' ABDUL MAJEED MALLICK, C J.-Jammu and Kashmir Tehrik Atnmal Party and Azad Jammu and Kashmir Muslim Conference, petitioners Nos. 1 and 2, are the political parties registered under the Azad Jammu and Kashmir Political Parties Ordinance, 1985 (hereinafter referred as Ordinance), petitioners Nos. 3 to 10, the returned members of the Legislative Assembly, were the nominees of Tehrik-i-Ammal Party and petitioners Nos. 11 and 12 were nominees of Azad Jammu and Kashmir Muslim Conference. Maj.-Gen. (Retd.) Muhammad Hayat Khan is the Chief of Tehrik-i-Ammal Party whereas Sultan Mahmood Chaudhry is the President of the Azad Jammu and Kashmir Muslim Conference.
2. In this petition, special jurisdiction of the Court is invoked to challenge the vires of section 8-A of the Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985 (hereinafter referred as section 8-A) and provisions of section 5 (2) (xii) of the Azad Jammu and Kashmir Legislative Assembly Election (Amendment) Ordinance, 1985 (hereinafter referred as clause (xii)), on the ground of their being inconsistent and derogatory to the provisions of the Constitution, prescribed under Fundamental Rights, Article 4 (4) 7 (hereinafter referred as Fundamental Right 7).
3. It is of interest to record that the last Legislative Assembly was dissolved in August, 1977 with the understanding that the general elections shall be held within 90 days i,e, 10 days after the general elections proposed to be held in Pakistan. This could not happen for reasons not necessary to be listed here and second time, general elections were announced to be held in October, 1979 but this time again, elections were postponed indefinitely. As the general elections were attached with the elections of Pakistan, consequently, after the general elections held in Pakistan in March last, the Chief Election Commissioner announced the schedule for holding general elections of the Legislative Assembly in Azad Jammu and Kashmir. The schedule was announced on. April 6, according to which nomination papers were to be filed on April 13, 14 & 15 and scrutiny was to be made on April 16 and the polls were to be held on May 15, 1985. Three days after the announcement of the schedule, i,e, on 9th April, the provisions of section 8-A and clause (xii) were enforced with immediate effect. As the enforcement of the new legislation was resented, to settle down the controversy, a meeting was convened by the Prime Minister of Pakistan in his capacity as Chairman of the Azad Jammu and Kashmir Council, on April 17. It was attended by the President, Chief Election Commissioner, concerned officers and leaders of various political parties, including Maj. Gen. (Retd) Muhammad Hayat Khan and Sultan Mahmood Chaudhry. As a result of deliberations in the meeting, section 6-A was enforced on April 18, with effect from April 6, 1985 i,e, the date of announcement of the schedule of the general elections. Section 6-A postulated chat any political party registered under section 5 or declared under section 6 of the Ordinance, to be eligible to participate in the elections to a seat in the Assembly, may, by resolution passed by Chief decision-making body, at the national level, of that party, decide to merge with another such political party so as to be absorbed by the latter party which retained its name and identity. It laid down a procedure for doing so under the authority of the Chief Election Commissioner. Thus, section 6-A provided an opening to political parties to merge into each other.
4. Five political parties. Namely, All Jammu and Kashmir Muslim Conference, Jammu and Kashmir Liberation League, Jammu and Kashmir Tehrik-i-Ammal Party, Azad Jammu and Kashmir Muslim Conference and Muslim Conference (Ghazi Group) participated in the elections. We understand that Muslim Conference (Ghazi Group) abstained from putting up any candidate in general elections. Thus, only four political parties, out of which Muslim Conference, Azad Muslim Conference and Tehrik-i-Ammal Party, registered and Liberation League, eligible under section 6, participated in the elections. Muslim Conference secured 19 seats, Liberation League 4, Tehrik-i-Ammal Party 8, and Azad Muslim Conference 2 seats. Seven seats were secured by independent candidates. Two seats reserved for women and to be elected by the directly elected members, were secured, one seat each by Muslim Conference and Tehrik-i-Ammal Party. The party position established, thus, in the general elections was as : Muslim Conference 20.
Liberation League 4.
Azad Muslim Conference.
2.
Tehrik-i-Ammal Party 9,
5. The Political Parties Ordinance was enforced in Azad Jammu and Kashmir in September, 1979. It was in parameteria (except with necessary alternations and modifications) with the Political Parties Act, 1962 of Pakistan. Sections 4, 5, 6, 8, 8-A and 10 are relevant. The same are, therefore, reproduced : "4. Political Parties to submit accounts, etc.-Every Political Party shall, in such manner and form and at such time as may be provided by rules made by the Government, account for the source of its funds and submit its finances and accounts to audit by, an officer or authority authorised by the Commissioner in this behalf : ' Provided that every political party in existence at the time of commencement of this Ordinance, shall account for the source of its funds, and submit its finances and accounts to audit, within 15 days of the publication of the rules made under this. Ordinance.
5. Registration of political parties.-(1) Every political party in existence at the commencement of this Ordinance shall, within one month of such commencement and every political party formed after such commencement shall, within one month of its being formed, apply to the Chief Election Commissioner for registration.
(2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of all its office-bearers at the national level and a statement of its total membership in such district, as the Chief Election Commissioner may, by notification in the official Gazette, specify.
(3) The Commissioner shall register a political party applying for registration in accordance with subsection (2) if he is satisfied that the political party-
(a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objects and provided therein for elections of its office-bearer being held periodically ; or
(b) has undertaken to publish any amendment to any document referred to in clause (a) as and when such amendment is made;
(c) has belief in the ideology of Pakistan or the ideology of the State's accession to Pakistan and the integrity and sovereignty of Pakistan ; and
(d) has submitted its accounts required by section 4.
(4) If a political party which has been registered under subsection (3)-
(a) fails, or has failed to submit its accounts within the period specified in section 4 or the rules made thereunder ;
(h) fails to hold election of any office-bearer within the time allowed by, and in accordance with, its constitution and rules ;
(c) propagates any opinion, or acts in any manner prejudicial to the ideology of Pakistan or the ideology of State's accession to Pakistan, or sovereignty and integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan, or morality or the maintenance of public order, or the integrity or independence of the judiciary of Azad Jammu and Kashmir or Pakistan, or defame or brings it to ridicule the judiciary of Azad Jammu and Kashmir or Pakistan or the Armed Forces of Pakistan ;
(d) receives any aid, financial or others i,e, from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals ; or
(e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance, then, without prejudice to any action that may be taken in respect of the political party under section 8, the Commissioner may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration or as the case may be, revoke declaration made in its favour under subsection (4) of section 6.
(5) The cancellation of the registration of a political party under subsection (4) (5) shall be notified by the Commissioner in the official Gazette.
(6) A political party which has not been registered under subsection (3) or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in the Legislative Assembly of Azad Jammu and Kashmir or the Azad Jammu and Kashmir Council or to nominate or put up a candidate at any such election.
6. Certain political parties to be eligible to participate in forthcoming elections.-(1) Save as expressly provided herein, the provision of section 5 shall apply mutatis mutandis where a political party seeks or has obtained declaration under subsection (4).
(2) The Commissioner shall, by notification in the official Gazette, call upon the political parties which had complied with the provisions of section 4 but had not applied for registration under section 5 to furnish to the Commissioner within such times as may be specified in the notification answers to a questionnaire published therewith.
(3) Answer to a questionnaire referred to a subsection (2) shall be furnished on behalf of a political party by such person and shall be accompanied by such documents besides a copy of its constitution and manifesto, a list of the " names of its office-bearers at the national level and a statement of its total membership in each District as may be specified in the notification published under the said subsection.
(4) If after giving a political party which has furnished answers to the questionnaire as required by subsection (2) an opportunity of being heard, the Commissioner is satisfied that the party has fulfilled the requirements of subsection (3) of 'section 5, the Commissioner shall declare the political party by notification in the official Gazette to be eligible to participate in an election to a seat in Legislative Assembly and to nominate or put up a candidate at any such election.
7..............................................................................................................................
8. Dissolution of political parties.-(1) Where the Government is satisfied that a political party is a foreign aided party or has been formed or is operating in a manner prejudicial to the Islamic ideology or ideology of State's accession to Pakistan or the sovereignty and integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan, or morality, or maintenance of public order or has contravened the provisions of section 4, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) stand dissolved, and its all properties and funds shall be forfeited to the Government.
(2) Within fifteen days of the making of a declaration under subsections (1) the Government shall refer the matter to the Supreme Court whose decision on such reference shall be final.
8-A. The registration of a political party shall be cancelled by the Commissioner if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at a general election to the Legislative Assembly is less than twelve and half percent of the aggregate of the valid votes cast at the said election and less than five percent of the aggregate of valid votes cast in each district.
Explanation.-The Districts in Pakistan for the purposes of this Ordinance shall mean one district comprising the seats enumerated in subsection (2) of the Delimitation of Constituencies Ordinance, 1970 and the second District comprising the seats enumerated in subsection (3) of the said Ordinance.
10. Certain disqualifications for being a member of Assembly or of the Council.-(l) A person who has :
(a) at any time on or after the 16th day of April, 1975 been an office-bearer of a political party dissolved under subsection (2) of section 8 and has not after a declaration in respect of such party is made under subsection (1) of that section, resigned from or publicly announced his dissociation with such party; or
(b) been convicted under section 9, shall be disqualified from being a member of Assembly or the Council or a local body and from being elected or chosen as such a member for a period of five years from the date of such dissolution, or conviction as the case may be.
Explanation.-In this section, 'office-bearer of a political party' means an office-bearer at the national or district set up of that party otherwise than as a mere member of the working central, district or other committee of the party.
(2) A person who has at any time on or after the 11th day of August, 1977 been a member of political party dissolved under subsection (2) of section 8 and convicted for an offence committed before such dissolution and punishable with imprisonment for a term which is not less than two years, shall be disqualified from being a member of Assembly or the Council or a local body and from being elected or chosen as such as a member for a period of seven years from the date of such dissolution:"
6. Section 5 (1) postulated that every political party in existence at the time of commencement of the Ordinance shall, within one month of such commencement and every political party formed after the enforcement of the Ordinance, shall, within one month of its being formed, apply to the Chief Election Commissioner for registration. Subsection (2) laid
(2) No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities pre down a scheme for applying to the Chief Election Commissioner and desired the production of certain documents listed therein for the satisfaction of the the Chief Election Commissioner. Subsections (3) and (4) listed certain qualifications necessary for a political party for the purposes of its registration. Clause (e) of subsection (4) authorised the Chief Election Commissioner to cancel the registration of the political party, on the ground of one of the qualifications listed in subsections (3) and (4). Subsection (6) provided that a political party which was not registered or whose registration was cancelled, was not eligible to participate in general elections to a seat in Legislative Assembly, Azad Jammu and Kashmir or the Azad Jammu and Kashmir Council or to nominate or put up a candidate at any such election.
Thus, subsection (6) laid down condition precedent that only those political parties were allowed and eligible to take part in the general elections of the Assembly and the Council which were registered in the light of the provisions of subsection (5) or declared eligible under section 6 (4) of the Ordinance. Therefore, in order to enter into the field of elections of the Assembly and Council, the registration or notification of eligibility as contemplated by the Ordinance, were prerequisites.
Here, it may he stated that three political parties listed above got themselves registered with the object of participating in the elections, whereas Liberation League was declared eligible to participate in elections in the light of the provisions of the Ordinance. Thus, the participation in elections of the Assembly and Council necessitated registration of the political parties.
7. Section 8-A on the other hand, contemplates that registration of a political party shall be cancelled by the Commissioner if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at general elections of the Legislative Assembly is less than 12i percent of the aggregate of the valid votes cast at the said election and less than five percent of the aggregate of the valid votes in each district. The effect of cancellation of registration of a political party was given in the shape of clause (xii). It provided that a person shall be disqualified for being a member if he was elected as a nominee of a political party whose registration was cancelled by the Chief Election Commissioner as a result of operation of section 8-A of the Azad Jammu and Kashmir Political Parties (Amendment) Ordinance. Thus, the effect of deregistration, on one hand, was a disqualification of the member of the Assembly who was returned as a nominee of a deregistered political party and on the other hand, the political party also lost its status as such.
8. In view of the operation of the provisions of section 8-A, the petitioners invoked the jurisdiction of this Court to strike down the impugned provisions for their being inconsistent with the fundamental right 7. As necessary discussion shall relate to fundamental right. It will be useful to reproduce these provisions below : "7. Freedom of association.-Subject to this Act, every State Subject shall have the right to form association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order judicial or detrimental to, the ideology of the State's accession to Pakistan".
9. The. Constitution guarantees the right to every State Subject to form association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order. If further imposes a restriction in the manner that no person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State's accession to Pakistan. The right to form an association is, therefore, subject to reasonable restrictions only on two grounds :
(i) in the interest of morality; or
(ii) in the interest of public order.
' The propagation or activities prejudicial or detrimental to the ideology of the State's accession to Pakistan are prohibited absolutely.
10. Mr. S. M. Zaffar, the learned counsel for the petitioners, content ended that section 8-A was inconsistent with the Fundamental Right 7 as according to him, the impugned provisions deprived a political party from political activities despite the fact that failure to comply with the conditions listed in the impugned provisions, did not fall within the ambit of reasonable restrictions contained in section 4 (4) (7) of the Constitution. Here it is relevant to state that the vires of the impugned provisions were challenged on various grounds, including-
(i) that the impugned legislation was ultra vires to the Constitution ;
(ii) that the impugned provisions were against the teachings of Qur'an and Sunnah ; till) that it was mala fide ; and
(iv) that in the context of section 8-A, the word "and" was used disjunctively and under the accepted rule of interpretation of statutes, words '`and" and "or" are interchangeable, therefore, word "and" was to be read as "or", to avoid the absurd consequences. Likewise, the use of word "each" was interpreted as not to mean each and every district.
