 62(i) and do not suffer from disqualifications laid down in Article 63 of the Constitution and the law."
18. The learned counsel further submitted that in PML(Q)'s case, on the question of reasonable classification permissible under Article 25, the Court noted the principles stated in I.A. Sharwani s case and summed up the discussion with the following remarks:- "We need not refer to the plethora of case-law. On the subject because the above principles summarize the entire case-law. Judging the Election Order in the light of the above principles, we are of the view that the education related qualification is reasonable and not arbitrary or whimsical because firstly, being a step towards transformation of the political culture it is founded on reasonable basis and secondly, it equally applies to all the graduates and does not discriminate any graduate or create a class within the graduates."
Thus, the learned counsel for the petitioners contended that not only there was divergence in the approach of the Court towards the two cases involving similar issues, it also did not advert to the fundamental question requiring determination whether the impugned educational qualification was reasonable on the. Touchstone of Articles 17(2) and 25 of the Constitution. He submitted that in PML(Q)'s case the, Court held the graduation qualification as reasonable, because of its equal application to all the graduates and there being no further classification of the graduates. But, in Javed Jabbar's case, the Court held that the impugned legislation, although competently enacted and immune from challenge on the ground of mala fides, could not be allowed to remain on the statute book being violative of the provisions of Article 25 of the Constitution, lt could well be said that the disqualification applied to all' those persons who had lost election of the National or a Provincial Assembly and no class was created within them.
19. The learned Attorney General for Pakistan made reference to the case of Faruq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) to contend that all efforts were to be made to preserve and to enlarge the scope of fundamental rights while interpreting the Constitutional provisions.
20. The question of infringement of fundamental rights has engaged the attention of the Superior Courts, which have always dealt with these matters in all earnestness, ln the case of F.B. Ali v. State (PLD 1975 SC 506) this Court elucidated the equal protection clause as under:- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated' in the same manner. The phrase 'equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by. Other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness, This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial > difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g., minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly,., compensation for properties acquired maybe paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situation come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity or preventing certain antisocial effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency.
Where, however, the law itself makes no classification but leaves the selection to an outside agency or an administrative body without laying down any guidelines, thus enabling the body or authority to pick and choose, a legitimate complaint may be made on. The ground that the law itself permits discriminatory application. Such was the position which came under consideration by this Court in the case of Naris mean v. The State (1) (PLD 1957 SC (Pak.) 157) where this Court struck down the law on the ground that it was violative of this particular right. On the other hand, in the case of Jibendra Kishore Achharya v. Province of East Pakistan (2) (PLD 1957 SC (Pak.) 9), a law which provided for payment of compensation on a sliding scale to proprietors, which decreased in proportion to the income of the estate acquired. The larger the income the lesser the scale of compensation. Nevertheless, this Court held the differentiation to be based upon a valid classification.
The concept of the 'equal protection of law', which is derived from the American Constitution is not susceptible of any exact definition, "ln other words", as stated by the editors of American Jurisprudence, Vol. 12, page 409, "no rule as to protection of- laws that will cover every case can be formulated and no test of the type of cases involving such a clause of the Constitution can be infallible or all- inclusive: Moreover, it would be impracticable and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises." Be, that as it may, the only generalization that is possible is that it means "subjection to equal laws applying to all in the same circumstances" but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable and is based upon substantial differences having a relation to the objects or persons dealt with and to the public purpose sought to be achieved, lt guarantees equality and not identity of rights.
The principle is well-recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class, ln fact almost all .Legislation involves some , kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, it prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."
Reference may also be made to the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), where Chief Justice Dr. Nasim Hasan Shah held as under:- Fundamental Rights in essence are restraints on the arbitrary. Exe'rcise of power by the State in relation to any activity that an individual can engage. Although Constitutional guarantees are often couched in .Permissive terminology, in essence they impose limitations on the power of the State to restrict such activities. Moreover, Basic or Fundamental Rights of individuals which presently stand formally incorporated in the modern Constitutional documents derive their lineage from an are traceable to the ancient Natural Law. With the passage of time and the evolution of civil society great changes occur in v the political, social and economic condition of society. There is, therefore, the corresponding need to re- evaluate the essence and soul of the Fundamental Rights as originally provided in the Constitution. They require to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future. Indeed, this progressive approach has been adopted by the Court in the United States and the reason given for doing so is that:- "While the language of the Constitution does not change, the changing circumstances of a t progressive society for which it was designed yield a new and fuller import to its meaning: (Hurtade v. California - 110 US 516)."
At Para 17 of the above judgment, Amal Mian, J., as he then ^ was, (later Chief Justice) observed as under:- "I may also observe that there is a marked distinction between interpreting a Constitutional provision containing a Fundamental Right and a provision of an ordinary statute. A Constitutional provision containing Fundamental right is a permanent provision intended J to cater for all time to come and, therefore, while interpreting such a provision the approach of the ] Court should be dynamic, progressive and liberal keeping in view ideals of the people, sociol-economic and politico-cultural values (which in Pakistan are enshrined in the Objectives Resolution) so as to extend the benefit of the same to the maximum possible. This is also called judicial activism or judicial creativity, ln other words, the role of the Courts is to expand the scope of such a provision and not to extenuate the same." '
21. Ln the same context, our attention was also invited , to Government of Baluchistan v. Azizullah Memon (PLD 1993 SC 341). Ln that case, the learned Advocate General had contended that the special requirement of the area, namely, Baluchistan was that it had a tribal society where usage and custom were deep-rooted and they required to be dealt with differently from other areas of Pakistan, the Court did not agree with the reasoning put forward by the learned Advocate-General and held that the said criterion would be available to the Government for making such laws in pre- independence period when, the British were ruling the area as a colony and had their own policy to dominate and subjugate the citizens. But after independence of the country entire scenario had changed. The Court took into consideration the object of the Criminal. Law (Special Provisions)
Ordinance, 1968, which was to provide a system different from the established procedure for trial of certain offences in certain areas of West Pakistan specified in the Schedule to meet the special Requirements of those areas. The Court held that the people who had fought for independence would clamour for a just and proper order according to general law of the land, the Constitution and Injunctions of Islam. The Court repelled the contention of the learned Advocate-General that the Ordinance was made applicable to the entire Province of Baluchistan and there was no race or class discrimination. As such, the Ordinance was declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution. The Court held as under:--- "As the judgments from Indian jurisdiction have been considered in the afore-stated judgments of this Court, we would not refer to them here, ln all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes person or things that are grouped together from others who are left out of. The group and such classification and differentia must be on relational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolizes that persons or things similarly situated cannot - be distinguished or discriminated white making or applying the law. Lt has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative or Articles 8 . And 25,"
22, Having gone through the case-law cited at the bar including judgments in PML (Q) and Javed Jabbar's cases, we find force in the submissions of the learned counsel for the petitioners and the learned Attorney-General for Pakistan. Needless to observe that the questions of Jaw of public importance with reference to enforcement of fundamental rights have to be properly dealt with.
We are satisfied that a case for revisiting the judgment of this Court in PML (Q)'s case is made out.
23. The learned counsel for the petitioners contended that in view of the ratio laid down in the cases of Benazir Bhutto and Muhammad Nawaz Sharif (supra), the right to form or be a member of a political party enshrined in Article 17(2) of the Constitution included the right to form government and to contest election. According to him, Article 17(2) had two parts: one granted the right to a citizen to form or be a member of a political party, and the other placed a restriction on the right, in that, such a person was not in the service of Pakistan. On the contrary, Mr. Khaki drew support from the judgment in PML (Q)'s case and canvassed the proposition that tp contest election, no doubt, was a fundamental right but this right was a qualified one. According to him, the fundamental right to participate in ejection was also subject to certain restrictions imposed by law as provided in Article 17 of the Constitution. He further submitted that if the impugned legislation was struck down, it would call for a fresh election of the Parliament and the Provincial Assemblies. Therefore, at least the petition ought to be amended by impleading the President and Members of the Parliament as parties to it.
24. Ln the case reported as Muhammad Yousuf v. State (2002 CLC 1130) the Supreme Court of Azad Jammu and Kashmir took the view that only such persons could enter a legislative body who were either matriculate or had equivalent qualification and the same would not be violative of Fundamental Right No. 7 of the Azad Jammu & Kashmir Interim Constitution, 1974 (Act No. VIII of 1974) (corresponding of Article 17 of our Constitution). At paragraphs 18, 19 and 21 of the judgment, the Court held as under:- "(18) from the perusal of Fundamental Right No. 7 it would appear that every State Subject has been given right to form an association of his choice. Such association would continue unless its activities are curtailed through reasonable restriction imposed by law in the interest of morality and public order. The argument that right to form an association automatically confers a right to contest elections for Legislative Assembly cannot be accepted, ln case titled Chief Secretary Referring Authority, Azad Jammu and Kashmir Government ' v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95, the learned -Chief Justice of the time in his separate. Note opined in Para. 65 at page 129 as. Under:- But on the other hand if the Ordinance provides disqualification which is a mere domestic wall to bar entry in the elective body it would not come within the mischief of fundamental rights."
(19) . Through the present Ordinance only the entry of such persons in the legislative body has been made possible who are either matriculate or have .Equivalent qualification. Such restriction in the light of the above- referred observations would not come within the mischief of fundamental Right No. 7.
(21) As we all know the right to participate in election has been made available to the State Subjects by a statute and not under any Fundamental Right conferred by the Constitution Act. The Constitution has authorized the Legislature to enact the law relating to the elections of the Legislative Assembly. The legislative powers can be exercised, either by the Assembly or under Section 41 of the Constitution Act by the President. The Ordinance promulgated by the President has the same force and effect as an Act of the Assembly. The President in the present case has competently promulgated the under- challenge Ordinance, therefore, it cannot be said that it lacks legal competence. Therefore, in the light of the above discussion, the arguments of the learned counsel for the appellant is misconceived that the impugned legislation is opposed to Fundamental Right No. 7." -25. The learned Attorney-General for Pakistan submitted that the impugned educational qualification was against the concept of political justice enshrined in the Objectives Resolution which, by virtue of Article 2A, was now" a substantive part of the. Constitution. The provisions of Article 17(2) and the term "political justice" have received judicial interpretation of this Court on more than one occasion, ln the case reported as Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), at pages 615- 616 of the report, Zaffar Hussain Mirza, J., in his separate judgment expressed his view as under- "lt may at this stage be stated that Article 17(2). Declares that every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. This Article is included in Chapter I of Part II of the Constitution which is entitled "Fundamental Rights." Article 8(2) contains a mandate to the state not to make any law, which takes away or abridges the rights so conferred.
The sacrosanct character and the sacredness of these rights is to be viewed in this context, ln delegating Respective powers to each of the three branches of government, the legislature, the executive and the judiciary, the^ people of Pakistan preserved for themselves certain fundamental rights, which were kept beyond the reach of the delegated authority vested in the said branches of the Government, to destroy or curtail. The Objectives Resolution, which has become a substantive part of the Constitution, is a historical document and represents the aspirations of the people of Pakistan, laying down the broad principles on which the Constitution was to be framed. Lt has stood the test of time and is generally accepted to represent the national ethos of the people of this country. A careful examination of this" document will reveal the theory of delegation as its basic foundation. The following clause deals with fundamental rights:-.
"Wherein shall be guaranteed fundamental rights including quality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;"
The expression "political justice" is very significant and it has been placed in the category of fundamental rights. Political parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly our constitution is a Federal constitution based on the model of Parliamentary form of representative government prevalent in United Kingdom, lt is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties,' is an essential adjunct of a functional democratic system of Government."
Muhammad Afzal Zullah, J., as .He. Then was (later Chief Justice) at pages 541-42 of the report held as under:- "Article 17(2) of the Constitution provides a basic guarantee to the citizen against-usurpation of his will to freely participate in the affairs and governing of Pakistan through political activity relating.
Thereto, ln addition, it also seeks to protect Pakistan against the misuse of this right, lt is significant to note that instead of the word "State", "Federation", or. "Republic" which could easily be used in Article 17, the concept (and/or movement) itself, of Pakistan has been projected in the selection of the word "Pakistan" for use in this Article, lt is no rhetoric. Article 1 of the Constitution mentions Pakistan in this very context -as a ' Federation and a Republic only of one type; namely, Islamic. If it is so, there can be no escape from the accountability indicated in Article 17(2) and (3), amongst others, in the Islamic sense also - whether of the citizen or the political parties or the Government in the context of the political activity and the protection of the right to exercise it.. That is why Article 17(2) besides the exposition of this "Right" makes provision for the accountability, lt is not surprising that this second part speaks of what the Federal Government could do against a political party in the foregoing context. But what prima facie appears anomalous is that in the practical politics-the Government would not ordinarily move against a party which has formed the Government."
The learned Judge has employed a forceful expression to highlight the importance of free participation of the people in the affairs and governance of the country through political activity by exercise of fundamental right enshrined in Article 17(2) of the Constitution. Subsequently, in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 Supreme Court 473) this Court reiterated its view bn Article 17(2) in Benazir Bhutto}s case {supra) as under:- - "Actually, the objection being raised by the leaned counsel for the respondents before us he- stands practically answered already in Benazir 'Zi-.Utto's case (PLD 1988 SC 416). Lt was herein, inter alia, also observed:- "Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as political party...... ............. Again, the forming of a political party necessarily implies . The right of carrying on of all its activities as otherwise the formation itself would be of no consequence, ln other words, the functioning is implicit in the formation of the party."
Thus, in the scheme of our Constitution, the guarantee "to form a political party" must be deemed to comprise also the right by that political party to form the Government, wherever the said political party possesses the requisite majority in the Assembly. As was explained by Chief Justice Muhammad Haleem in the same judgment:- "Our Constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority ........
Lt is a party system that converts the-results of a Parliamentary election into a Government."
Accordingly, the basic right "to form or be a member of a political party" conferred by Article 17(2) comprises the right of that political party not only to form a political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the Government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of the political party which the electorate has mandated it to carry into effect. Any unlawful order which results in frustrating this activity, by removing it From office before the completion of its normal tenure would, therefore, constitute an infringement of this Fundamental Right.
Ln this connection, the interpretation of the word "operating", in Article 17(2) given by my learned brother Shafiur Rahman, J. Further clarifies this aspect of the matter. He has rightly pointed out that the term "operating" includes both healthy and unhealthy operation of a political party. While Article 17 contains limitation and checks against unhealthy operation of the political party; no provision exists therein in relation to its healthy operation. However, the mere omission- to make any specific provision in regard to this aspect does not imply that Fundamental Right 17 does not also comprise this aspect of the matter. Indeed, a positive right implies, as part of the same right, a negative right and vice a verse (see the views of Jackson, J. For the majority and Murphy, J.
Concurring in West Virginia State Board of Education v. Baranette (1942) 319 U.S, 624. Hence, if the lawful functioning of a Government of political party is frustrated (by its dismissal) by an unlawful order, such an order is an impediment in the healthy functioning of the political party and would, therefore, constitute an infringement of the fundamental right conferred by Article 17(2). A petition under. Article 184(3) for its enforcement would, accordingly, be maintainable.
Ln this view of the matter, the submission of the learned Attorney-General that rights guaranteed under Article 17(2) extend only to the right to form a political party and the right to become a member of a political party or for that matter the submission of Mr S.M. Zafar that the right guaranteed under A^e 17(2) extends only to all the political assesses culminating. In the election of its member to the National Assembly and no more cannot therefore be accepted. The preliminary objection, accordingly, fails and is rejected.
Ln Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), Nasim Hasan Shah, J., as he then was (later Chief Justice), in his note of concurrence held as under:- "I agree with my learned brother Shafiur Rahman, J. And may perhaps usefully add that "the right to form or be a member of a political party" guaranteed under Article 17(2) of the Constitution includes the right to contest and participate in the elections."
Thus, according to the exposition of law made in the above cases, the right to form or. Be a member of political party conferred by Article 17(2) included the right to contest election and form government by a political party commanding confidence of majority of the members of National Assembly, or a Provincial Assembly, as the case may be.
26. The learned counsel for the petitioners stated that the impugned educational qualification was neither part of the Constitution nor did it fulfil the criteria laid down in Article 62(i) or Article 63(s) of the Constitution. The law providing qualification/disqualification has to be enacted by the Majlis-e- Shoora (Parliament). Therefore, the Chief Executive's Order No. 7 of 2002 was invalid having not been competently legislated by the Parliament. On the other hand, Mr. Khaki, the intervener, submitted that Article 62 of the Constitution provided qualifications for membership of the Majlis- e-Shoora. Under clause (i) of the said Article, it is provided that a person is not qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora. Thus, the impugned qualification falls within the purview of Article'62(i) of the Constitution. We have deliberated on this aspect of the matter. We find that the objection of the learned counsel for the petitioners that the impugned educational qualification was not competently legislated is not tenable, inasmuch as it was also added by means of clause (cc) of sub-section (1) of Section 99 of the Representation of the People Act, 1976.