' The afore-listed grounds raised in the petition were dropped by the learned counsel as he confined himself only to the first ground of attack referred to above.
11. Before we approach the main proposition raised in the petition, it is also relevant to state that the respondents, in their written statements, raised certain preliminary objections and these objections were-
(i) that the petitioners were not aggrieved persons as no order adverse to them was yet passed ;
(ii) that the petitioners No, 3 to 12 were notified as being elected to the Legislative Assembly and were called upon to participate in the election of two seats reserved for women held on 1st June, 1985 thus the proposed relief was premature and anticipatory; and
(iii) that by their conduct, the petitioners have waived their right to challenge the impugned legislation.
' In support of the preliminary objections, reference was made to the participation of petitioners Nos. 10 and 11 in the meeting presided over by the Prime Minister of Pakistan and press clippings containing the statements of petitioner No,
10. In replication to the written statement, the petitioners repudiated the allegations listed in the preliminary objections and averred that the petitioners participated in the elections as it was an objective of the petitioners as political parties and as politicians to further the, democratic process but that by itself did not debar the petitioners to get the law corrected, which, according to them, was in conflict with the Constitution and violative of the Fundamental Right. Their participation in the elections and challenging the vires of an invalid legislation, according the petitioners, were in the same direction, that is, to ensure full and healthy democratic process in the country. The press clippings containing the statements of Sultan Mamood Chaudhry dated 16th and 18th April, .1985 were appended therewith.
12. Ordinarily, a person is aggrieved when his interest or right I injured by an order or legislation, as such he has Suffered a legal grievance. A M. Munir, in his Constitution of Islamic Republic of Pakistan, at p. 390, discussed the scope of the expression "aggrieved party" as : "It may be Stated generally, that an aggrieved party is one; in prohibition whose rights are threatened, in mandamus whose rights are being denied, and in-certiorari whose rights have been affected by a decision. The word "right" here is not used in its strict juristic sense. It is sufficient if the person alleging to be aggrieved has a personal interest in the performance of a legal duty which is not performed, would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party."
' Mr. S. M. Zaffar invited our attention to Mian Fazal Din's case (1) wherein the scope of an 'aggrieved party' was described in the manner that the right considered sufficient for maintaining the proceedings in a writ jurisdiction was not necessarily a right in the strict juristic sense but it was enough if the applicant disclosed that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment of a privilege of liberty or franchise.
' The aforesaid analysis leads to the inference that the petitioners are aggrieved persons in the sense that if the law which, according to them, is violative of the Fundamental Right, is allowed to remain on the statute book and the Chief Election Commissioner acts in a manner not permitted by the Constitution, it would result in the loss of their privilege, as Member of the Assembly, to adhere to the political activities to achieve the objective of their political parties. Mr. Qayum Malik, in support of his contention, cited Nisar Ahmad's case (2). That case is not helpful to the respondents as the petitioners in that case being tenants of the Evacuce Trust Board, were in occupation of an evacuee shop and a residential portion of the property and they had challenged the orders of transfer of the property to its allottee. The High Court declined to exercise writ jurisdiction as the petitioners being tenants were not considered aggrieved persons. The view of the High Court was maintained in the Supreme Court. There is no force in the objection. It is, therefore, repelled.
12. Next, it was contended that the action of the petitioners in invoking the writ jurisdiction of this Court was premature and anticipatory P I., D 1969 SC 271 (2) 1979 SCMR 299 as no adverse step was taken against them. In support of the objection, Mr. Malik cited National Steel Mill's case (1). He was asked to satisfy as to whether the respondents intended no action to cancel the registration of the political parties and to unseat the petitioners. His answer was indefinite as he had no instructions from his clients to make any commitment in this behalf. Be that as it may, the fact remains that impugned legislation if declared inconsistent with the Constitution, would be likely to be struck down irrespective of the fact whether an action under it was taken or not. Nevertheless, we understand . That the Chief Election Commissioner has already undertaken the action under section 8-A against the petitioners and has issued show-cause notices to them. The National Steel Mill's case is not helpful to the respondents as in that case no action was taken against the petitioner and on the satisfaction of the Supreme Court that a letter shown by the petitioner that a notification was likely to be issued by the Government, was not accepted sufficient to issue a writ.
That case is distinguishable on facts and well as on legal aspect.
13. Next it was argued that the petitioners by their participation in the election and the meeting held under the chairmanship of the Prime Minister of Pakistan on April 17, have acquiesced their rights, as such, they are not eligible to challenge the impugned provisions. The contention was supported by reference to M. Suleman v. S. Zahid Hussain Qadri (2) and Malik Muhammad Din v. Babu Fazal Karim and others (3). In M. Suleman's case, the petitioner having knowledge of the irregularity in delimitation, participated in the election of the Local Council, fought in the election of Chairman and Vice Chairman and on his failure to suceed, he challenged the election of his opponent on the ground of irregularity in the delimitation. In a short judgment, the petition was dismissed as according to the learned Judge, the petitioner had not come with clean hands. In M lik Muhammad Din's case, an identical situation cropped up as the petitioner failed to object to the irregularity attaching to the candidature of the respondent at the relevant time. There was no mention of the objection during the proceedings of the election and it was only after the petitioner had failed to take benefit of the irregularity that he challenged the same in a writ petition. Therefore keeping in view the conduct of the petitioner in that case, he was refused relief by the Court. The facts of the aforesaid cases are quite distinguishable from the facts of the present case as here the election campaign commenced right from the announcement of the schedule of general elections in Pakistan. Despite delay in the announcement of the schedule of the elections here, the parties, of their own, decided the candidature of their nominees and informed them accordingly. This so as the time between the announcement of the schedule and filing of the nomination papers was just a week. When the election campaign was at its peak, the impugned legislation was enforced and despite the petitioners having very little opportunity to react against the impugned legislation, they did so, in consequence of which a meeting was organized under the chairmanship of the Prime Minister of Pakistan. It is clear from the press clippings that Sultan Mahmood Chaudhry was not satisfied with the result of the meeting and he continued to protest against the impugned legislation. May be that Major General (Retired) Muhammad Hayat was partly satisfied with the impugned legislation on account of legislation of section 6-A, but the
(1) 1968 SCMR 317 (2) 1980 CLC 783
(3) PLD 1968 Lah. 544 fact remains that even if Mr. Hayat is refused the requisite relief in the light of the principle laid down in the aforesaid authorities, even then the objection of waiver cannot be applied against rest of the petitioners.
14.Mr. S. M. Zafar refuted the allegation of waiver and contended that there was no waiver against a statute and particularly against the Constitution. We fully agree with Mr. S. M. Zaffar that waiver is not, allowed to operate against a statute. In Fazalul Qadir Chowdhry's case (1) in the concluding part of the judgment, where dealing with the preliminary objection, late Mr. Justice Hamood-ur- Rahman made the following observations : "In any event, on questions relating to the constitutionality of actions, the ground of laches cannot prevail, for there can be no estoppel against the Constitution and an act which is unconstiutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act."
15. In Ikrain Bus Service's case (2), it was held that there was no estoppel against a statute.
13. Next it was contended that the Election Commissioner was the competent authority to lock into the validity of the impugned legislation. In support of the cantention, reference was made to Ghias- ul-Haq's case (3). The contention was opposed by Mr. S. M. Zaffar. It was argued that the High Court alone was competent to resolve the controversy as the Chief Election Commissioner was not vested with jurisdiction to look into the vires of the impugned legislation.
16. It is undeniable that the Chief Election Commissioner is not 1D Court. In Fazlul Quader Chowdhhry's case (4), it was observed "The Chief Election Commissioner is not a Court and it would obviously be inapt for an issue of constitutional importance to be referred to him for decision."
15. The Azad Jammu and Kashmir Interim Constitution Act, 1974 draws a definite line between the domain of legislature, executive and judiciary. It describes the limitations of each organ and any transgression E or attempt of transgression beyond the horizon of prescribed line of control, renders the action a nullity. Section 4 of the Constitution deals with the Fundamental Rights guaranteed therein. Subsection (1) unequivocally declares that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void. Subsection (2) declares that no law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this subsection shall, to the extent of such contravention, be void. The legislature is though competent to make laws within the sphere allocated to it yet it is restricted by, the aforesaid provisions from making any law which takes away or abridges the Fundamental Rights to the extent of its inconsistency or contravention of those rights. Thus, on one hand, the laws already made by the legistature are subjected to scrutiny and any law or its provisions found inconsistent with the rights conferred by the constitution, are declared void to the extent of inconsistency and for future, the legislature
(1) PLD 1963 SC 486 (2) PLD 1963 SC 564
(3) PLD 1980 SC (A J & K) 5 (4) PLD 1963 SC 483
(I) PLD 1979 SC (A J & K) 139 (2) PLD 1983 SC (A J & K) 95 is restrained from legislating laws which are in conflict with the basic rights. It is crystal clear, that High Court, under section 44 (2) (c) is conferred with jurisdiction to examine the laws made by the legislature to test their' conformity with the constitution. Clause (c) of subsection (2) of section 441 of the constitution reads as under :- "(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law-
(a) . .
(b) . .
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power of performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act."
The High Court is enjoined upon the duty to enforce the Fundamental Rights guaranteed by the Constitution. Therefore, whenever an aggrieved person invokes the jurisdiction of the High Court and the High Court is satisfied that no other adequate remedy in law is available to such aggrieved person, it is supposed to promptly act to redress the grievance by enforcing the fundamental rights. We, therefore, repel the contention of Mr. Qayum Malik.
20. In Ghias-ul-Haq's case the vires of the Civil Servants (Efficiency and Discipline) Rules were challenged along with the order affecting the terms and conditions of service of the petitioners. In that case, the learned Chief Justice of the Supreme Court, who recorded the judgment, was of the view that the Service Tribunal was vested with jurisdiction to examine the matters relating to civil service and in that context, it could also examine the vices. This view, however, was not in conformity with two other judgments of the Azad Jammu and Kashmir Supreme Court recorded in the case of Kashmir Timber Corporation (1) and in the case of Sardar Muhammad Abdul Qayurn Khan (2). The learned Chief Justice Chaudhry Rahim Dad Khan, who laid down the dictum in Ghias- ul-Haq's case, observed in Kashmir Timber Corporation's case at page 1b6 "The Legislature has powers expressly limited by the Interim Constitution Act, 1974, which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. The Court, when a question arises whether the prescribed limits have been exceeded, must, of necessity.
Determine that question, and the only way it can properly do so is by looking to the terms of the Constitution by which affirmatively, the Legislative powers were created, and by which, negatively, they are restricted. If the impugned Act is within the legislative competence of the Assembly and it violates, no express condition or restriction by which that power is limited, it will not be for the Court to inquire any further. But if the Act violates any constitutional restriction or limitation, it is invalid, and the Court being the protector and the custodian of Constitution is under an obligation to strike it down. This is especially true as regards the 'Fundamental Rights' as to which the superior Courts have been assigned the role of a sentinel on the qui vive."
21. In Sardar Muhammad Abdul Qayum Khan's case the learned Acting Chief Justice (Raja Muhammad Khurshid Khan) who spoke for the Court, observed at page 115 : "In Azad Kasmir, now-a-days in the absence of Assembly, the opinion of a single person, i. e. The President/Chief Executive Azad Kashmir prevails and, therefore, it becomes all the more necessary for the Courts to be at guard to see that the authority does not transgress the limits and legislation made by such an autority encroaches not upon the rights of the citizens specially fundamental rights which have been enshrined in the Constitution Act, 1974. The opinion of such an authority to prevail against fundamental rights of the citizens over whom the authority is to exercise executive responsibility is not recognized by the Constitution.
In view of the state of law, the Courts, when a question arises, must be satisfied about the reasonableness of the law and the Courts, it should be remembered, cannot regard themselves as satisfied that the citizens' freedom has been subjected to a reasonable restriction unless it is established to their satisfaction that not only the grounds of the restriction are reasonable in themselves but they have been applied reasonably as required by the Constitution. The restriction should be consistent with justice and reason and it should be seen as to whether the condition for its application is established. All these facts must have a judicial review."
In that case while examining the proposition of penalty for misconduct under the Disqualification Ordinance, the learned Acting Chief Justice reviewed the scope of the penalty placing restriction upon a person not to participate directly or indirectly in any political activity, as a reasonable restriction, as stipulated under subsection (6) and subsection (7) of section 4 of the Constitution Act, and concluded that the law of disqualification, to the extent of its provisions imposing a penalty under section 7, subsection (5), was ultra vires of the Constitution and, as such, void.
Subsection (5) of section 7, of the Disqualification Ordinance provided that if a Disqualification Tribunal found a person guilty of misconduct, he shall stand disqualified for a period of seven years from being elected or chosen as a member of the Assembly or the Council and shall not, with effect from the date of such finding, participate, in any manner whatsoever, directly or indirectly, in any political activity, closed door or otherwise, until the aforesaid period has elapsed. This suggests that it is only the domain of the superior Judiciary to judicially review the scope of ultra vires of a subordinate legislations, particularly when it infringes a fundamental right. In an identical situation in Sardar Muhammad Yasin's case (1) Full Bench of this Court examined the reasonableness of the restriction placed on the, exercise of right of freedom of assembly and freedom of speech and o reaching the conclusion that the provisions of section 8(1) of the Disqualification Ordinance were ultra vires of the Fundamental Rights, struck them down.
21. Mr. S. M. Zaffar, in support of his contention, invited our attention to Devilal's case (2) and Kochunni's case (3) and contended that this,
(1) PLD 1979 Azad J & K 1 (2) AIR 1965 SC 1150
(3) AIR 1959 SC 725 ' Court alone was competent to examine the ultra vires of the impugned legislation. Basu, on the Constitutional Law of India, at page 17, described :- '`Constitution expressly confers upon the Courts the powers of judicial review, and, as regards Fundamental Rights, the Court has been, assigned the role of a sentinal on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute."
' In Nasrullah Khans case (1), it was laid down that where the petitioner asks for enforcement of a fundamental right conferred by the Constitution, adequate relief can be granted by the. High Court alone.
The aforemade discussion in the light of the authorities referred above, lands to the conclusion that this Court alone is conferred with authority to enforce the fundamental rights and, by doing so, has to grant adequate relief to the aggrieved persons.
22. As we have disposed of the preliminary objections, we now resume discussion on major part of the proposition raised in the petition. Right 7 postulates that every State Subject has a right to form association or unions subject to any reasonable restrictions imposed by Law in the interest or morality or public order and that no person or political party in Azad Jammu and Kashmir shall propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State's accession to Pakistan. It need not be dilated that the right to form an association] obviously includes the right to form a political party. The word `form invites attention to appreciate the scope and functioning of an association! As contemplated by the provisions of Fundamental Right 7.
Basu, on Constitutional Law of India, at pp. 50 and 51, described :- "The word 'form' includes not only the right to start an association but also to continue it, or to refuse t,, be a member of an association, if he so desires. It also includes the right that the composition of a society shall not be as altered by law as to introduce members other than those who voluntarily joined to form the society. Nor can the Government impose such a condition as compels the members to withdraw their membership."
21.Mr. S. M. Zaffar, the learned counsel for the petitioners emphasised that the words "to form an association" include the right to continue as such and any restriction, limitation or condition which is tentamount to its discontinuance of suspension of the activity, or the process of formation of political opinion, is negation of the basic right. He also invited out attention to V. G. Row's case (2) and V. N. Shukla's Constitution of India, page 74. In V. G. Row's case Mr. Justice Rajamannar C. J.
Was of the view that the word "form" must refer not only to the initial commencement of the association' but also to the continuance of the association at such. He referred to Article 19(1)(c) of the Constitution of India, which is analogous to the provisions of Fundamental Right I -f our Constitution, and held that the right of association presupposes organisation and a relation of some permanence between those persons and the word "form" therefore must refer not only to the initial commencement of the association but also to the continuance of the association as such. In
(1) PLD 1965 Lah. 642 (2) A 1 R 1951 Mad, 147 V. N. Shukla's Constitution of India, at p. 74, it is described that the Constitution declares that all citizens shall have the freedom to form associations or union and, obviously, the right to form an association includes the right to continue it. It is further stated that the right to an association also implies that the persons forming an ass ciation, have the right to be associated with only those whom they voluntarily admit in the association. This right can be effective only if it is held to include within the right to continue the association with the composition and voluntarily agreed upon by the persons forming the association. Thus the right to form association includes the right to its continuance. In Damyanti v. Union of India (1), it was observed that the right to form an association can be effective only if it is held to include within it the right to continue the association with its composition as voluntarily agreed upon by the persons forming the association. Thus, the right to form an association includes the right of its continuance and any laws altering the composition of the association compulsorily will be an abridgment of the right to form an association. In the well- known case of Maulana Mandoodi (2), Mr. Justice B. Z. Kaikaus, while dealing with the definition of the word "form" observed ; at p. 764 :- `But there is another aspect of the matter which it appears to me is conclusive. Every person has now the right of formation of associations. This right can be exercised subject only to reasonable restrictions. The members of the Jamaat-i-Islami can contend that now they have the right to form an association or to carry on the activities of an association and that this present right cannot be limited by any order that may have been passed in the past. When Fundamental rights are granted to citizens to do a particular act not only all legislation that prevents such action disappears but all orders in particular cases placing any restriction on the exercise of the act must also be wiped out. Article 7 which grants the fundamental right to form associations does not contain any exception in respect of a case where already an order taking away such a right has been passed."
24. It is quite evident from the discussion that the word "form" doe not confine only to the formation of an association at a particular time but it implies that the association, as a matter of right shall continue its activates and propagation of political opinion without any restriction resulting in suspension or discontinuance of its activities even for a remote period. In other words, an act or omission' resulting in suspension or discontinuance of the functioning of an association is directly hit by the provisions of Right 7. Therefore, no legislation or order can be passed which may restrict, suspend or kill the activities of an association (political party). This is, of course, subject to reasonable restrictions in the interest of morality or public order.
25. Next, it is relevant to examine the purpose and object of forming a political party, particularly in the light of the provisions of Fundamental Right 7. The expression "political party" has been defined under section 2(d) of the Ordinance as under :- " 'Political party' includes a group or combination of the persons
(1) AIR 1971 SC 966 (2) PLD 1965 SC 673 which are operating for the purpose of propagating any political opinion or indulging in any other political activity."
The use of the word "includes" suggests that the definition described by the legislature is not exhaustive and here, for the purposes of the Ordinance, it is confined to :
(i) propagating any political opinion ; or
(ii) indulging in any other political activities.
' Before examining the scope of the expression "propagating any political opinion" or "indulging in any other political activity", it will be useful to see as to what political parties are, how they are organised and with what objective. In Words and Phrases, Volume 32 by West Publishing Company, the expression "political party" is defined as :- "A political party is a voluntary association of voters who are desirous of promoting a common political end, or carrying out a certain line of public policy. Schafer V. Whipple 55, pp. 180, 181, 25 Colo 400."
A political party" is an association of voters believing in certain principles of Government, formed to urge the adoption and execution of such principles in Governmental affairs through officers of like beliefs, and as rivals of popular favour they strive at general elections for the control of the agencies of the Government as a means of providing a course for the Government in accordance with their political principles and the administration of those agencies by their own adherents."
Encyclopaedia Britannica describes the expression "Political Parties" as :- "Political parties are group organized for the purpose of achieving and exercising power within a political system. They originated in their modern form in Europe and the United States in the 19th century, along with the electoral and parliamentary system whose development is reflected in their own evolution. The term 'party' has since come to be applied to all organized groups seeking political powers, whether by democratic elections or by resolution. p.
677.
Mr. Justice A. R. Cornelius, C. J. In Maulana Maudoodi's case observed :- "The ordinary conception of a political party includes a right within' the framework of the Constitution to exert itself through its following and organisation and being all available channels of mass communication, to propagate its views in relation to whole complex of the administrative machine including the legislatures, in respect of Q matters which appeared to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself."
' Burke in "Thoughts on the Causes of the Present Discontents", described :- "Political party is a body of men united for promoting the national interest on some particular principles in which they ate all agreed."
From the above, it reflects that political parties are primarily engaged in promoting common political end and to achieve that, they strive at general elections for the control of the Government as a means of providing a course to achieve their political principles. In popular term, political parties generally seek political powers by democratic methods to enforce their own political phillosophies among the electorates. In brief, the common function among the political parties throughout the world is to exert to secure political power in order to form a Government or to function as opposition.
26. Historically, therefore, political parties are an old affair. They are inevitable psychologically.
According to James Madison, the most common source of parties has been the "various unequal distributions of property". The "haves" and the "have-nots" tend to form distinct political groups.
Immediate cause for modern political parties is the interest in properties, for instance, a landed interest, a manufacturing interest, a mercantile interest with many lesser interests tend to divide people into different parties actuated by their own feelings and sentiments. But in the general sense, parties confront each other by virtue of their differences in political philosophies. In nutshell, political parties supply a motive power in governmental organization in all democratic states.
27. The analysis of the genesis of political parties and their establishment leads to the inference that elections to local bodies, Legislative Assembly or the Council are a means and not an end in itself. Therefore, when a political party participates in an election, it does not mean that the participation in the election is an end in itself. Here, in the present case, the fact that political parties participated in the election and captured certain seats and now by operation of section 6- A, they are to lose those seats, this losing of the seats in the Assembly, can by no stretch of imagination be called non-infringement of a fundamental right. Mr. Qayum Malik rightly pointed out that to contest election is not a fundamental right and to impose a disqualification restricting the right to contest election is not an infringement of a fundamental right. Nevertheless, the operation of section 8-A, which suspends the functioning and political activities of political parties, obviously, abridges the basic right. For, we have already seen that the right to form an association means the right of continuance of the association.
28. It was argued that deregistration of the political parties does not put an end to the functioning of the political parties as they can do so like other unregistered political parties but they would only be deprived of their right to contest elections. Mr. Qayum Malik invited our attention to Jamuna Prasad v. Lachhi Ram (1). For it is already held that use of the expression "to form association" includes not only to organise or start as association (political party) but to continue it as such. This obviously suggests that a political party formed to carry out and execute its cherished political ideology and programme is vested with basic right to continue its activities consistently without break. And in the words of Mr. Justice Cornelious, political party has a right to exert itself using all available channels of mass communication including the legislatures, even to the extent of proposing for amendment of the Constitution itself. The view of Mr. Malik is in complete negation of the very concept of Fundamental rights. The contention has no force and the authority cited by the learned counsel is not helpful to him as that was a case of corrupt and illegal practices in election.
In an election petition filed by an elector
(1) AIR 1954 SC 686 against the rival candidate, allegation of corrupt and illegal practice based on the publishing of a pamphlet carrying objectionable material against the rival candidate, was made. On upholding the objection, the Election Tribunal set aside the election of the returned candidate and declared his opponent successful. In appeal against the finding of the Election Tribunal, one of the objections raised by the appellant was that the provisions of sections 123(5) and 124(5) of the Representation of the People Act, 1951, were ultra vires of the fundamental rights. In answer to the objection the learned Judges made a remark that to stand as a candidate and contest election was not a common law right. It was a special right created by the statute and could only be exercised on the conditions laid down by the Statute. The proposition in the instant case is quite different and distinguishable. In the instant case, as stated earlier, the major attack is made against the provisions of section 8-A whose operation obliterates the organisations of the petitioners. The suggestion of Mr. Qayum Malik that by operation of section 8-A, the functioning of the political parties is disturbed only temporarily as they can reunite and form another association, is untenable. It finds no favour with us as once the set up of the political parties is finished, the provisions of the Constitution come into operation and that provides a complete answer to the objection of the learned counsel.
29. It is undeniable that fundamental right 7 is not an absolute right. It is susceptible to reasonable restrictions in the interest of morality' or public order. The expression "reasonable restriction" is pointer of the fact that the restriction likely to be imposed is to be sensible, fair and for a temporary period. It is to be imposed to avert the evil emerged from misuse or abuse of the process in exercise of fundamental rights. It must be acknowledged that the fundamental rights, like sun, shine constantly and imposition of reasonable restrictions eclipse them temporarily. It is in this perspective of the proposition that we have to resolve the controversy relating to imposition of reasonable restrictions on fundamental rights.
30. It is by now a settled law of interpretation that the legislature imposing restriction on the fundamental right has to be construed from its substantive aspect as well as procedural aspect.
Likewise, it is to be examined objectively and not subjectively. This view finds support' from Dr. N. B.
Khare's case (1), in which Mr. Justice Kania, C. J. Laid down : "While reasonableness of the restriction has to be considered with regard to the exercise of a right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law I do not think by this interpretation of the scope and the ambit of the word "reasonable" as apply to the restriction on the exercise of right is in any way unjustifiably enlarged. It seems that narrow construction sought to be put on the expression to restrict Court's power to consider only the substantive law on the point, is not correct."
' Mr. Justice B. K. Mukherjee, J., in the same judgment observed that in deciding the reasonableness or otherwise of the restriction, it is not possible to formulate any effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the
(1) AIR 1950 SC 211 attending circumstances must be taken into consideration and one cannot dissociate from the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restriction imposed by a law may arise as much from the substantive part of the law as from its procedural portion.
' In Brajnandan Sharma v. The State of Bihar (1), it was held that Courts do not apply any subjective test to the reasonableness of the restriction. There can be an objective test of reasonableness and that is what the Court apply. They do not ask themselves whether they, as individuals, felt satisfied that the restrictions are reasonable. But what that fictitious individual "the reasonable man", that is to say, the normal average man, regards them as reasonable. This is a well recognised legal means of examining the question of reasonabless and it is essentially an objective.
' In V. G. Row's case (2) Mr. Justice Patanjali Sastri, C. J. Laid down the following test to determine the reasonableness of the restrictions : "The test of reasonableness wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict."
' In the celebrated case of Jamaat-e-Islami, the question of reasonableness was reviewed by all the eminent Judges and Mr. Justice Fazle-e-Akbar, while relying on the test of reasonableness of restrictions enunciated in V. G. Row's case, added to it the following observations at page 744 : "I shall only add that the above is not exhaustive and the Court while testing reasonableness may also consider the precise nature of the interest that has been adversely affected the reasons for doing it, the manner in which it has been done, the procedure that was followed, the balance of hurt complained of and the good accomplished. These are some of the considerations that must enter the judicial judgment."