27. The learned counsel for the petitioners vehemently contended that the qualifications laid down in Article 62 of the Constitution were not subject to acquisition, i.e., they could not be acquired by human effort and were in the nature or category of inborn or inherent traits. Therefore, the impugned graduation qualification was not valid, lt was contended that the impugned qualification was also against the Injunctions of Islam under which the only test was "Taqwa".
Moreover, .The wisdom or knowledge was not always subject to any degree from any institution.
Wise but uneducated people abounded everywhere. The Holy Prophet Muhammad (SAW) was an "Ummf' (a person who did not know how to read or write). On the other hand, Mr. Khaki contended that there were two characteristics: one, which could not be changed by human effort, e.g., race, colour, complexion etc., the other, which could be changed by human effort, e.g., poverty, literacy, etc. According to him, education was a trait which could be acquired, hence the same was a valid qualification. He submitted that the Prophet Muhammad (SAW) in the Last Sermon* (Khutba Hijat- ul-wida) specifically prohibited discrimination on the basis of colour, region, etc., which could not be changed by human effort. He submitted that the discrimination on the basis of education was in line with the Declaration of Allah (SWT) contained in verse of the Holy Quran which says:- "Are those equal, those who know and those who do not know? Lt is those who are endued with understanding that receive admonition." [Surah Al- Zumar (39 : 9)]"
He also submitted that in the Islamic dispensation a Bedouin would not be a member of the Majlis- e-Shoora. He further submitted that in Shariah, Al-Hukam i.e. Law was framed for general application, ln the sphere of modern law, interpretation of the Constitution was entrusted to highly qualified persons. He stated that casting of a vote was a right, but becoming a member was a duty. He further submitted that different criteria in respect of age etc., for voters and for members of National -Assembly and a Provincial* Assembly were laid down - for voters the minimum age was 18 years whereas for members of the National Assembly or a Provincial Assembly it was 25 years. Lastly, he submitted that the graduation qualification was the need of the hour, inasmuch as on account of low literacy rate it was a step to encourage people to acquire higher educational qualifications.
28. At this stage, it may be advantageous to refer to the provisions of Article 62, which reads as under:- "62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:-
(a) he is a citizen of Pakistan;
(b) he is, in the case of National Assembly, not less than twenty-i.e years of age and is enrolled as a voter in any electoral roll in:-
(i) any part of Pakistan, for election to ,a general seat or a seat reserved for non-Muslims;
(ii) and any area in a Provine from which he seeks membership' for election to a seat reserved for women.
(c) he is, in the case of Senate, not less that thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;
(d) he is a good character and is not commonly known as .One who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teaching and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteous and non profligate and honest and amen;
(g) he has not been convicted for a crime involving moral turpitude or for giving false^evidence;
(h) ' he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of . Pakistan: .
Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non- Muslim, but such a person shall have good moral reputation; AND
(i) he possesses such other qualification as . May be prescribed by Act of Majlis-e- Shoora (Parliament)."
29. A perusal of Article 62 shows that there are two. Types of qualifications, viz. The qualifications mentioned in the Constitution itself and the qualifications to be prescribed by law made under the said Article, lt has already been held in some judgments, as for example the PML(Q)'s case or Muhammad Yousuf ease {supra) that a citizen has a right to contest election, but the said proposition does not envisage an unbridled right because the same is subject to the provisions of the Constitution and the law. Only those citizens are eligible to contest election who possess the _ qualifications contained in Article 62 and the law made thereunder and do not suffer from disqualifications laid down by or under Article 63 of the Constitution. While there is no cavil to the above proposition, it is equally true, as rightly contended by the learned counsel for the petitioners and the learned Attorney-General for Pakistan that the qualifications or disqualifications added by law made by the Parliament within the contemplation of the afore-said Articles 17 and 25 of the Constitution to examine whether the same were reasonable or otherwise.
30. We have considered the submissions made by the learned counsel for the petitioners, the intervener and the learned Attorney-General for Pakistan. Indeed, formal education is something, which can be acquired and is not an inborn quality. The qualifications mentioned in Article 62 with one or two exceptions are such as are not subject to. Acquisition with much human effort, e.g. Citizenship, age, etc. Virtues such as wisdom, knowledge or understanding belong to the same category and are not much dependent on formal education, which only serves to ignite or polish those qualities. This aspect was considered by the High Court of Azad Jammu & Kashmir in a similar context in the case of Muhammad Yousuf v. Azad Government (PLD 2001 Azad J&K 60). Lt was held as under:- "I cannot disagree with the argument of Mr. Akram Sheikh that the knowledge and wisdom is not subject to the certificates and degrees; it is a God-gifted virtue and there are numerous examples in the world and around us that even illiterate or semi-illiterate people have sea deep level of knowledge on account of their experience, inborn talent, deep non-academic studies etc., and in some cases informally educated or non- educated people have proved better than formally or well-educated persons, but these are exceptions. Similarly, there are people who are degree- holders and highly educated but proved failure and in some cases are parasites but those are also exceptions. Non-educated but knowledgeable people can guide, educate, train and transmit their wisdom and experience to the educated young generations who have to take over from them, and overtaking is a natural process for which one should be voluntarily prepared and accept the hard facts of the life. Service for the nation can be rendered even without being a member of the Assembly."
We would observe that that of course wisdom and knowledge are God-gifted, inborn and inherent virtues and may not always be dependent on acquiring certificates or degrees. We would add that such persons abound in the society, lt would not be fair to deprive the society of their service.
Performance of any individual, or any class, literate or illiterate whether he or they did well or bad cannot be made a yardstick particularly with regard to a public representative office. The framers of the Constitution have already taken care of education related qualification, inasmuch as Clauses (e) and (f) of Article 62 provide that a candidate for election shall be a person who has adequate knowledge of Islamic teaching and practices obligatory duties prescribed by Islam, who abstains from major sins and is sagacious, righteous, non-profligate, honest and ameen. These provisions amply cover all the aspects agitated by Mr. Khaki. Does a person with adequate knowledge of Islamic teaching and who practices obligatory duties prescribed by Islam as well as abstains from major sins and is also sagacious, righteous, non-profligate, honest and ameen need any formal education to be able to contest election? The answer is a big no. Men of these qualities will fulfil the demands of their mandate and deliver the goods. The need is to ensure that the public representative offices are manned by persons possessing such attributes. Presence of such persons in public offices will rid the society of the evils it is afflicted with.
31. Lt was vehemently contended by the learned counsel for the petitioners that this Court while upholding the educational qualification in PML (Q)'s case was influenced by the functioning of four National Assemblies (1988-99). Now the performance of the fifth Assembly, which was a graduate Assembly, was before this Court. Though the said Assembly was expected 'to come up with better performance, both quantity-wise and quality-wise, but the relevant legislation data spoke otherwise. The rate of legislation was lower than that of the afore-said four Assemblies, inasmuch as only 50 bills were passed by it during its i.e years tenure, ln contrast, during 1997-99, 74 bills were passed by the then Assembly. On this score too the impugned graduation qualification had no relevance. Hence, a case for revisiting and overruling the judgment in PML(Q)'s case was made out.
Lt was. Also contended that the policies formulated by this Assembly led to unprecedented crises.
On the other hand, Mr. Khaki stated that the reason for comparatively less legislation by the last Assembly was that the educated members would discuss and deliberate upon the issues while the uneducated members would just pass the bill without any discussion or deliberation. As observed elsewhere in the course of this judgment, the performance of any individual or any group of individuals or any class is not the touchstone for determining the validity of any legislative action.
The Court has to decide the controversy on legal and Constitutional grounds.
32. The learned counsel for the petitioners next contended that the impugned law was bad and the tenor of the law clearly indicated that the same had been introduced To oust certain politicians from the arena of politics. He submitted that experienced Parliamentarians, i.e. The persons who were Ministers many a time in the past, such as Ghulam Mustafa Jatoi, Abida Hussain and Gohar Ayub, a former Speaker and several others were deprived from exercising their right to contest election for want of graduation qualification. Mr. Khaki argued that during the times of the Holy Prophet (Peace be upon him) only competent people were sent to the 'Majlis-e-Shoora, ln response, the leamed Deputy Attorney-General submitted that Mr. Khaki had conceded the case of the petitioners who wanted nothing else but allowing experienced and competent people to contest election regardless of their educational qualifications. However, the learned Attorney General for Pakistan stated that a law could not be declared null and void on the ground of its being bad. Often laws made by previous governments were termed as bad by the successor governments. The examples may be found in various Ehtisab laws made by the successive governments. Be that^as it may, we would not like to go into this question as the case has to be decided with reference to the enforcement of fundamental rights.