' From Azad Kashmir jurisdiction the leading case we have on the point is the case of Sardar Muhammad Abdul Qayum Khan, the learned Acting Chief Justice of the Supreme Court (Raja Muhammad Khurshid Khan) while examining the propriety of the provisions of misconduct, as provided in the Disqualification Ordinance, listed the rules to test reasonableness of restrictions imposed on the fundamental right. The observation is quoted as under :- "This much, however, appears from decided cases that the Courts, both in this country and in other foreign jurisdiction, have treated a restriction as unreasonable if the restriction is for an indefinite or unlimited period of disproportionate to the mischief sought to be prevented or if the law imposing the restriction has not provided any safeguard at all against arbitrary exercise of power. We are, however, not prepared to go to the extent of saying that if a law
(1) AIR 1950 Pat. 322 (2) AIR 1952 SC 196 merely confers an unfettered discretion, then the law must not necessarily be bad, because at times situations may arise when power must be vested in some authority to take immediate steps to prevent acts fraught with imminent danger, even though such prevention encroaches upon the fundamental rights guaranteed to citizens by the Constitution of the country. But in those cases too, the reasonableness of the steps taken would be dependent upon the circumstances which necessitate taking of such drastic action having due respect to the duration for which it remains operative. If the circumstances do not demand such action or the action is disproportionate to the mischief to be prevented or it is disproportionate to the need of the time and can be exercised without any check, then the restriction will certainly be unreasonable."
31. It is evident from the leading authorities noted above that no hard and fast rule is framed to test the reasonableness of restrictions imposed on fundamental rights and all that can be considered by the Court is to apply its mind to the nature of the right alleged to have been infringed, the underlying purpose of restriction imposed, the extent and urgency of the evil sought to be remedied, the disproportion of the imposition of restriction, the prevailing conditions at the time, the precise nature of the interest adversely affected, the reasons for enforcing the restrictions, the manner in which the restriction was enforced, the procedure that was followed and the balance of hurt complained of and the good accomplished.
32. Mr. S. M. Zaffar emphasised that the impugned restriction does not fall within the purview of expression "in the interest o. Morality or public order". The answer to the objection given by Mr. Malik was that section 8-A was enforced in the interest of public order, in order to reduce the number of political parties functioning in Azad Jammu and Kashmir. As a reference is made to the expression "public order", it is relevant to examine the meaning and scope of the expression as suggested by the learned counsel for the parties.
33. The expression "public order" is synonymous with public pumice safety and tranquility, as described by Basu in Constitutional Law of) India at page 45. An identical opinion was expressed in PLD 1957 Lah. 213, wherein it was held that the expression was not defined anywhere but danger to human life, safety and disturbance of public tranquility fall A within the purview of public order. In D.
K. Ghosh's case (1), the expression "public order" was described as :- "The words "public order" must have same meaning in both clauses (2) and (4) of Article 19. In clause (2) public order is virtually synonymous with public peace, safety and tranquillity. The connotation of the said words cannot be any wider in clause (4). A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far fetched or unreal connection between the restriction and the public order would not fall within the purview of expression "in the interests of public order."
31. The ordinary meaning of the expression "public order" and n0 meaning it received in various cases, listed above, clearly suggests thatr
(1) AIR 1963 SC 812 reference to expression "public order" manifests its reference to public peace, safety and tranquility. Mr. Zaffar contended that when expression is used in relation to a fundamental right, it should be construed strictly to ascertain its relationship and link directly to "public order" and indirect or far fetched connection between the restriction and public order should not be allowed to prevail. The argument was built up in the light of D. K. Ghosh, as in that case too, the learned Judges observed that a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far fetched or unreal connection between the restriction and public order would not fall within the purview of expression "in the interests of public order". Mr. Malik, on the other hand, contended that expression "in the interests" is not to be construed in narrow sense as it manifests a wider purview bringing in its scope any matter even indirectly or impliedly connected thereto. In support of his contention, reference was made to Ramji La! Modi v. The State of U. P. (1), Virendra v. State of Punjab
(2) and Debi Soren and others v.. State (3). In these cases, the expressions "in the interests of public order" were given wider meaning and distinction was made between the expression "in the interests of public order" and "in the maintenance of public order". In the first case AIR 1957 SC 620 the editor of the monthly magazine was convicted, for publishing an objectionable article, under section 153-A and 295-A of the Indian Penal Code. In appeal before the High Court, an objection was raised that the provisions of the Penal Code which prohibited the publication of impugned article in the newspaper, was inconsistent with the fundamental right of freedom of speech and expression. The learned Judges in the Supreme Court repelled the contention, as according to them the printed matters infringed the penal provisions and such provisions were considered in the interests of public order. Likewise, in Virendra's case, where the provisions of section 2(1) of the Punjab Act, 1956 were challenged as ultra vires to the right of freedom of speech and expression, the learned Judges on examining the circumstances under which the law was enforced, urgency and necessity of evil sought to be remedied, concluded that the provisions were covered by the expression "in the interests of public order" as such were reasonable restrictions within the meaning of fundamental right listed in Articles 19(2) and 19(6). As against this, Mr. Zaffar cited an Indian authority, Sakai Papers and others v. Union of India (4), in which the Court examined the vires of the provisions of the Price and Page Order, 1960, enforced to control the space of the paper as a whole and space for advertisement as well as price of the paper and concluded that the provisions were ultra vires to the fundamental right of freedom of speech and expression. The reasoning advanced was that under the impugned provisions, the space of newspaper was controlled, the price was raised, as such right of freedom of speech and expression was controlled by unreasonable restriction. This was so as to circulate one's opinion and view with complete freedom by recourse to available means of publication, was legitimate. The fixing of minimum price for number of pages which a newspaper was entitled to publish, was obviously not for ensuring a reasonable price to the buyers of the newspaper for expressly cutting down the volume of the circulation of some
(1) AIR 1957 SC 620 (2) AIR 1957 SC 896
(3) AIR 1954 Pat. 254 (4) AIR 1962 SC 305 newspaper by making the price so unattractively high for its readers to deter it from purchasing the paper. Again, the allocation of space of advertisement also directly affected the freedom of circulation. Thus, the provision was struck down. D. K. Ghosh's case contains the latest dictum of Supreme Court (India). It, therefore, prevails over the previous view expressed by Supreme Court (India) and Judges of Patna High Court. In the instant case, the intention for enforcing the impugned restriction, as disclosed in the written statements of the respondents as well as in the arguments, was to cut down the number of political parties, to introduce sound party system in the country. It was in the light of this objective that the impugned legislation was hurriedly introduced at the moment when the political parties were already settled in the election campaign.
35. Twentieth century is an era of emancipation. It bears a witness to both revolutionary and evolutionary freedom movements and an end to -Kingships, despotism and colonial rules, particularly in Afro-Asian countries, present day commonly termed as the third world.
Independence 35. Of Sub-continent, by itself is a landmark in the history of freedom move-C But it has to be placed in the category of evolutionary process. To be more exact and explicit, a democratic process. And who were the pioneers and skippers of the ship of self-rule and struggle for freedom ? Political parties and politicians. We ourselves are witness to a political miracle viz. The accomplishment of Pakistan. 'The glorious Muslim masses of the then sub-continent of India whose faith in and disciplined following of Quaid-e-Azam Muhammad Ali Jinnah, coupled with their monumental sacrifices, made Pakistan, once a mere dream, a reality', recorded Mr. M A. H.
Lspahani, on front page of his book "Quaid-e-Azam Jinnah, As I Knew Him". The State of Jammu and Kashmir, subjugated by Dogra despot, unfolds thousands told and untold stories of Muslim oppression and repression. The powers which rose to dethrone Dogra ruler, emerged in the style of political parties and politicians. The seat of authority occupied today by the Executive and the Legislature itself is directly the result of political struggle spreading over a century. While estimating the growth and development of political activities of political parties, one has to keep in mind, the past, present and future of the State and society, to which we all owe our duty. It is in this direction that the sacrifices were made by millions of our people. And freedom gives what? Self-respect, confidence and development of personalities in quintessence realm of civil liberties. Civil liberties, or popularly called Fundamental Rights, are the sweet fruit of freedom. The foremost and supreme gift of these rights is enshrined in proper quarters of the Constitution. As trustee or custodian of the Constitution, a duty is cast upon the Courts to keep watch on strict compliance with the provisions of the E Constitution and let it not be eroded in the name or interest of public, unless, of course, it was satisfied that imposition of restrictions served the cause of advancement of the purposes of the State or citizens.
36.Subsection (2) of Fundamental Right 7 imposes restriction on persons as well as political parties and prohibits them from propagating against taking part in activities prejudicial or detrimental to the ideology of the State's accession to Pakistan' This restriction also finds mention in sections 3 and 8 of the Political Parties Ordinance, It is nobody's case that section 8-A was enforced in this direction. Likewise, restriction imposed on the parties is not claimed to be in the interest of morality.
The only avenue open to the respondents is, and it has been alleged so by Mr. Malik, that restriction in the shape of section 8-A has been enforced in the interest of public order and the authorities from Indian jurisdiction were relied upon by him to justify that despite the fact that there was not proximate and direct cause to link the restrictions with public order, yet by stretching the meaning of the expression "in the interest of public order", the enforcement of restriction was justified. We have stated elsewhere that we do not agree with the view held by the learned Judges in those cases, as the facts and circumstances faced in those cases might have, in view of the learned Judges. Justified the broad and wider scope of F interpretation so much so to bring every thing on earth, under the sky within its scope. In our opinion, such an approach will result in complete denial of Fundamental Rights to the citizens. In those cases at least there were certain existing facts for which the appellants were held up. Contrarily, in the instant case, respondents' written statements carry no such instance which led them to enforce such drastic and harsh restrictions. No allegation of mediate or immediate cause of public order has been brought to our notice. In absence of any cause or circumstance, we are not supposed to be led by imaginary, conjectural and probable cause resting in some remote corner of their mind.
37. We have already pointed out the importance of political parties and their activities in our national life. This is also important to record that we are right in mid of our struggle for freedom of the State from Indian usurpation. Apart from the necessity and actual role of political patties, we are internationally committed to exercise the right of self-G determination. Right of self- determination is the life of Fundamental G Rights. Therefore, civil liberties available to the people and political organisations are to be maintained respectfully, at least till the attainment and exercise of the right of self-determination. This is another angle which deserves attention to denounce the restriction.
38. The number of political parties existing in the State is not a new phenomena. Barring Tehrik-e- Arnmal and a couple of others, these parties existed since long. Should it be presumed that Tehrik- e-Ammal alone alarmed the Government to react at an inopportune moment ? We don't ascribe that to the intention of the Legislature and if we are correct to believe it so, then there was no occasion to impose the restriction. Contrarily, if the emergence of Tehrik-e-Ammal caused real anxiety to place the curb, then it is a sad adventure in law. In that case, there is no choice except to declare the impugned law inconsistent with the Constitution, as such void.
39. The time and manner of imposition of the restriction deserves our equal attention. We understand that there was a complete understanding between the politicians and the Government that elections to the Assembly shall be held soon after the General Elections in Pakistan. In Pakistan, election schedule was announced in December last and elections took place in March. This is just to tell that political parties started their election campaign immediately on the announcement of election programme in Pakistan. In this respect, a meeting of the leaders with Minister for Kashmir Affairs also took place at Mangla, in January last where modalities of elections were told to be settled. Not only that the elections of the Assembly were delayed, candidates faced uncertainty throughout and even the relevant quarters were not sure of the timing of elections everyone was certain about one thing and it was that elections shall be held according to the scheme laid down in the Constitution and other laws. In view of this surety, political parties decided the lists of their candidates, made adjustments in their manifestoes, some of the parties made alliance to accomplish victory to form the Government. But to their utter surprise, there emerged section 8-A.
This shattered their entire planning and every party was pushed against dead wall. The resentment against odd hour legislation helped to convene a meeting under the chairmanship of the Prime Minister of Pakistan by virtue of his office of Chairman of the Jammu and Kashmir Council. In consequence of deep deliberations, in the words of worthy Chief Election Commissioner, section 6- A was introduced "to soften the apparent harshness" of the impugned law. We have recapitulated the events to show that enforcement of the restrictions 3 days after the declaration of election schedule and 4 to 6 days before filing of nomination papers, by no standard of legal norms can be called reasonable. By the time party-candidates had already covered their election campaign in the light of their party planning. To cover the distance of 40 constituencies spreading over Azad Kashmir and Pakistan, was beyond the means and control of any political party. Therefore, to achieve the requisite target of the percentage at national level and district level both, was humanly difficult. No reasonable person is believed to achieve the gigantic standard of altitude of the percentage. Then how it is fair to call the restrictions reasonable and in the interest of public order.
At least we are not convinced to believe so.
40. It was argued at length that cancellation of registration does not put an end to political activities as there are political parties which have no programme to contest elections. We do not find force in the argument as in our opinion participation in elections is a main step to enter the premises of Assembly and politicians enter the Assembly not for fun sake but with the motive and objective to occupy the seat of power to put in practice their cherished political programme, ideology and philosophy, by bringing change in the administration, system of law and even necessary amendments in the Constitution. This entire process covers the evolutionary mode of political activates and by popular name it is known as democration process. This is the true test of manifestation and demonstration of relationship of electors or masses with Government and the State. A restriction, limitation, prohibition and obstruction which delinks the electors from the Government is likely to be called by any other name except democracy. Those who do not reach the seat of power and sit on opposition benches, serve better cause of electors by their criticism and checks as that keeps the ruling party alert and vigilant Therefor:,, to deprive a party its representation in Assembly is tentamount to hamper/ and abridge the Fundamental Right. Such a legislation clearly violates the Constitution.
41. The position boils down to this that by operation of the provisions of section 8-A, ten out of forty members of the Assembly shall be unseated and two political parties shall stand deprived of their life K and liberty. From practical aspect, the 'situation with which we are K faced, does not allow to hold the restrictions reasonable particularly when political parties are allowed opportunity of direct approach to .The electors after a gap of eight years.
42. The impugned provision is not shown to rest on any rationale for imposing total restriction to secure l2t per cent. Of the aggregate votes as well as 5 per cent from each District. We were not apprised of any rationale for imposing such restriction. The proportionate representation system prevailing in various European and other countries was examined by us with the assistance of Mr. S. M. Zaffar and the threshold we were provided by the learned counsel, suggested that only single condition of securing certain percentage of votes at national level prevailed in all those countries.
This percentage varies from 0r67 to 5 per cent in the following countries : {{TABLE}} Country Threshold Page 1, West Germany.
2. Sweden
3. Denmark.
4. Finland
5. Norway.
6. Netherlands.
7. Israel 5 %of total national vote or victory in at least three Wahlkreis (consti- tuencies). 38 (Sometims this threshold is also waived.
22 Parties that obtain less than 4% of the national vote are excluded from Proportional Representation.
Such a party will gain no seats at all unless it surpass a constituency threshold of 12%. 132-33 Either 2 % of the national vote, or won at least and constituency seat or has achieved as many votes as the average number of votes cast per constituency seats within at least two of the three larger regions. 132-33 No threshold. 132-33 No threshold 132-33.
0.67 % of the votes cast. 151 1% 15 {{TABLE}} ' In Italy, Belgium, Luxembourg, Japan etc. There appears to be no visible threshold.
' In none of the other countries having the plurality systems eg. U. K. Etc. There is a threshold.
Note.-Pages are from the Book titled "Democrary and Elections" First Edition by Vernon Bogdanor & David Butler.
The illustration of threshold listed above, even if it is accepted that the restriction under consideration can legally be enforced, leads to the conclusion that the impugned restrictions are drastic and harsh. We do not agree with Mr. Malik, to hold that we should not look at the standard of proportionate representation prevailing in other countries and we should confine to our own conditions. Our reason is that firstly, in our country there was no popular demand of political parties or public to introduce a system unfamiliar with the political systems, prevailing in the country.
Moreover there was no urgency at national level to justify the enforcement of such system. On the other hand, if it was deemed in the interests of nation to enforce a restriction in the shape of proportionate representation, it should have been done with the consent of the political parties but much earlier than the announcement of the election schedule. Failure to do so has rendered the impugned legislation unreasonable.
43. It is accepted that the constituencies for the election of the Assembly are spread, in addition to Azad Kashmir, throughout Pakistan. These constituencies are divided into four Districts of Azad Kashmir and two Districts representing Jammu Province and others and Kashmir Valley spreading through territory of Pakistan. Keeping in view the time when the impugned leislation was enforced, the political parties and electorates were actually taken by surprise and as a result of resentment and surprise, a meeting was convened and section 6-A was introduced to minimise the harshness of inaptitude legislation and in the words of the Chief Election Commissioner, to soften the apparent harshness of section 8.A. None of the political parties was in a position to readjust to the conditions created by the impugned legislation. Though it is said that the impugned provisions were enforced to introduce a sound political system in the country by reducing the number of the parties, yet there M was every likelihood that failure of the four parties contesting the elections, to secure 5 percent valid votes of the total votes cast in each District would have wiped out all of them as it has been done in the case of two of them.
44. Another unreasonable aspect of the impugned restriction is that it provides no safeguard to a political party which captured 22 or above seats out of forty seats but at the same time it failed to secure 5 percent votes in one District out of six Districts. This may happen in the case of N any District including Kashmir Valley or Jammu Province and others. N In such an alarming situation, on acting upon the impugned legislation, the Chief Election Commissioner could not have .Even saved the party having obtained majority seats. How such provisions are considered conducive to the intended object of the legislature, we fail to understand.
45. From the procedural point of view, the impugned provisions of section 8-A are equally a bad law. It provides no procedure, mode on its application and remedy of appeal. It fails even to provide an opportunity of hearing to the aggrieved party. Thus, it was even against the principle `audi aileron' partem'. It gave summary powers to the Chief Election Commissioner and left everything to him to act in any manner he likes. This view finds support from the fact that the Chief Election Commissioner notified the names of the petitioners and also provided them opportunity to elect the women candidates. It looks astonishing. When() petitioners failed to qualify as members of the Assembly, how they could elect women members of the Assembly. As the law provides no procedure and mode of its application, the Chief Election Commissioner is even free to allow the petitioners to participate in the election of the Speaker: and Prime Minister and occupy seats in the Assembly for any duration. The existence of the petitioners, in other words, is at the mercy of the Chief Election Commissioner. From this aspect as well, the provisions are not susceptible to their reasonable character.
46. It was argued that despite the fact that no provision was made) in law, opportunity of hearing was yet to be provided to the petitioners. There is no force in the argument as we have to see the law as it is and not the person who applies the law. For there can be presumption that an executive, official will always act in reasonable fashion. There may be presumption that he will act bona fide but that was altogether a different thing. The true test is not what is actually done under the impugned law but what the law enables to be done. If law enables orders to be passed which are unreasonable and inconsistent with the fundamental rights, then that cannot be called a law operating to impose reasonable restrictions.
47. The legislature has used the words "valid votes" in section 8-A. In absence of procedure, it is unknown as to what will be the test of determining the valid votes in order to hold that a political party secured the requisite percentage of the aggregate as well as in each District. For it is unknown that the Chief Election Commissioner who has to cancel the registration, himself, shall enter into an inquiry to determine the number of valid votes or shall rely on the report prepared by the Presiding Officers or shall leave it pending till decision of Election Tribunal if the elections of returned candidates of District are challenged through an election petition.
48. Section 5(6) lays down that a registered and party eligible under section 6(4) of the Ordinance, shall be permitted to participate in the elections. The impugned provisions operate only against the registered party failing to secure the requisite percentage and does not apply to the party participating in the elections by virtue of its eligibility under section 6(4) of the Ordinance. The discriminatory character of the provisions of section 8-A makes the position further anomalous by virtue of fundamenal right of equality before law.
49. Clause (xii) of the Election Ordinance has no direct bearing on the fundamental right but at the same time, it is in the nature of vicarious liability and also discriminatory in nature and is hit by the fundamental right of equality before law. The qualifications and disqualifications for a member of the Assembly listed in section 24(1) and (2) of the Constitution apply to a person in his individual capacity. The disqualification listed in clause (xii) is not attracted to a candidate contesting elections in his independent position but is attracted in the case of a political party. From another angle, this provision is not considered reasonable as it is well known that what a person may do legally alone, he may do that with the assistance and co-operation of his associates. On this premises, the disqualification postulated under clause (xii) not being consistent and uniform to the disqualification listed under the Constitution and Election Ordinance, is invalid. Law has to be harmonious and uniform. This is absent here. Mr. Malik contended that the legislature was competent to legislate qualifications and disqualifications for the election of the Assembly as provided under section 24(2) (f ) and reference was made to Mr. Ghaus Bakhsh Bazinjo's case (1) is not relevant to the proposition under consideration as in that case the learned Judges refused to issue writ to set aside the decision of Supreme Court recorded in N. A. P's case (2), for want of jurisdiction. However, it was observed that the legislature, under the Constitution of Pakistan, was vested with powers to legislate with respect to qualifications and disqualifications for members of the Assembly. There disqualifications for the members of the Assembly but this has to be done is no dispute that the legislature is free to legislate qualifications and in consistency with the scheme of the Constitutional law and not in an arbitrary manner. Be that as it may, as we have decided to strike down section 8-A for its being in contravention to Fundamental Right 7, in that
(1) PLD 1276 Lah. 1504 (2) PLD 1976 SC 144 ' case the provisions of clause (xii) shall become redundant. We, therefore, do not like to dilate on that part of the proposition.
50. Before concluding, it is relevant to answer the objection raised by Mr. Rafique Mahmood Khan, the learned Advocate-General. It was contended that the restrictions imposed under section 8-A, are reasonable, as such consistent with fundamental right and reference was made to Akhlaq Hussain's case (1) and Haider Automobiles v. Pakistan (2). We have exhaustively discussed the scope of reasonableness of restriction and the affect of its imposition in the instant case, therefore, we need not indulge in repetition. The fact of the matter is that once it is discovered that the restriction of securing requisite percentage of valid votes cast in the general f elections, is not compatible with the expression "in the interests of public order", it cannot be allowed to remain on statute. The authorities cited by the learned Advocate-General are not helpful as in those cases, the fundamental rights involved pertained to freedom of trade, business or profession. The exceptions applicable to the said rights are altogether different, having a wider scope. We do not dispute with the view expressed in those cases and confine our conclusion to the position that the reports cited by the learned Advocate-General have no comparison, by facts or law, with the present case. The contention is, therefore, repelled.
51. The result of our deliberations is that the provisions of section 8-Al are found drastic, harsh and inconsistent with fundamental right 7. Welt/ declare it invalid and void for being violative of the fundamental right of freedom of association, under the interim Constitution Act, 1974 and direct' the Government to withdraw it.
' SARDAR MUHAMMAD ASHRAF KHAN, J.-phis petition, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred to as Constitution) calls in question the constitutionality of section 8-A of the Azad Jammu and Kashmir Political Party Ordinance, 1985 (hereinafter referred to as Political Party Ordinance) and that of the clause (xii) of subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 (hereinafter referred to as Election Ordinance).
2. Briefly stated, the facts forming background to the filing of this writ petition are that under the Political Party Ordinance, every Political Party in existence at the time of the commencement of the said Ordinance as well as the one formed after such commencement is required to apply to the Chief Election Commissioner for registration within a specified period and a Political Party which has not been registered or the registration of which has been cancelled, is not eligible to participate in an election to a seat in the Assembly of the Azad Jammu and Kashmir (hereinafter referred to Assembly) or to Azad Jammu and Kashmir Council or to nominate or put up a candidate at any such election. The Election Ordinance provides for the conduct of election to the Assembly and for the matters connected therewith or accidental thereto and its section 5 prescribed the qualifications and disqualifications of a person to be elected or to be a member of the Assembly.
3. An announcement on the 6th of April, 1985 was made for holding election of the Assembly on the 15th of May, 1985 but only after three days of the said announcement i. e. On 9th of April, 1985 amendments
(1) PLD 1965 SC 527 (2) PLD 1969 SC 623 ' were made in the Political Party Ordinance and Election Ordinance by virtue of Azad Jammu and Kashmir Political Party (Amendment) Ordinance 1985 and Azad Jammu and Kashmir Legislative Assembly Election (Amendment) Ordinance (XIV of 1985) respectively, whereby under the former section 8(A) was added to the Political Party Ordinance while under the latter, subsection 2 of section 5 of the Election Ordinance was substituted by new subsection 2 which contained XII clauses.
4. Some of the Political Parties of the Azad Kashmir boycotted the election of the Assembly as a protest against the making of the aforesaid provisions in the Political Party and Election Ordinances, probably apprehending that they would not be able to secure the required percentage of votes in the election as contemplated under section 8(A) of the Political Parties Ordinance. However, the Azad Jammu and Kashmir Tareek-e-Amal Party and Azad Jammu and Kashmir Muslim Conference, petitioners, Nos. 1 and 2 contested the said election held on 15-5-1985 and their nominees, petitioner Nos. 3 to 12 were elected as Members to the Assembly.
5. Feeling aggrieved by the above provisions of section 8(A) of the Political Parties Ordinance and clause (xii) of subsection 2 of section 5 of the Election Ordinance, the petitioners have challenged the validity of the aforesaid provisions of the said Ordinances on the ground that they contravene the fundamental right of freedom of association guaranteed to a State Subject by section 4(4)(7) of the Constitution.
6. The respondents have contested this writ petition both on legal grounds as well as on merits by filing separate written statements. They, in their written statements have raised certain preliminary objections with regard to the non-maintainability of the writ petition on the grounds of the petitioners being not an aggrieved persons, the writ petition being barred by the principle of estoppel and being premature. Their further contentions are the impugned provisions of the Political Parties Ordinance and the Election Ordinance are perfectly valid pieces of legislation which do not in any way violate the fundamental right of freedom of the Association conferred by the Constitution on a State Subject. Before proceeding further, it appears necessary for the sake of reference, to reproduce section 8(A) of the Political Parties Ordinance and clause (xii) of subsection 2 of section 5 of the Election Ordinance which read as under respectively "8(A). The registration of a political Party shall be cancelled by the Commissioner, if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at a general election to the Assembly is less than twelve and half percent of the aggregate of the valid votes cast at the said election and less than five per cent. Of the aggregate of valid votes cast in each district."
' Section 5(2) (xii). He is elected as a nominee of a political party whose registration has been cancelled by the Commissioner as a result of operation of section 8(A) of Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985."