33. Now this brings us to the last and final question requiring determination, i.e., whether the impugned graduation qualification is reasonable on the touchstone of. The provisions of Articles 17 and 25 of the Constitution? Lt was vehemently contended by the learned counsel for the petitioners that under Article 17(2), the State was authorized to impose reasonable restrictions in the interest of the sovereignty or integrity of Pakistan or public order, but the possession of graduation qualification for being a candidate for an election had no nexus with 'sovereignty', 'integrity of Pakistan', or 'public order'. The learned Attorney General for Pakistan stated that restriction imposed on the right to contest election in the form of graduation qualification was neither reasonable nor the same was based upon any rational classification envisaged in I.A. Sharwani s case (supra), inasmuch as there was neither any intelligible differentia nor the differentia on the basis of educational classification had any rational nexus to the object sought to be achieved by such qualification. Mr. Khaki submitted that the word 'discrimination' was defined as 'unequal treatment of equal persons', which was not the case here as all nongraduates 'were treated alike. As to the alleged discrimination on the basis of qualification, he submitted that if the petition was accepted, it would cause discrimination to the people who could not participate in general election on account of being non-graduate and only few persons contesting by-election would be benefited by this decision.
34. The learned counsel also contended that under Article 37 of the Constitution, the State was obliged, inter alia, to promote with special care the education and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. To achieve these objectives no.' time limit was fixed whereas the condition of being a graduate was imposed .Instantly. Under Article 30(2) of the Constitution, validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy and that no action shall lie against the State, any organ or authority of the State, or any person on such ground. Thus, the inaction of the State in not providing equal opportunities of education in the country does not entail any penal consequences.
Nevertheless, the inaction of citizens in not acquiring educational qualification has been made punishable instantly and the non-graduates deprived of contesting election. Indeed, this is an anomalous situation.
35. Lt was contended by Mr. Khaki that to cope with the low literacy rate, the educational qualification could be relaxed in respect of under-developed or far flung areas, such as Baluchistan etc. Ln the alternative he submitted that the requirement of educational qualification could be lowered from graduation to intermediate for next general election and not for by-election.
However, he emphasized that doing so was the job of the executive or the legislature and not of the judiciary. He reiterated that the petition was belatedly filed after the Parliament had been elected and the government formed. The party in power had the opportunity and means to table a bill in the Parliament and get the law amended. The law was reasonable and in view of the Constitutional protection, the petition should be dismissed.
36. With the assistance of the learned counsel for the petitioners, the learned Deputy Attorney- General, the intervener and the learned Attorney-General for Pakistan, we have gone through the case-law on what is reasonable or unreasonable restriction or classification with reference to the enforcement of fundamental rights guaranteed under the Constitution. We would suffice by referring to only few of the cases, ln Jibendra Kishore Achhryya Chandhary v. Province of East Pakistan [PLD' 1957 Supreme Court (Pak) 9], this Court at page 38 held as under:- Whatever the expression "equal protection of law" may mean, it certainly does-not mean equality of operation of legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated Negroes equal rights to the enjoyment of life, liberty and property. Though in the United States the guarantee .Of equal protection of the laws has been invoked upon more occasions than any other Constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the "equal protection of the laws" that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court, But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, some broad propositions as. To its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. Ln the application of these principles, however, it has always been recognized that classification of persons- or things is in no way repugnant to the equality doctrine provided 'the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. Lt is not for the'
Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that . Proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts.
Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rent for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriation was necessary and not an unreasonable classification.
Ln Abul Aala Maudoodi v. State (PLD 1964 SC 673 at 707) this Court expounded the law on reasonable restriction as under:- "The view that the expression "reasonable restrictions" in a case like the present should be considered exclusively in relation to the factual grounds on which the law imposing the restrictions declares that they may be imposed is one, which in my view, cannot be accepted by a Court which is required to enforce a citizen's right of free association as formulated in' the Constitution. The citizen is entitled to approach the Court for a declaration, firstly, that his freedom has been restrained under law, and secondly, that it has been unreasonably restrained, and for the determination of the latter question, I find it impossible to exclude from consideration, the circumstances of the application of the restraint. A circumstance of overpowering importance, where the Constitution guarantees such a freedom, would be that the restraint has been applied by a person in authority acting merely on his own opinion. I may here cite in support a short passage from the judgment of the United States Supreme Court in the celebrated case of Yick Wo
(1) (30 Lawyers' Edition, p.220):- "For the very idea that one man may be compelled to hold his; life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself"
Although some weight might be allowed to the contention of Mr. Manzur Qadir that the Courts should assume that an opinion of the Provincial Government in a case like the present has been formed in a responsible manner after a proper examination of the relevant facts, yet I do not conceive that the intention of the Constitution is that the citizens shall enjoy their Fundamental Rights subject to an opinion based, however responsibly, on the mere one sided appraisement of such facts as have been brought to the notice of the authority making the order. Great importance is to be attached to the fact that the Constitution itself makes the Governor, namely a single person, the sole source of executive authority , in the Province. To accept the view advanced by Mr. Manzur Qadir would be in effect to cause the opinion of a single person to prevail against the Fundamental Right of all the citizens, over whom he is to exercise executive responsibility and power in the particular respect. The Courts cannot regard themselves as satisfied that the citizen's freedom has been subjected to a reasonable restriction unless it is proved to their satisfaction that not only the grounds of the restrictions as stated by the law are reasonable in themselves, but they have been applied reasonably as required by the Constitution. The only manner which the Courts themselves would regard as reasonable is that existence of the factual grounds of the restriction should have been established in the mode which the Courts recognize as essential where a right to life or liberty or property is concerned, namely, after a proper hearing given to the person concerned. (I postpone for later consideration the question whether to grant the hearing after making the order, can ever be reasonable). Any presumption that the authority in question has acted in accordance with justice or reason or equity, if made by the Courts in respect of such actions would, in my opinion, amount to a denial of the duty which the Courts are called upon to discharge in respect - of these fundamental matters. The duty of the Courts would be thus to apply the principles of reason and justice according to the procedures with which they are familiar, to the ascertainment of the' questions whether the restrictions in themselves are consistent with justice and reason, whether the conditions for their application have in fact been established, and.
Whether they have been applied by competent authority. These are matters falling within the large principle of judicial review as a power possessed by the Courts, for the correction of excesses in action under law." ln the case of I.A. Sharwani v. Government of Pakistan (1991 SCM R 1041), this Court summarized the propositions governing equal protection of law and reasonable classification as under:-
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable Classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for. Different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances; ^
(v) that a law applying to one person or one class 'of persons may be constitutionally valid if there is sufficient basis or reason for if, but a classification which is-arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based:-
(a) on an intelligible differentia which distinguishes persons or things that are k grouped together from those who have been left out; and
(b) that the differentia must have rationa1 nexus to the object sought f'' oe achieved by such classification. l v '
Principles as to classification are as under:
(a) A law may be Constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others; that single individual may be treated as a class by himself;
(b) There is always a presumption in favour of the-, constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of * the Constitutional principles. The* person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising of presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;
(e) it must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;
(d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the - need is deemed to be the clearest;
(e) in order to sustain the presumption of constitutionality, the Court may- take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; ' (f) while good faith and knowledge of the , existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain . s individuals or corporations to hostile or discriminating legislation;
(g) a classification need not be scientifically perfect or logically complete; and
(h) the validity of a rule has to be judged by assessing its overall effect ^pd not by picking up exceptional cases.
The Court has to see is whet! .Cm the classification made js a just one taking all aspects into consideration.
To understand the concept of reasonable restriction in the context of fundamental rights guaranteed under the Constitution, reference may also be made to the following case-law:- The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a. Proper balance between the freedom ' guaranteed in Art. 19(1)(g) and the social control permitted by Cl. (6) of Art. 19, it must be held to be wanting in that quality. Sri Lakshmindra Therefore Swamiar v. Commissioner HRE, Madras (AIR 1952 Mad. 613 at p.636).
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness. Sanihanakrishna Odayar v. Vaithilingam (AIR 1954 Mad. 51 at p. 54).