4. Mr. S. M. Zaffar, the learned counsel for the petitioners has assailed the impugned provisions of the aforesaid Ordinance on the following grounds :-
(I) That the impugned provisions of the Political Parties Ordinance and the Election Ordinance are ultra vices of the Constitution for being violative of the fundamental right to form an Association guaranteed to a State Subject by section 4(4)(7) of the Constitution (hereinafter referred to as Fundamental Right No, 7);
(2) That the fundamental right of freedom of an Association can only be taken away or abridged by imposing reasonable restrictions under law in the interest of 'morality' or 'public order' but the impugned provisions of section 8(A) are not relate able to and have no proximity with the 'public Order' or 'morality' ;
(3) The percentage of votes required to be secured in an election to the Assembly by a Political Party under the impugned section 8(A) of the Political Parties Ordinance are hard and Burdon- some and impose unreasonable restrictions on the right of freedom of Association as they have the effect of restraining the lawful activities of the Political Party ;
(4) That the impugned restrictions have been imposed after the announcement of the Schedule for the election without giving the Political Parties to make re-adjustment with the new situation for which reason, they are unreasonable from the point of view of procedure taking into consideration the manner in which they are imposed ;and
(5) That the impugned provisions of Political Parties Ordinance envisages the system of providing threshold which is only in vogue in the proportionate representation system and is alien to the direct voting system ;
8. In reply to the above contentions, Malik Muhammad Qayyum, the learned counsel for the respondents made the following submissions :-
(1) That the impugned provisions of the Ordinance under discussion are within the legislative competence of the President and do not contravene the fundamental right of freedom of Association conferred on a State Subject by the Constitution ;
(2) That the petitioners' writ petition is incompetent because they are not aggrieved persons as yet as no action has been taken against them by the Chief Election Commissioner under the impugned section 8(A) of the Political Parties Ordinance;
(3) That the petitioners are estopped from seeking relief asked for by them in the writ petition in as much as they had accepted the impugned provisions of the Political Part,es and Election Ordinances by participating in the election of the Assembly ;
(4) That the petitioners have an alternative remedy as they can challenge the validity of the impugned provisions of the Political Parties Ordinance before the Chief Election Commissioner who is empowered to go into the question of Constitutionality or otherwise of the said provisions ;
(5) That the impugned provisions have been made with a view to checking the mushroom growth of the Political Parties in the interest of the 'public order' and do not place any unreasonable restriction on the fundamental right of freedom of Association ;
(6) That the right to contest election is not a part of the fundamental right to form Association but is guaranteed by a statute and as such it can be taken away or whittled down by the statute ; and
(7) That the right of freedom of Association guaranteed to a citizen by the Constitution does not extend to the right of an Association formed in pursuant to said right to achieve its every objective unhindered.
9. First of all it is necessary to consider and decide the preliminary objections raised on behalf of the respondents to the maintainability of this writ petition. It is contended by the learned Counsel for the petitioners that as the Election; Commissioner has not as yet taken any ad' erne decision against the petitioners acting under the impugned provision ,is of the Political Parties Ordinance, they are not aggrieved persons with the result that they have no right to approach this Court in its writ jurisdiction. I find no substance in this contention. The petitioners have challenged the aforesaid impugned provisions as offending against the fundamental right of freedom of Association and as such the petitioners are aggrieved persons in the sense that the impugned provisions of the Political Parties Ordinance can adversely affect them if it is found in conflict with the fundamental right of freedom of Association as alleged by the petitioners, and allowed go unchallenged.
10. Similarly the objections with regard to the writ petition being unmaintainable on the basis of the principle of estoppel or waiver is devoid of any force in the circumstances of the case. It is a settled law that there is no estoppel against the statute and especially in this case there arises no such question in view of the fact that in this writ petition fundamental right of a State Subject has been alleged to have been infringed by the impugned provisions of the Ordinances under discussion. No citizen can be estopped to exercise his fundamental right secured to him by the Constitution on the ground that he has waived it by his conduct. A mere fact that the petitioners have contested election to the Assembly despite the existence of impugned provisions on the statute book, does not debar them from calling them in question on the ground of they being inconsistent with the fundamental right of freedom of Association. The ruling cited by the learned counsel for the respondents in support of his above preliminary objections such as PLD 1968 SC 371; 1975 SCMR 1 are not applicable to the present case whereas the cases cited by the learned counsel for the petitioners such as PLD 1975 Lah. 855, PLD 1983 SC 564 and PLD 1976 Azad J K 17 are quite relevant to the points in controversy and are to be relied upon. Therefore, the preliminary objections are repelled.
11. In view of the contentions raised by the parties in the writ petition, and written statements and by their Counsel during the course of arguments, the first and the foremost question that requires determination is as to whether or not the right of freedom of Association guaranteed to a State Subject by the Constitution also includes in it the right of a Political Party formed as a group of persons in exercise of their said fundamental right to participate in an election to the Assembly and to put up or nominate its candidate to such an election.
12. In respect of the above issue, it was contended by the learned counsel for the petitioners that the definition of a Political Party as given in the Political Parties Ordinance is not exhaustive as it includes in its scope only some of the activities of a Political Party and thus in order to ascertain and determine the true scope and extent of its activities and objectives, one has to look into and consider the ordinary concept of the Political Party. According to him a Political Party has many fold objectives and the field of its activities is very vast and the most important activity is to participate in an election to an Assembly, to get its members elected and to form Government to achieve its goal. To substantiate his above contentions, he made reference to certain passages from two books namely 'Words and Phrases' by West Publishing Company and 'Encyclopaedia of Britanica' and also to an observation of Mr. Justice Cornelius C J in a case entitled Abul A'la Maudoodi v Government of West Pakistan (1) appearing at page 692 containing the definition of a political party. The definition of the political party appearing at page 511 of the book of 'Words and Phrases'
Vol. 32, as referred to by the Counsel for the petitioners, reads as under :- "A 'Political Party' is an association of voters, believing in certain principles of Government, formed to urge the adoption and execution of such principles in Governmental affairs through officers of like beliefs, and as rivals for popular favour they strive at general election for the control of the agencies of the Government as a means of providing a course for the Government in accordance with their political principles and the administration of those agencies by their own adherents."
13. As regards 'Encyclopaedia of Britanica' the learned Counsel for the petitioners quoted a passage from its page 680 under the heading `Parties and the Political Powers' which runs as follows :- "Parties and Political Power-Whether they are conservative or revolutionary, whether they are a union of notables or an organization of the masses. Whether they function in a pluralistic democracy or in a monolithic dictatorship, parties have one function in common ; they all participate to some extent in the exercise of political power, whether by forming a government or by exercising the function of opposition, a function that is often of crucial importance in the determination of national policy."
14.The observation of Mr. Justice Cornelius, C. J. Referred to by the learned Counsel for the petitioners and appearing at page 692 is to the following effect :- "The ordinary conception of a political patty includes right within the framework of the Constitution to exert itself throaty its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative Machine, including the Legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself."
15.After giving the ordinary concept of the Political Party, the learned Counsel for the petitioners in an effort to canvass his point that the fundamental right No, 7 relating to freedom of Association also embraces in its fold the right of a Political Party, to participate in an election to the Assembly contended that the right to form an Association also includes right to its continuance and for his above contentions, he
(1) PLD 1964 SC 673 ' sought support from AIR 1951 Mad. 147, AIR 1971 SC 966, PLD 1964 SC 763 and from a passage at pages 150 and 151 of Indian Constitution by Bassu. He further developed his point by contending that formation of a Political Party is complete only when it is allowed to do for which it is formed, get into the Legislative Assembly, to persue its policies, and if possible, to get into power and amend Constitution. But according to him the impugned section 8(A) of the Political Parties Ordinance has placed restraints on the lawful activities and the functioning of the Political Party by providing for the cancellation of its registration by the Election Commissioner in case it fails to secure 12i per cent of the aggregate of the valid votes cast at general election to the Assembly throughout Azad Jammu and Kashmir and Pakistan and 5 per cent of aggregate valid votes cast in each District. He further contended that as a result of the cancellation of the registration of a Political Party, it will not only be rendered ineligible to participate in an election to the seats to the Assembly or to put up or nominate a candidate to such an election under the Political Parties Ordinance but the member of the Assembly who has been elected as a nominee of such Political Party shall also be disqualified from being Member of the Assembly under Clause-XII of subsection 2 of section 5 of the Election Ordinance.
16. On the basis of the above contentions, the learned Counsel for the petitioners built up the argument that the impugned provisions of section 8(A) of the Political Parties Ordinance clearly constitute infringement of the fundamental right No, 7 inasmuch as they deprive the political party of its right to contest election to the Assembly which right is inherent in the fundamental right of freedom of Association.
17. In reply to the above contentions, the learned Counsel for the respondents has contended that the fundamental right of the State Subject to form an Association does not carry with it the right of the Political Party formed in exercise of the said right to contest election to the Assembly and as such the impugned section of the Political Parties Ordinance does not place any restraint on the fundamental right of freedom of Association. In elaboration of his above contention he submitted that the right to contest an election to the Assembly is quite separate and distinct from that of the right to form Association as fundamental right of freedom of Association is guaranteed by the Constitution while right to participate in an election of the Assembly is a creature of the statute. It is further contended by him that the right to form an Association does not extend to the right of the Association so formed to achieve its every objective. It was also contended by the learned Counsel for the respondents that a citizen has no right to contest election to the Assembly and thus the same cannot be claimed by the group of citizen forming an Association for the political purpose. It was further argued by the learned Counsel for the respondents that the political activities have many aspects and it is not possible to define them. To support his above contentions, he referred to PLD 1983 SC (A J K) 95, AIR 1962 SC 171, AIR 1954 SC 73, AIR 1971 SC 966, PLD 1966 Lah. 1504, AIR 1962 SC 263 and pages 384, 389 and 391 of the book entitled Indian Constitution by H. M. Seerval, Vol. I.
18. Availing the right to reply the learned Counsel for the petitioners contended that the Indian authorities cited by the learned Counsel for the respondents deal with the Trade Unions and therefore are not applicable to the present case and that the Political Party stands on a higher pedestal than the Trade Union and is recognized by the Clause-2.Of the fundamental right No, 7.
However, he contended, the Indian authorities cited by the learned Counsel for the respondents do not hold the field now in iiew of the principles laid down in AIR 1962 SC 305. He also referred to pages 115 and 116 of PLD 1983 SC (A J & K) 95 to contend that the restrictions on the political activities amount to violation of the fundamental right guaranteed under the Constitution wherein it has been observed at para. 30 (i) that the restriction flowing from the order of disqualification affects the right of the person of freedom of Assembly, freedom of speech and also bars participation of a person directly or indirectly in any political activities. He also referred to the observations of Justice S. A. Rehman at p. 737 in the PLD 1964 SC 673 which reads as under :- " It would be cold comfort indeed for the political party concerned to be told that though declared "unlawful", its collective personality is not dissolved and therefore as soon as the notification is withdrawn, it can re-start functioning without the necessity of reformation. So long as the notification is in force, the members of the Association cannot function at all under its auspices.
The position is analogous to that of civil death as compared to physical death under the 1962 Act and perhaps civil death may be much more painful than a physical one. One is reminded of the myth of Tantalus who was tortured by an ingenious contrivance that allowed water to rise to his lips but which did not permit him even to wet them before it went down, as he was incapable of the slightest movement. Theoretically, there may be a difference between such a situation and that of physical death but on the practical plans such a distinction would be illusory."
19. After giving my anxious and best considerations to the arguments addressed at the bar with regard to the unconstitutionality or otherwise of the impugned provisions of section 8 (A) of the Political Parties Ordinance and going through the relevant provisions of the Constitution and the aforesaid Ordinance, I have reached the conclusion that the impugned x provision of the Political Parties Ordinance do not in any way offend x against the fundamental right of a State Subject to form an Association guaranteed to him by the Constitution.
20. Before proceeding to give my reasons for the above conclusion, it appears pertinent, for the sake of reference, to reproduce the relevant provisions of section 4 (4) (7) of the Constitution guaranteeing right of freedom of association to a State Subject.
"4 (4) (7). Freedom of association.-(1) Subject to this Act, every State Subject shall have the right to form Association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order.
(2) No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State's accession to Pakistan ".
21.As would appear from the perusal of the provision relating to the freedom of association, every State Subject has been given right to form Association which right, of course, would also include the right to its continuance unless the same is taken away or abridged by the imposition of reasonable restrictions in the interest of morality and public order by the legislature. This fundamental right to form an association, in my view, cannot be stretched to such an extent as to include in its ambit even the right of association formed in pursuant thereto for political purposes to contest election to the Assembly and for that purpose nominates and put up its candidates for election to the seats of the said Assembly. To impute such an intention and meaning to the language or context of the fundamental right of freedom of association would be going too far and can only be done by ignoring and not adhering to well-known and established canons of interpretation and construction of a Statute that the meaning and intention of the legislature should be ascertained from the language of y the statute itself and the words used in the Statute or Constitution should be construed in their ordinary dictionary meaning, if no ambiguity arose in doing so.
22. It is, of course, true as contended by the learned Counsel for the petitioners that the provisions of the Constitution should not be interpreted in a narrow and pedestal sense but in a broad and liberal spirit but, in my view, this does not mean that the Court should be free to stretch or pervert the language of an enactment in the interest of any legal or constitutional theory. When the provisions of the fundamental right of freedom of association are considered in the light of principle of interpretation of Statute. I find myself unable to agree with the contentions of the learned Counsel for the petitioners that the aforesaid fundamental right also carries with it the right of a political party to participate in an election of the members of the Assembly.
23. The arguments of the learned counsel for the petitioners that it is the most important and principal objective of a political party to contest election to the legislature and get its member elected to it and to form Government is, of course, attractive and has its own appeal but in my opinion, such an objective. Is not so indispensable that without it an association of persons cannot claim to be a political party. Even if, it is assumed that the objective under consideration is integral and inseparable part of the concept of political party, still it does not mean that on this score alone a political party as its fundamental right is entitled to participate in an election to the Assembly.
24. The impugned provisions of the Political Parties Ordinance do not in any way impose any restriction on the formation of the political party or its continuance. It only says that the registration of a political party shall be cancelled by the Commissioner, if it fails to secure a certain percentage of the valid votes cast at the general election to the Assembly and in each District of the Azad Kashmir. There will be no prejudicial and adverse effect on the fundamental right of the citizen to form association if by the operation of the above impugned provisions the registration of a political party is cancelled. The arguments of the learned counsel for the petitioners that the provisions of the impugned section of the Political Parties Ordinance have had the effect of strangulating a political party and causing its civil death, has not B impressed me when the same is considered in the light of the provisions of B the Constitution guaranteeing fundamental right under discussion and that B of the Political Parties Ordinance. There can be no dispute that despite the cancellation of its registration a political party will not cease to be a political party but would continue to preserve its entity and function as such. The only mischief done by section 8 (A) of the Political Parties Ordinance is that a political party affected by it shall no more remain on the list of the registered political parties and shall lose the right to contest election to the Assembly or State Council and to nominate its candidates to any such election.
25. Apart from incurring the above disqualification, it will be free to indulge in all other political activities without any hindrance. The power to make a law relating to the election to an Assembly is given by section 22 (2) read with section 31 (e) of the Constitution. Section 22 (2) of the Constitution provides that the manner of the election of the members of the Assembly and the manner of filling casual vacancies, shall be such as may be prescribed and the prescribed needless to say, means prescribed by law and rules made thereunder while under the provisions of clause (b) of subsection 2 of section 31 of the Constitution, the Assembly have the powers to make laws with regard to election to the Assembly as this matter is not enumerated in the Council Legislative list.
Similarly section 24 (f ) of the Constitution empowers the Assembly to prescribe disqualifications of a person from being a member of the Assembly.
26. The right to participate in an election to the Assembly is conferred on a citizen by a Statute and is not available under any fundamental right secured to the citizens by the Constitution. This right being not the fundamental right of a citizen, cannot be claimed by the group or association of the citizens formed in exercise of their fundamental right to form an association or Unions. The Constitution has authorized the legislature to enact law pertaining to the election of Assembly and also laying down disqualifications of a person from being elected or from being member of the Assembly.
27. In view of the above legal position the Political Parties Ordinance has been competently made and promulgated and thus its provision barring a political party which has not been registered by the Election Commissioner or whose registration has been cancelled by him under the said Ordinance from participating in an election to a seat in the Assembly and to put up or nominate its candidates at such election are quite valid and so is the case with section 8 (A) of the said Ordinance which does not contravene the fundamental right of a State Subject to form c an association or Unions The fundamental right guaranteed by a c Constitution relates to all citizens irrespective of their age or sex and as such C it does not extend to a right which is not given to all citizens but is conferred on persons by a Statute. Since the right to contest an election to an Assembly is a creature of the statute and is also not unqualified, the same cannot be claimed to be a concomitant to fundamental right of a citizen to form an association. In this view of the matter, the impugned provisions of the Political Parties Ordinance are not opposed to the fundamental right No, 7.
28. The bare reading of the provisions of the Constitution conferring a right on a citizen to form an association and Unions would show that this right is not absolute and unfettered one but is subservient to and controlled by the other provisions of the Constitution. For the sake of clarity of the above observation, it appears necessary once again to reproduce the relevant portion of the provisions of the fundamental right headed 'freedom of association'. It reads :- ' Subject to this Act every State Subject shall have the right to form association or Unions, subject to reasonable restrictions imposed by law in the interest of morality or public order".
29. The commencing words of this provision, namely 'subject to this Act,' leave no manner of doubt that where some other provisions in the Constitution specifically provides for or deals with any matter, then such a matter will fall outside the purview of the fundamental right relating to the freedom of association and will be governed by such other provision in the Constitution: . In the context of the present case, it would meanly that the right of State Subject to form an association does not include in it as well his right to participate or contest an election to an Assembly which will be governed by the law enacted for the purpose. As said, earlier, the powers of enacting law pertaining to an election falls within the province of Assembly. The legislature has made laws in this respect which are known as Political Parties Ordinance and Election Ordinance. They govern the election to the Assembly. For the above reasons alone the impugned provisions of the aforesaid Ordinances are valid and are not opposed to the fundamental right of a State Subject to form an association, for, even assuming that the fundamental right No, 7 extends to tie right of a political party to participate in an election to the Assembly still this will not be available to it being subject to other provisions of the. Constitution.
30. The arguments of the learned Counsel for the petitioners that while determining the scope and extent of the activities of a political party, the ordinary concept of the Political Party is to be taken into consideration as its definition given in the Political Parties Ordinance is not complete and exhaustive His this contention, in my view, does not hold good in the context of the provisions of the Political Parties Ordinance. The said Ordinance defines the Political Party as follows :- "Political Party includes a group or combination of persons which are operating for the purpose of propagating any political opinion or indulging in an other political activity."
31.For the purpose of the decision of the point in issue presently in this case, the above definition is all embracing and exhaustive. The petitioners are claiming their right to contest election to the Assembly in the capacity of political party having been organized by the citizens in exercise of their right to form association guaranteed to them under the Constitution and as such the nature and scope of their activities will be determined in the light of the definition of the political party as given in the political parties Ordinance, and not by any other definition or meaning of the Political Party as expounded by the jurists of the other Countries as the Counsel for the petitioners wants us to do.
32.Thus in the light of definition of a political party given in the Political Parties Ordinance, here a political party shall be considered to be a group of persons formed for the purpose of propagating any political opinion or indulging in any other political activities. Section 8 (A) of the F Political Parties Ordinance does not, in my view, have the effect of limIrIng or circumscribing the scope, extent or sphere of a political party and as such it does not make any encroachment on the fundamental right of a citizen to form an association. The reference of the learned Counsel for the petitioners as to the definition and meaning of the political party, as given in the books such as 'Encyclopaedia of Britanica' and 'Words and Phrases' by West Publishing Company arc not very much relevant for our purposes. Even the definition and meaning assigned to a political party in the above reference do not conclusively go to prove that a political party whose manifesto does not include in its objective to contest election to a legislature and by capturing majority of its seats form Government, cannot be designated as political party.
33. The authorities cited by the learned Counsel for the respondents namely AIR 1962 SC 171 (para. 18), AIR 1962 SC 263, AIR 1954 SC 330, PLD 1966 Lah. 1504 and PLD 1983 SC (AJ&K) 95 in support of his contention that the right to form an association and Unions secured to the citizen by the Constitution does not include the right of an associa tion brought into existence in exercise of the said right to achieve its objectives and that the impugned provisions of the Political Parties Ordinance are not inconsistant with the fundamental right of the citizen to form an association are quite relevant to the point in controversy in this case and provide valuable guidance for the determination of the same. The principles of law enumerated therein fully lend support to my view that fundamental right No, 7 relating to freedom of association does not entitle a political party formed under the said right to participate in the election to the Assembly and as such the provisions of section 8 (A) of the Political Parties Ordinance are not invalid and unconstitutional on the ground of having been made in violation of the fundamental right guaranteed to the citizens under section 4 (4) (7) of the Constitution.
34. In AIR 1962 SC 171 the question involved was that whether the right to form association or Union also carried with it the concomitant right to achieve every object for which it is formed. It was observed that guaranteed right to form association does not include and imply that the fulfilment of every object of an association so formed is also protected right with the result that there is no constitutional guarantee that every association shall effectively achieve the purpose for which it was formed without interference by law except on the ground relevant to the preservation of public order of morality as set up in clause (c) of Article 19. It was thus held that even a liberal interpretation of sub-clause (c) of (d) (i) cannot lead to conclusion that the trade unions have guaranteed right to effective bargaining or to strike, either as a part of collective bargaining or otherwise. It was further laid down that as the stream can rise no more char) source, association of citizens cannot claim the right not open to citizens. In AIR 1962 SC 263 under the law impugned therein only recognized Union was allowed to function and the point involved for decision was as to whether the right to form association guaranteed under the Constitution also extends to the effective functioning of the association so as to enable it to achieve its object. The answer was returned in the negative and it was held that the Constitution does not imply or involve the right to form association to recognition also The point for determination in AIR 1954 SC 73 was some ..What close to point in issue in the present case. The impugned law therein required the maximum percentage of its membership for a Union for its eligibility for registration and in the case of its membership having fallen below the required minimum its registration was liable to be cancelled The vires of the said law were challenged on the ground of being in conflict with the fundamental right to form association but it was held that the impugned provision of law did not prohibit the petitioners of the said case to form association and it was not void as being opposed to the fundamental right of freedom of association.
35. In PLD 1983 SC (AJ&K) 95 an observation of the learned Chief Justice (Mr. Justice Raja Muhammad Khurshid Khan) at para. 65 of p. 129 is indicative of the legal position that a law barring the right to election to the Assembly is not hit by any of the fundamental rights. The observation is in the following words:- 'But on the other hand if the Ordinance providing disqualification which is mere domestic wall to bar entry in the elective body, it would not come within the mischief of the fundamental rights".
' This observation cannot be ignored by this Court. The provisions of section 8 (A) of the political parties Ordinance in substance have the effect of barring entry of a member of a Political Party coming within its mischief in the elective body. The observation made in A 1 R 1954 SC 686 and reproduced in PLD 1983 SC (AJ&K) 95 at its p. 124 also lend support to the observations of the learned Chief Justice and reproduced above.
36.The ruling in PLD 1976 Lah. 1504 is to the effect that the law contained in section 8, Political Parties Ordinance, 1962 deals merely with creation of a bar or disqualification for being or being elected member of Provincial or National Assembly. In this, it was further held that the Parliament being authorized under Constitution to enact laws laying down disqualifications for being elected or for being member of Parliament as well as to enact laws regarding elections to such assemblies, amending Ordinance (XIX of 1976) was quite within the legal competence of the legislature and cannot be taken exception to and is not in contravention of Art. 12 of the Constitution (1973).
37.The arguments advanced by the learned counsel for the petitioners for not relying on the above Indian authorities cited by the learned counsel for the respondents and mentioned in para. 18 of the judgment, have no force in them.
' In my view there cannot be maintained any distinction between the scope of the right to form an association and that of to form a Union as they stand on the same footing and the former right does not stand on higher level and has special status than the latter as contended by the learned Counsel for the petitioners. Each of the above right is not only provided in the same provision of the Constitution but also in the same sentence. Similarly the fact that the concept of political party is comparatively older than the concept of Trade Union, neither adds nor distract from the scope of the either of the aforesaid rights. Similarly the ruling given in AIR 1962 SC 305 neither in any way advance the case of the petitioners nor it, as contended by the Counsel for the petitioners, overrule the Indian authorities referred to by the Counsel for the respondents or dissent from them. The legislation the validity of which was called in question in the aforesaid case prescribed a price page schedule. Whereby price of the newspaper was fixed according to the number of its pages and it was contended that since it prescribed maximum number of pages for the particular price it amounts to abridgement of the right of the newspaper to freedom of expression guaranteed to a citizen under the Constitution. Since the impugned legislature directly dealt with the freedom of expression it was held that the right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinion and views with complete freedom and by resorting to every available means of publication. In the above view of the matter, the impugned act and order was held invalid as it placed unreasonable restrictions on the right to freedom of expression. Thus, as would appear in the said case the impugned Legislature directly curtailed the right to freedom to expression whereas no such question is involved in this case in which it is not even contended that the impugned provisions of the Political Parties Ordinance directly place restrictions on the exercise of the right to freedom of an association.
38. Similarly I am unable to find any relevancy of the observations made in PLD 83 SC (A J & K) 95 at pp. 115 and 116 and in PLD 1964 SC 673 at p. 737 and referred to by the learned Counsel for the petitioners in support of the pivotal point involved in this case whether the right to contest election is included in the right of a citizen to form an association. In the PLD 1923 SC (A J & K) 95, Disqualification Ordinance imposing restriction on freedom of assembly and freedom of speech was under challenge and it was ruled out that the said Ordinance is unconstitutional as it imposed unreasonable restrictions on the aforesaid fundamental rights. The question in respect of right of freedom of association was not at all even indirectly involved in the said case and rather an observation in the nature of obiter Dicta appearing at p. 124 of it and referred to in the earlier part of this judgment laid down that an Ordinance barring entry into the legislative body does not come within the mischief of any fundamental right. Likewise observation appearing in the PLD 1964 SC 673 at p. 737 and referred to by the learned Counsel for the petitioners were made in case where a political party was altogether barred which is not the case here.
39. In my judgment the above authorities have no bearing on the case we are dealing with. As regards the sentimental arguments advanced by the learned counsel for the petitioners that the impugned provisions of Political Parties Ordinance are novel and unprecedented to the history of legislation and if implemented they would lead to turmoil and a political chaos and instability in the State it, without commencing: on the merits of the above contention, may be pointed out without any fear of condition that the Courts are not surpervisory body over the legislative and if the law is competently made they are not concerned with If the wisdom or expediency of its provisions or with the motive of the legislature and that they do not decide the cases on the basis of sentiments and expediency.