Clause (6) or Art. 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of Cl. (1) of Art. 19, Quite obviously it is left to the Court, in the case of dispute to determine the reasonableness of the restrictions imposed by the law. Ln determining that question the Court cannot proceed on a general nation of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed.
The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like Cl. (6), the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot be decided on that basis. What the Court has to do is to consider whether the restrictions imposed are reasonable in the interest of the general public. M. H.
Quesrhi v. State of Bihar (AIR 1958 SC . 731 at p.744).
Reasonable restriction.-ln order to test the reasonableness of restrictions no general standard exists, lt will depend upon a variety of reasons and the nature of the safeguard, if any provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end the existence of .a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of Law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed. Islamic Republic of Pakistan v.
Abdul Wali Khan (PLD 1976 SC 57).
Ln a recent judgment reported as Pakistan Muslim Leaque (N) v. Federation of Pakistan (PLD 2007 SC 642), this Court exhaustively examined the case-law on this aspect. Some of the propositions noted therein are reproduced below:- "(29) No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt, that reasonable restriction can be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest.
The concept of "reasonable restriction" was discussed in case East and West Steamship Co. v.
Pakistan (PLD 1958 SC (Pak.) 41) as follows:- "A reasonable restriction" in the sense of Article 11 is one which is imposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will, of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being the minimum that is required to preserve the public interest."
(37) lt is, however, to be noted that "where a . Fundamental right is sought to be restricted by any law, care should be taken that they provide sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by them. Ln this respect it must be remembered that though a law may hot in terms restrict the exercise of certain right under this Article yet if it has the. Effect of doing so, it will be open to challenge (AIR 1961 SC 293, AIR 1952 SC 115,1952 SCR 572)."
37. We have also considered the dictionary meaning of the word 'reasonable' i.e. Just, proper, fair, equitable, and that which is acceptable to a man of common prudence and that of the word 'unreasonable' i.e. Unjust, unfair and that which is not acceptable to a man of ordinary prudence, lt is well-settled that under Article 17(2), restrictions may be placed on the right to contest election, but such restrictions have to, be reasonable. As held in Jammu and Kashmir Tahreek-e-Amal Party v. The Azad State of Jammu & Kashmir (PLD 1985 AJ&K 95), reasonable restriction within the contemplation of Article 17 of the' Constitution is one which does not deprive the society as a whole, or the majority of people from. Exercising their fundamental rights, ln the said case, vires of Section 8-A introduced in the Azad Jammu & Kashmir Political Parties Ordinance, 1985 were challenged before the High Court of Azad Jammu & Kashmir. The impugned Section 8-A provided that the registration of a political party shall be cancelled if the number of votes secured by it at a general election was less than 12 and a half per cent of the aggregate of -the valid votes cast at the said election and less than 5% of the aggregate of valid votes cast in each district. The High Court found the afore-said provision as violative of the fundamental right of freedom of association envisaged by Article 7 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (equivalent of Article 17 of the Constitution of Pakistan) and declared the same as void.
38. The leamed. Deputy Attorney General submitted that right to contest election was a valuable right of the citizens and could not be curtailed as was done through the impugned educational qualification, ln support of his contention, he, referred to the case of Abdul Maiid v. Chief Election Commissioner Azad Jammu & Kashmir (PLD 1985 Azad J&K 83). The petitioner in the said case was debarred from contesting election on the ground that he was an office bearer of an unregistered political party. For the redressal of grievance, he invoked the writ jurisdiction. The High Court of Azad Jammu & Kashmir held that franchise was a celebrated right of the citizens and it was always desirable that this right was exercised by the citizens freely, without discrimination, restriction or hindrance, lt was further held that the restrictions could not be imposed to abridge or control the franchise keeping in view the rule of beneficial construction. The restriction was held to be tantamount to disenfranchising a citizen and was declared to have been passed without lawful authority and, as such of no legal effect.
39. The learned Attorney General submitted that ln India the question of requirement of educational qualification for contesting election was discussed in the case reported as Union of India v. Association for Democratic Reforms (AIR 2002 SC 2112). At Para. 10 of the judgment, the Court held as under:- "Supplementing the afore-said submission, Mr. Ashwini Kumar, learned senior counsel appearing on behalf of intervener - Indian National Congress submitted that the Constituent Assembly had discussed and negatived requirement of educational qualification and possession of the assets to contest election. For that purpose, he referred to the Debates in the Constituent Assembly. He submitted that 3/4th of the population is illiterate and providing education as a qualification for contesting election was not accepted by the Constituent Assembly. Similarly, prescribing of property qualification for the candidates to contest election was also negatived by the Constituent Assembly. He, therefore, submitted that furnishing of information regarding assets and educational qualification of a candidate is not at all relevant for contesting election and even for casting votes.
Voters are not influenced by the educational qualification or by possession of wealth by a.
Contesting candidate, lt is his say that the party whom he represents is interested in purity of election and wants to stop entry of criminals in politics or its criminalization but it is for the Parliament to decide the said question, lt is submitted that delicate balance is required to be maintained with regard .To the jurisdiction of the Parliament and that of Courts and once the Parliament has not amended the Act or the Rules despite the recommendation made by the Law Commission or the report submitted by the Vohra Committee, there was no question of giving any direction by the High Court to the Election Commission." ln the above-case, the Election Commission of India issued an instruction that educational qualifications of all the candidates be published. The matter came up before the Supreme Court and the direction of the Election Commission was upheld in the following terms:- "24. For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? Ln our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate would be based on his own relevant criteria of selecting a candidate, ln democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens-voters. Ln a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property .Is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided - its result, if pending - whether charge is framed or cognizance is taken by the Court?
There is no necessity of suppressing the relevant facts from the voters.
At Para. 25 of the above judgment, the Court held as under:-:
(25) The Constitution Bench of this Court in 0 Mohinder1' Singh Gill' v. The Chief Election ;o Commissioner, New Delhi (1978) 1 SCC 405) while or dealing with a contention that Election Commission has no power to cancel the election and direct re-poll, referred to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words:- "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.
If we may add, the little large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men 'dressed in little, brief authority'.
For 'be you ever so high, the law is above you'.
The moral may be stated with telling terseness . In the words of William Pitt; "Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of* Power best expressed by Benjamin Disraeli (Vivian Grey, BK VI Ch 7): I repeat... That all power is trust that we are accountable for its exercise - that, from the people and for the people, all springs, and all must^exist".
Once again the Supreme Court of India happened to consider the issue of disclosure of information regarding educational qualifications of the electoral candidates in the case reported as Peoples Union for Civil Liberties (PUCL) v. Union of India (AIR 2003 Supreme Court 2363).. At para. 128 of the judgment (p. 2410), the Court, in yet stronger words, held as under:- "The last item left for discussion is about educational qualifications, ln my view, the disclosure of information regarding educational qualifications of a candidate is not an essential component of the right to information flowing from Art. 19(1 )(a). Consistent with the principle of adult suffrage, the Constitution has riot prescribed any educational qualification for being member of the House of the People or Legislative Assembly. That apart, I am inclined to think that the information relating to educational qualifications on contesting candidates does not serve any useful purpose in the present context and scenario, lt is a well-known fact that baring a few exceptions, most of the candidates elected to Parliament or the State Legislatures are fairly educated even if they are not graduates or post-graduates. To think of illiterate candidates is. Based on a factually incorrect assumption. To say that well-educated persons such as those having graduate and post graduates qualifications will be able to serve the people better and conduct themselves in a better way inside and outside the House is nothing but overlooking the state<. Realities. The experience and events in public i;r and the legislatures have demonstrated that dividing line between the well educated and less educated from the point of view of his/her caliber and culture is rather thin.
Much depends un the character of the individual, the sense of devotion to duty and the sense of concern to the welfare of the people. These characteristics are riot the monopoly of well educated person, I do not think that it is necessary to supply information to the voter to facilitate him to indulge in an infructuous exercise of comparing the educational qualifications of the candidates, lt may be that certain candidates having exceptionally high qualifications in specialized field. May prove useful to the society, but it is natural to expect that such candidates would voluntarily come forward with an account of their own academic and other talents as a part of their election programme. Viewed from any angle, the information regarding educational qualifications is not a vital and useful piece of information to the vote, in ultimate analysis. At any rate, two views are reasonably possible. Therefore, it is not possible to hold that the Parliament. Should have necessary information regarding educational qualifications of the candidates."
The Indian Supreme Court, in the light of the discussions by the framers of the Constitution on the question of prescribing educational qualification for contesting election held that in a. Democratic form of government, voters were of utmost importance. They had the right to elect or re-elect on the basis '"f the antecedents and past performance of a candidate. It. Cy had the choice of deciding whether holding of educational qinioation or property was relevant for electing or re- electing a person as their representative.
40. The leamed Attorney General submitted a list of 29 countries, United States of America inclusive, giving qualification/eligibility criteria of the members of - their Parliaments/legislative bodies. These are as Under- Section 48 of the Constitution of Argentina which deals with question of membership of the Congress consisting of two houses, one of Deputies of the Nation and the other of Senators for the provinces reads as under:- "ln order to be a deputy it is necessary to have attained to the age of 25 years; to have been four years a fully qualified citizen; and to be a native of the province electing him or to have two years of immediate residence therein. Section 55 of the Japanese Constitution prescribes . Following conditions for the election of the Senators:-
(i) To have attained the age of 30 years,
(ii) To have been six years a citizen of the Nation,
(iii) To have an annual income of two thousand strong pesos or similar revenues, and
(iv) To be a native of the province electing him or to have two years of immediate residence therein.
Section 34 of the Australian Constitution lays down the following qualifications of a Member of the House of Representatives:---
(i) He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the , r. House of Representatives, or a person qualifies to become such elector, and must have been for three years at the least a resident within the limits of the commonwealth as existing at the time when he was chosen; and
(ii) He must be a subject of the Queen, either natural-born or for at least i.e years naturalized under a law of the United Kingdom, or of a colony which has become of becomes a State, or of the Commonwealth, or of a State.
Article 66 of the Constitution of Bangladesh provides the following qualification and disqualification for election to Parliament:-
(i) A person shall subject to the provision of clause (2), be qualified to be elected as, and to be, a member of Parliament if he is a citizen of Bangladesh and .Has attained the age of twenty-i.e years.
(ii) A person shall be disqualified for election as, or for being, a member of Parliament who:
(a) is declared by a competent Court to be of unsound mind;
(b) is an undischarged insolvent;
(c) acquires the citizenship of, or affirms of acknowledges allegiance to, a foreign State.
Article 64 of the Constitution of Belgium lays down the following qualifications:
(i) To be eligible, one must:- 1
(a) be Belgian;
(b) enjoy civil and political rights;
(c) have completed the age of twenty-one; and
(cf) * be legally resident in Belgium.
(ii) No other condition of eligibility can be required.
Article 76 of the Constitution of Cambodia lays down the following qualification for membership of the Assembly:- The deputies shall be elected by a free, universal, equal, direct and secret ballot. The deputies may be re-elected Khmer citizens able to stand for election shall be the Khmer citizens of either sex who have the right to vote, at least 25 years of age, and who have Khmer nationalities at birth Preparation for the election, procedure and electoral process shall be determined by an Electoral Law.
Section 30 of the Constitution of Denmark lays down the following qualification as Eligibility for Membership of the Parliament:-- 1
(1) Any person who has a right to vote at Parliament elections shall be eligible for membership of the Parliament, unless he has been convicted of an act which in the eyes of the public makes him unworthy of being a member of the Parliament.
(2) Civil Servants who are elected members V of the Parliament shall not require permission from the Government to accept their election.
Ln France, under Article 25 of its Constitution, an Organic Act shall determine the term for which each assembly is elected, the number of its members, their emoluments, the conditions of eligibility and ineligibility and the offices incompatible with membership of the Assemblies.
Ln Germany, under Article 38 of its Constitution, anyone who has attained the age of eighteen years is entitled to vote; anyone who has attained majority is eligible for election.
Ln India, qualifications for membership of Parliament are provided in Article 84 of its Constitution, which reads as under:- - A person Shall not be qualified to. Be chosen to fill a seat in Parliament unless he:
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an Oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age And, in the case of a seat in the House of the People, not less than twenty-i.e years of age; and -
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
Articles 62 and 63 of the Iranian Constitution which deals with the qualifications etc. Of Membership in the Islamic Consultative Assembly reads as under:-
62. The Islamic Consultative Assembly is ' constituted by the representatives of the people elected directly and by secret ballot. The qualifications of voters and candidates, as well as the nature of election, will be specified by law.'
63. The term of membership in the Islamic Consultative Assembly is four years. Elections for each term must take place before the end of the preceding term, so that the country is never without an Assembly.
Ln Ireland, under Article 16 of its Constitution deal with the eligibility for membership of the House of Representatives, which is as under:- Every citizen without distinction of sex who has reached the age of twenty-one years and who is not placed under disability or, incapacity by this Constitution or by law, shall be*eligible for membership of the House of Representatives.
(i) All citizens, and
(ii) Such other, person in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of the 'House of Representatives, shall have the right to vote at an election for members of the House of Representatives.
Under Article 56 of the Italian Constitution, all persons who have , reached the age of twenty i.e years on the day of the elections are eligible for membership.
Under Article 82 of the Constitution of Kuwait a. Member of the National Assembly shall:-,
(a) be a Kuwaiti by origin in accordance with law; be qualified as an elector in accordance with the electoral law;
(b) be not less than thirty calendar years of age on the day of election;
(c) be able to read and write Arabic well;
(d) be able to read and write Arabic well.
Ln Namibia, the eligibility criteria for membership of National Assembly is expressed in negative terms, Article 47 of its Constitution provides the following disqualification of members:--- . (1) No persons may become members of the National Assembly if they: (a), have at any time after Independence, been convicted of any offence in Namibia, or. Outside Namibia if such conduct - v would have constituted an offence within Namibia and for which they have been sentenced to death or to imprisonment of more than twelve months without the option of a i.e, unless they have received a free pardon or unless such imprisonment has expired at least ten years before the date of their election ; or
(b) have at any time prior to Independence been convicted of an offence, if such conduct would have constituted an offence . Within Namibia after Independence, and for which they have been sentenced to death or to imprisonment of more than twelve months without the option of a i.e, unless they have received a free pardon or unless such imprisonment has expired at least ten years before the date of their election: provided that no person sentenced to- death or. Imprisonment for acts committed in connection with the struggle for . The independence of Namibia shall be disqualified under this paragraph from being elected as a member of the National Assembly; or
(c) are un-rehabilitated insolvents; or
(d) are of unsound mind and have been so declared by a competent Court; or
(e) are remunerated members of the public service of Namibia; or
(f) are members of the National Council, Regional Councils or Local Authorities.
(2) f . For the purpose of paragraph (1):
(a) no person shall be considered as ' having been convicted by any Court until any appeal with might , , have been noted against the conviction or sentence has been determined, or the time for noting an appeal against such conviction has expired;
(b) the public service shall be deemed to include the defence force, the police force, the prison (i. Service, para-statal enterprises, Regional Councils and local authorities.
Ln Nepal, under Article 47 of its Constitution, qualifications for membership of National Assembly are as under;-- ln order to become a member of Parliament any person: v
(a) must be a citizen of Nepal;
(b) must have attained twenty-i.e years of age for the House of Representatives and thirty-i.e years for the National Assembly;
(c) should not be disqualified under any law; and
(d) should not hold an office of profit.
Explanation. - For the purpose of this sub-clause, "office of profit" means any position, other than a political position, to be filled by election or nomination for which a remuneration or economic benefit is paid out of a Government Fund.
Under Article 56 of the Constitution of Netherlands, to be eligible for membership of the Parliament, a person must be a Dutch national, must have attained the age of eighteen years and must not have been disqualified from voting. .
Under Article 5 of the Constitution of Puerto Rico, No person shall be a member of the Legislative Assembly unless he is able to read arid write the Spanish or English language and unless he is a citizen of the United States and of Puerto Rico and has resided in Puerto Rico at least two years immediately prior to the date of his election or appointment. No person shall be a member of the Senate who is not over thirty years of age, and no person shall be a member of the House of Representatives who is not over twenty-i.e years bf age.
Under Article 97 of the Constitution of Russia:---
(1) Any citizen of the Russian Federation aged 21 and older who has the right to take part in elections may be. Elected deputy to the State Duma. . (2) One and the same person may not concurrently be a deputy to the Federation Council and to the State Duma. A deputy to the State Duma may not be a deputy to any other representative body of State power or bodies of local self-government. "
Under Article 45 of the Constitution of Singapore:--
(1) Subject to this article, a person shall not be qualified to be a Member of Parliament who:
(a) is and has been found or declared to be of unsound mind;
(b) is an Undischarged bankrupt; ' (c) holds an office of profit;
(a) having been nominated for election to Parliament or the. - .... Office of President of having .v ' acted as election agent to a person so nominated, has failed to lodge any return of "election expenses required by law within the time and in the manner so required;
(b) has been convicted of an offence by a Court of law in Singapore or v Malaysia and sentenced to imprisonment for a term of not less than one year or to a i.e of . v not less than $2,000 and has not . Received a free pardon:*. Provided that where' the conviction is by a Court of law in Malaysia, the person shall not be so disqualified unless the offence is also one which, had it been v . Committed in Singapore, would have been punishable by a Court " of law in Singapore;
(c) has voluntarily acquired the citizenship of, or exercised rights of citizenship in, a foreign country or has made a declaration of allegiance to a foreign country; or
(d) is disqualified under any law relating to offenses in connection with elections to Parliament or the office of President by reason of having been convicted of such . An offence or ' having in proceedings relating to such an election been proved guilty of an act constituting such an offence.
(2) The disqualification, under any law relating to offenses in connection with elections to Parliament or the office of President by reason of having been convicted of such an offence or having in proceedings relating to such an election been proved guilty of an act constituting such an offence.
Under Article 47 of the Constitution of South Africa:-
(1) Every citizen who is qualified to vote for (the National Assembly is eligible to be a member of the Assembly, except:-
(a) anyone who is appointed by, or is . In the service of, the State and receives remuneration for that appointment or service, other than:-
(i) the President, Deputy President, Ministers and Deputy Ministers; and (iii other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation;
(b) permanent delegates to the National. Council of Provinces or members of a provincial legislature or a Municipal council;
(c) un-rehabilitated insolvents;
(d) ' anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a i.e, either in the Republic, or oytside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may bf regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends i.e years after the sentence has been completed.
(2) A person who is not eligible to be a member of the National Assembly in terms of sub-section (1 )(a) or (b) may be a candidate for the Assembly, subject to any limits or conditions established by national legislation.
(3) A person loses membership of the National Assembly if that person:
(a) ceases to be eligible'; or
(b) is absent from the Assembly without permission in circumstances for which the rules and order of the Assembly prescribe loss of membership.
(4) Vacancies in the National Assembly must be filled in terms of national legislation.
Under Article 41 of the Constitution of South Korea:-
(1) The National Assembly is composed of members elected by universal, equal, direct, and secret ballot by the citizens.
(2) The number of members of the National Assembly is determined by law, but the number may not be less than 200.
(3) The constituencies of members of the National Assembly, proportional representation, and other matter pertaining to National Assembly elections are determined by law.
Under Article 70 of the Constitution of Spain:-
(1) The electoral law shall determine the reasons for ineligibility and incompatibility of Deputies and Senators, which shall include in any case:-
(a) the member of the Constitutional Court;
(b) the high officers of the State Administration, as determined by law, with the exception of the f members of the Government;
(c) the Defender of the People;
(d) the Magistrates, Judges, and Prosecutors on active duty;
(e) the professional military and ; members of the Armed Forces, Corps of Security, and police on active duty; and , (f) the members of the Electoral r * Commissions.
(2) The validity 'of the records and credentials of the members of both chambers shall be subject to judicial control under the terms to be established by the electoral law.
Under Article 102 of thd Constitution of Sri Lanka:-
(1) Every person who is qualified to be an elector shall, be qualified to be elected as a member of Parliament unless he is ' t disqualified under the provisions of paragraphs (2) -
(2) No person shall be qualified to be elected as a member of Parliament or to sit and vote in Parliament:
(a) if he is or becomes subject to any of the disqualification specified in Article 101;
(b) if he:
(i) stands nominated as a candidate for election for more than one electoral district at a General Election,
(ii) stands nominated as a~ candidate for election by more . ' than one recognized political party or independent group in respect of any electoral district,
(iii) stands nominated as a candidate for election for an electoral district and before the conclusion of the election for that electoral district, stands nominated as a candidate for election for any other electoral district,
(iv) being a member of Parliament, except in the circumstances referred to in Article 83(6) or Article stands nominated as. a candidate for election for any electoral district;
(c) if he is the President of the Republic;
(d) if he is the Governor of a Region;
(e) . If he is:
(i) a Judicial Officer,
(ii) the Parliamentary Commissioner for Administration (Ombudsman), * '(iii) the Secretary General of Parliament or a member of his staff;
(iv) a member of the National Public Service Commission, ' or the ' finance Commission or the National Police Commission or a Regional Judicial Service Commission or a Regional Public Service Commission or a Regional Police Commission;
(v) the Commissioner of Ejections or a member of the Election Commission;
(vi) the Auditor-General;
(vii) a public officer holding any office Created prior to. *' November 18, 1970 the initial of the salary scale of * which was, on November 18, 1970, not less than Rs.6,720/- per annum or such other amount per annum as would, under any subsequent revision of salary scales, correspond to such initial;
(viii) a public officer holding any office created after November 18, 1970, the initial of the salary scale of which is, on the date of creation of that office, not less than the initial of the salary scales applicable, on that date, to an office referred to in item;
(ix) an officer in any public corporation holding any office created* prior to \ November 18, 1970, the initial of the salary scale of which was on November 18, 1970, not less than Rs. 7,200/- per annum or such other amount per annum as would, under any subsequent revision of salary scales, correspond to such initial;
(x) an officer in any public corporation or of any regional Public service, holding any office created after November 18, 1970, the initial of the salary scale of which is, on the date of creation of that office, not less than the initial of the salary scale applicable on that date to an office referred to in item (ix) or such other amount per annum as would, under any subsequent revision of salary scales, correspond to the first mentioned initial;
(xi) a member of the Regular Force of the Army, Navy or Air Force; or a police , officer or a public officer exercising police functions;
(f) If he has any such interest in any such contract made by or on behalf of the State or a public corporation as Parliament shall by law prescribe;
(g) If he is an undischarged bankrupt or insolvent, having being declared bankrupt or insolvent;
(h) If during the preceding seven years he has been adjudged by a competent Court or by a Special . ' Presidential Commission of Inquiry to have accepted a bribe or gratification offered with a view to influencing his judgment as a member of Parliament or as a view to influencing his judgment as a member of Parliament or as a member of the legislature prior to the commencement of the Constitution.
Under Article 10 of the Constitution of Sweden, only a person who is qualified to vote can be a member of the Parliament or an alternate member of the Parliament.
Under Article 75 of the Constitution of Switzerland, every lay Swiss citizen entitled to vote is eligible for membership of the National Council.
Under Article 2(2) of the Constitution of United States of America, no person shall be a Representative who shall not have attained to the age of twenty-i.e years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.
41. The learned Attorney General further submitted that the impugned educational qualification was against the rights recognized by the United Nations in "The International Covenant on Civil and Political Rights" (Cases, Materials;, and Commentary) by Sarah Joseph, Jenny Schultz and Melissa Castan, Second Edition (Oxford University Press). Article 25 thereof reads as under - "Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:-
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected, at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
The above clause (b) of Article 25 enshrines the right to stand for election, lt may be advantageous to reproduce below the General Comment 25 given at page 663 ibid, which reads as under:- The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category persons from elective office.
42. The learned Attorney General next contended that the impugned educational qualification was also against the United Nations Universal Declaration of Human Right?, Article 21 whereof is reproduced below:- "Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone' has the right of equal access to public service in his country,
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be universal and equal suffrage and shall be held by secret vote or. By equivalent free voting procedures."
43. He also referred to the article titled "B.A. Or Be Out" by Mr., Mohammad Akram Sheikh, a Senior Advocate of this Court, who had dilated upon the issue from different perspectives. Regarding 'Education and Eligibility' he surveyed educational qualification required for membership of Parliaments in different countries of the world. He noted restrictions of formal education as under:- "ln Cameron, a person seeking membership of the National Assembly should be able to read and write French or English; in Costa Rica one should only be' able to read and write; in Egypt a person seeking election to peoples Assembly must be "literate"; in Indonesia, however, requires a Secondary School or equivalent qualifications from Members of the House of Representatives, ln Ireland, candidates selected from a panel must have knowledge and experience relevant to the Panel from Chambers of Deputies and senate; in Jordan, a senator must also be a prominent person who has rendered "service to the nation". For the National Assembly of Kenya "literate in Swahili and English" qualifies to be elected, in Kuwait the requirement is that a member should be literate in Arabic, in Lebanon the member of the National Assembly has to be able to read and speak English; Malaysia does not require any formal education and one has only to be literate to be elected to the Senate and House of Representatives, ln Mai one who is able to read and write French can become member of the National Assembly while Mauritius requires "competence in written and spoken English" Philippines National Assembly requires its members to read and write.
Rwanda National Development Council demands qualification of "at least 4 years of secondary studies", ln St. Vincent ability to Speak and write English is considered sufficient to stand for House of Assembly; Syrian Arab Republic also requires members to be "literate" Thailand does not require any qualification from Thai bom candidates but those with alien father must have at least Thai Secondary Education or a University Degree.
For the National Assembly of Uganda 4 years of Senior Secondary School or equivalent qualifications are considered sufficient. None of the former Soviet Union Countries, now C.I.S., require any education qualification whatsoever. The British Parliament, which claims to be mother of all Parliaments, does not ' require its members to have any educational qualification whatsoever nor des the US Congress or Senate require its members to come armed with formal education, ln Zaire, 4 years post Primary Education or adequate political or administrative experience is good enough for members of Legislative Council, and in Zambia and Zimbabwe to be able to read and write English are considered sufficient. AII other countries, which do not find mention in the preceding paragraphs, do not demand any requirement of formal or informal educational qualifications, lt may be interesting to note that even Sri Lanka where majority part of its population comprises formal graduates has not thought it proper to impose restriction of formal education.
The logic is simple; every elector, as far as possible, should be able to become a candidate and offer himself to be chosen as a representative."
The learned Attorney General next referred to an Article entitled "A facility for fraud" by I.A. Rehman published in the Daily Dawn of October 04, 2007. The Article opens with the following remarks:- "As the life of the National Assembly bom in 2002 comes to a close, a review of its performance is in order. This Assembly, the more powerful of the two Houses of Parliament, was born with a disability.
The condition that only graduates were eligible to sit in it had 'eroded its representative character.
Besides, this condition proved to be a facility for fraud and subversive of representative rule and justice both."
The author of the article has taken the view that the elected representatives are not expected to be experts who can be hired from the market; they are only required to be aware of their electors' needs and aspirations. Anyone qualified to vote can be a candidate for elective office subject only to restrictions .Of age. Specific to the requirements of B.A. Degree, the author has made the following comments:- "The BA degree does not make anyone an expert. Most graduates in Pakistan know less of life and the world than a has or a cobbler or a factory worker, and their false notions of superiority over the illiterates prevents them from appreciating the reality, except for their limited bread-and butter concerns. Experience of the 2002-2007 Parliament does not show that its members proved to be any better upholders of democratic, responsible rule than their less academically qualified predecessors, or even more efficient in a technical, purely clerical sense.
Above all, the graduation condition opened the way to corruption and crime. Court records confirm many politicians' efforts at buying and forging degrees. And the scheme to admit madrasseh certificates as graduation degrees led to perhaps the greatest electoral fraud in the subcontinent's history. The deception was detected within months of the 2002 polls, but the huge wrong has not been remedied to this day. The story of this case made the argument for abolishing the degree condition incontrovertible."
44. The learned counsel for the petitioners and the learned Attorney-General for Pakistan contended that by the impugned educational qualification doors were shut on the non-graduates and overwhelming majority of the population was deprived of their right to contest election and to acquire political authority and participate in the affairs of the country. He brought to our attention the data furnished by NADRA, which showed that out of more than 62.4 million computerized National Identity Cards, the number of registered graduates was only 2,545,448. The area-wise breakup is as under: Area Registered Graduates NWFP 234,030 FATA 10,274 PUNJAB 1,218,115 SINDH , 887,382 Baluchistan 887,382 ISLAMABAD 73,327 FANA 12,107 AJK 52,286 TOTAL 2,545,448 {{TABLE}} The learned Attorney-General submitted that as per Population Census - 1998, approximate population of the country was 160 million, the number of registered voters was 61.8 million while the number of registered graduates was 2,545,448, which was only 1.6% of the total population and only 4.1% of the registered voters. As per record of the Higher Education Commission, the estimated province wise number of graduates is as under:- Provice/Area Graduates(Estimated)
Punjab 1,731,600 Sindh 1,178,166 NWFP 609,926 Balochistan 139,425 Federal Area 524,225 AJK 57,658 TOTAL 4,241,000 As per these figures, only 2.6 per cent of the population and 6.9 per cent of the registered voters are graduates. These graduates include persons in the service of Pakistan who do not have right to contest election under Article 17 of the Constitution.
45. The learned Attorney-General for Pakistan submitted that nowhere in the world any restriction regarding education qualification to contest election existed and Pakistan was the only country where such restriction was imposed. As against this, Mr. Khaki took the plea that the Constitution and culture were unique. The Sub-Continent was partitioned states. one based on the Islamic Ideology and the other professing Hindu religion and culture. i.e. one Islamic State and the other a Hindu State. The learned Attomey-General submittled that it was not the question of logic of the law would be struck down if it placed unreasonable restriction on the fundamental rights as guaranteed by the Constitution, ln Javed Jabber's case, Article 8AA of the Chief Executive's Order No. 7 of 2002 was struck down on the ground of being unreasonable.
46. Ln conclusion, it may be stated that subject to reasonable restrictions imposed by law, the fundamental right enshrined in Article 17(2) of the Constitution to form or be a member of a political party extends to formation of the government and contesting of election as held by this Court in the cases of Benazir Bhutto and Muhammad Nawaz Sharif (supra) provided that a person fulfils the qualifications laid down by or under Article 62 of the Constitution and does not suffer from the disqualifications provided by or under Article 63 of the Constitution (PML(Q)'s case). There are two types of qualifications and disqualifications, some of which are mentioned in the Constitution itself (Articles 62 and 63) and the others provided by law in pursuance of Clauses (i) and (s) of Articles 62 and 63 respectively. While the qualifications and disqualifications mentioned in Articles 62 and 63 of the Constitution are immune from scrutiny by the Superior Courts in the exercise of their power of judicial review, the statutory qualifications and disqualifications are liable to be tested on the touchstone of the provisions of the Constitution.
47. Having considered the connotations of the phrase "reasonable restriction" in the context of enforcement of fundamental rights, we hold that the impugned graduation qualification offended Articles 17 and 25 of the Constitution for various reasons: firstly, it was not called for in the interest of sovereignty or integrity of Pakistan or public order in terms of Article 17(2); secondly, it did not take into consideration social and economic conditions of Pakistan and their impact on the people; thirdly, a vast majority of the population was deprived of their cherished right of franchise, lt may be observed that with the exception of requirement of elementary education, or the ability to read and write, the educational qualification as a condition for contesting election is not in vogue in other countries of the world Moreover, it is against the principles recognized by the United Nations in its different charters. The Constitution was held in abeyance at the time the PML(Q)'s 'case was decided. No authentic data was placed before the Court to show the lack of educational facilities in the far flung areas like PATA, FATA and Baluchistan.
47. The classification based on educational qualification for contesting election is unreasonable inasmuch as at the most 2.6% of the population and 6.9% of the registered voters were allowed to contest the election while more than 93% of the registered voters were disenfranchised, which is against the spirit of democracy. These figures are based on the record of the Higher Education Commission, while according to the NADRA data, the percentage is even lesser, according to which the number of graduate citizens is only 1.6% of the total population and 4.1% of the registered voters.
The literacy rate in the country is just 35%, which. Also4 includes the persons who can read, write or just sign. The acquiring of education is dependent upon the physical conditions and the milieu in which a person may find himself. There is a sharp difference between rural and urban literacy rate.
The urban population has always an upper hand in the sphere of education, ln this behalf, reference was made to Article 37 of the Constitution under which the State was required to promote with special care the educational and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. According to the learned counsel, the State has not fulfilled its obligation of imparting education to all its citizens. The minimum age of a voter has been fixed at 18 years. There is no criterion in terms of education for a voter. Thus, the person who has a right to vote has no right to contest election. A vast majority of the population has been rendered ineligible to contest election through an unjust and unconstitutional requirement of educational qualification, ln the circumstances, the impugned educational qualification is neither a reasonable restriction nor a reasonable classification within the contemplation of Articles 17 and 25 of the Constitution and the same is declared to be void.
48. Above are the reasons for the Short Order dated 21.4.2008, whereby the petitions were disposed of in the. Following terms:- "For reasons to be recorded later, this Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is allowed. The provisions of Article 8-A of the Conduct of General Election Order; 2002 (Chief Executive's Order No. 7 of 2002) and clause (cc) of sub-section (1) of Section 99 of the Representation of the People Act, 1976, which lay down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University, Grants Commission Act, 1974 .Or any other law for the time being in force are declared to be void prospectively on account of their being inconsistent with Articles 17 and 25 of the Constitution.