40.The sum total of the above discussion is that section 8 (a) of the Political Parties Ordinance is perfectly valid and does not make any inroads on the fundamental right relating to the freedom of association enshrined in the constitution as the frontiers of the said fundamental right do not include in them, the domain of the Legislative Assembly, the entry to which is regulated by the Laws to be enacted by the Assembly, in view of the provision of the Constitution itself whose section 22
(2) and/ 24(f) in clear and unambiguous terms empower the assembly to determine the manner of election and to lay down disqualifications for a person from being elected or being member of an Assembly respectively and that since section 8 (a) of the Political Parties Ordinance debars a political party to participate in an election to the seat in the Assembly or put up its candidate for such an election which amounts to laying down disqualification from being member to the Assembly, it can not be challenged as unconstitutional being violative of the fundamental right of freedom of association,
41. For the reasons stated above, the petitioners cannot be granted the relief prayed for by them in this writ petition which is dismissed with no order as to the costs. MUHAMMAD AKRAM KHAN. J.-The following points fall for determination in this Writ Petition :-
(1) Whether this Writ Petition is premature as no action has been taken as yet by the Chief Election Commissioner under the impugned legislation ?
(2) Whether this Writ Petition is liable to be dismissed as being incompetent due to alleged waiver and estoppel on the part of the political parties to which the petitioners belong ?
(3) Whether the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974, regarding the Fundamental Rights (especially the right under section 4 (7) are to be construed liberally or strictly ?
(4) Whether the petitioners are an aggrieved party ?
(5) What is meant by the Fundamental Right regarding "freedom of association". Is the term "freedom of association" wide enough to include the right of a person to stand and get elected as a Member for the Legislative Assembly of Azad Jammu and Kashmir ?
(6) What are the constitutional limits on the "freedom of association" and what is meant by "Public Order" and "Morality"?
(7) What are the statutory limits which impose restrictions on the "freedom of association" in Azad Jammu and Kashmir ?
(8) What is meant by "restriction" and "reasonable restrictions" on the "freedom of association" ?
(9) What is meant by the word "form an association" (political party) under section 4 (7) (1) of the Azad Jilin and Kashmir Interim Constitution Act, 1974. Is the formation and continuation of a political party necessary for the functioning of democratic State/Government ?
(10) Is the matter of deregisteration purely a statutory matter and as such it does not violate any fundamental right at all especially the right of association ?
(11) Is the deregisteration of political parties, to which the petitioners belong, justified under law and Constitution ? And (12)Whether the impugned legislation violates the fundamental right contained in section 4 (7) of the Azad Jammu and Kashmir Interim Constitution Act of 1974 and, as such, is liable to be declared as void under sections 4 (1) and (2) and struck down as bad and violative of the Constitution ?
2. It has been argued by the Deputy Attorney General, Mani& Muhammad Qayyum, the learned Advocate for the respondents, that this Writ Petition is premature because the Chief Election Commissioner has not taken any action as yet under the impugned legislation. It has been argued that the election has only been threatened and, therefore, the petitioners cannot seek any relief unless and until these parties are clergy . In this connection, reference was made to the Constitutional Law of India by Seervai, para. 8.40 p.
188.
' The precise argument is that let the Chief Election Commissioner first deregister the two Political Parties i,e, Tehrike Amal and Azad Muslim Conference and then the petitioners should approach the High Court under Section 44 of the Interim Constitution Act of 1974. As the registration of these two parties has not been cancelled, so no cause of action and no grievance has arisen to the petitioners. This petition is premature.
3. The preliminary objection is untenable because in this writ petition, the vires of the impugned legislation have been challenged and it is not necessary that some action should be taken positively under the impugned legislation. A threatened violation of a fundamental right also sometimes gives a cause of action to the petitioners. It is the settled law that the J vires of an enactment can be challenged in the Writ Jurisdiction under/ section 44(2) (c) and it is only the High Court which can declare a law to be constitutional or unconstitutional. No other Court is empowered to adjudicate upon the vires of an enactment or a rule. The case of Ghiasul Hag (1), was no doubt cited by the learned Counsel for the respondents but it has got no application in the instant case, because under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, the Services Tribunal is competent to look into the vires of an impugned Act or rule. An appeal from the order of the Services Tribunal goes to the Supreme Court just as an appeal lies to the Supreme Court from the judgment or order of the High Court of Azad Jammu and Kashmir.
4. I need not quote any authority in support of the view that the) fundamental rights are justiciable because the Constitution says so. I therefore quote the relevant portion of section 44(2) (c) of the Interim Constitution Act of 1974:-
(2) Subject to this Act, the High Court (may) if it is satisfied that no other adequate remedy is provided by law.
(a) (b).
(c) on the application of any aggrieved person make an order giving such directions to the person or authority including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act."
(Underlining is mine)
5.There can be no two opinions that the power of judicial review is: available to the High Court in Azad Jammu and Kashmir and the High LL Court can in proper and fit cases declare the constitutionality or otherwise of the laws enacted by the Legislature.
6.Judicial review, in the modern sense, originated in England in 1610 when Sir Edward Coke, Chief Justice of England, asserted this notion in the celebrated case of Dr. Thomas Bonham. Coke observed: "That in many cases the Common Law will control acts of Parliament (1)PLD 1980 SCAJK 5 [Here in italics] and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void."
7. The brilliant Chief Justice was removed from his office in 1616 and imprisoned at the age of seventy. Coke's doctrine did not prevail in England because the Sovereignty of Parliament was affirmed in 1849 and well established in 1871 in the case of Lee v. Bude and Torrington Junction Rly Co.. (1), wherein Willes observed:- do not sit here as a Court of Appeal from Parliament. We sit here as servants of the Queen and the Legislature".
' Coke lost his cause in England but won it in America where in 1761, James Otis relied on Coke's doctrine in Paxton's case. The doctrine of Judicial review was well established in 1802 when Chief Justice John Marshall concluded the matter by his decision in Marbury v. Madison. (2), whereby the Supreme Court assumed and asserted the power of reviewing legislature Acts.
8.Now in all the countries where we have got written Constitutions, there are express provisions of judicial review of legislation. The position was fully elucidated by the Supreme Court of Pakistan in Fazhil Qader Chowdhary v. M. Abdul Haque (3), wherein Cornelius C. J. Observed:- "The administration of public justice is referred to the Courts. To perform this duty, the first requisite is to ascertain the facts, and the next is to deterime the law applicable to such facts. The Constitution is the Fundamental law of the State, in opposition to which any other law, or any direction or order, must be inoperative and void 17 9.So far as fundamental rights are concerned, Indian and Pakistani and Azad Jammu and Kashmir Constitutions confer power on the superior Courts to question the validity of laws made by the Legislature, in so far as they are inconsistent with or in contravention of the Articles relatives to Fundamental Rights-and to that extent to adjudge them void.
10.In the case of Abul Ala Maudoodi v. Government of West Pakistan (4) Mr. Justice Hamoodur Rehman reviewed the power of judicial review regarding the fundamental rights and observed:- "In this respect the Constitution of the Republic of Pakistan, the Indian Constitution and the late Constitution of Pakistan made a significant departure from the American pattern, for, there is no such express duty cast upon the American Courts by the Constitution of the United States. It is for this reason that the Courts in America have utilised the "due process" clauses in the American Constitution to establish the principle that all laws are subject to judicial review. It is not necessary in this country to have recourse to any such device for our Constitution itself has clearly imposed upon the High Courts the duty of enforcing the fundamental rights and so far as fundamental rights are concerned, the Constitution itself has declared that all laws inconsistent with those rights shall be void to the extent of inconsistency. It is not necessary for the High
(1) (1871) L R 6 C P 576 (2) (1803) 1 Cr. 137
(3) PLD 1963 SC 486 (4) PLD 1964 SC 673 ' Courts in this country to declare a law to be void, for, the Constitution itself has done that. But all that the High Courts are called upon to do is to decide while and enforcing a fundamental right as to whether that right has been restricted by any law and whether such restriction is a reasonable restriction imposed in accordance with the terms of the Constitution... . ...... "
11. In the case of Hamdard Dawakhana etc. v. The Union of India and others (I), it was observed by the learned Judge Kapur in paras. 7 and 9 that when the validity of a statute is challenged, what are the matters which are to be taken into consideration. I would like to reproduce two paras. i. e.
Paras. 8 and 9:- . "8. Therefore when the Constitutionality of an amendment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i. e. Its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances ana conditions, the mischief which it intended to suppress, the remedy for the disease which the Legislature resolved to cure and the time reason for the remedy; Bengal Immunity Co. v. State of Bihar AIR 1955 SC 661 ; Rmd C'hamarhaughwala v. Union of India AIR 1957 SC 628 (631); Mahant Moti Das v.
5. P. Sahi AIR 1959 SC 942.
12.Another principle which has to be borne in mind in examining the Constitutionality of a statute is that it must be assumed that the Legislature understands and appreciates the need of the people and the laws it enacts are directly to problems which are made manifest by experience and that the elected representatives assembled in a legislature to enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment. Charanjit Lal v. Union of India, AIR 1951 SC 41; State of Bombay v.
F. NIBulsar AIR 1951 SC 318; AIR 1959 SC 942(948)." (Underlining* is mine)
' Section 8 of the Drugs and Magic Remedies (Objectionable Advertisements) Act of 1954 was declared unconstitutional as it clashed with Article 19(1)(f) and (g) and the goods seized from the petitioners were returned to the respective petitioners. The writ of Mandamus was issued directing the respondents to return the goods seized.
13.In the case of Messrs Haider Automobile Ltd. v. Pakistan (2), it was observed at p. 626 :- "To strike down a law as being opposed to a constitutional provision, one would have to show that there is a constitutional provision which the law in question violates. In the absence of any such constitutional provision it cannot be said that the law is bad merely because it violates some principle of justice and fairplay which ought normally he observed. The Courts cannot question the wisdom of the law maker if it has left one in no doubt as to this intention".
(1) AIR 1960 SC 554 (2) PLD 1969 SC 623 *(Here in italics)
' Both Manzoor Qadir and Mr. Muhammad Shafi were held to have been debarred by Ordinance No, H of 1964 from practising in the High Court of West Pakistan or any Court, or Tribunal subordinate thereto.
14.Mr. S. M. Zaffar, Advocate has referred to the page 17 of the Book. Indian Constitution by Basu-the portion under the sub heading:- "The Court's power and duty to declare a Law unconstitutional.-Subject to the foregoing procedural changes introduced by the 42nd Amendment Act, our Constitution expressely confers upon the Courts the powers of judicial review, and as regards Fundamental Rights, the Court has been, by the present Article, assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. The State of Madras v. Row (1952) SCR 597 Devilal v. S. T.
0. A. 1965 SC 1150 Kochunni v. State of i4adras, A, 1959 SC 725.
15.India's Constitution of 1950 has got a list of Fundamental Rights. Similarly the Constitutions of 1956, 1962 and 1973 of Pakistan have got the Objectives Resolution as well as the list of Fundamental Rights. The Interim Constitution of Azad Jammu and Kashmir of 1974 has also got a list of Fundamental Rights which is given in section 4. Any legislation which is ultra vires of section 4 of the Interim Constitution of 1974 is void under sections 4(1) and (2) thereof. Sections 4 (1) and (2) read as follows:- "4(1) Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall, to the extent of such consistency, be void.
(2) No law shall be made which takes away or abridges the rights so conferred and any law made in contraventions of the subsection shall, to the extent of such contravention, be void"
16.The point of waiver and estoppel merits no consideration because it is the settled law that there is no waiver or estoppel against a statute or Constitution. In this connection, the following authorities support to my view: - 17.In AIR 1955 SC 123 it was held that there is no waiver of a constitutional right. Similarly it was also held in Fazal-ul-Qadir Chowdhary's case (I) that there is no estoppel against the Constitution.
' I would like to reproduce para. 52 from AIR 1955 SC 123:- "Again, we are not able to subscribe to the view that in a criminal prosecution it is open to an accused person to waive his constitutional right and get convicted. A reference to Cooley's Constitutional Limitations. Vol. I, P. 371 makes the proposition clear. Therein the learned professor says that a party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement. In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter.
(1) PLD 1963 SC 486 ' No inference in deciding the case should have been raised on the basis of such a theory".
(Underlining* is mine)
18.In the case of Bashesher Nath v. Commissioner of Income-tax, Delhi and Rajasthan (1), it was observed by Bhagwati and K. Subba Rao, JJ, that it is not open to a citizen to waive his fundamental rights conferred by the Constitution and that it would be a sacrilege to whittle down these rights. S. K. Das J. In para. 53 observed at page 172:- "It has been said that 'Waiver' is a troublesome term in the law. The generally accepted connotation is that to constitute waiver, there must be an intentional relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is constitutional and is an agreement to release or not to assert a right, estoppel is a rule of evidence".
19.In the case of Bhaskar Moharana v. Arjun Moharana and others (2) it was held that the question of waiver has no application where there is contravention of the fundamental right. AIR 1959 SC 149 and AIR 1962 SC 36 were relied upon.
' I would like to reproduce para. 12 from page 170:- "Mr. Panda then relied on a decision AIR 195 Andh Pra 322 where it was held that a person who derived a benefit from the provisions of the Madras Hereditary Village Office Act could not contend that the Act was unconstitutional. But with the great respect the correctness of this decision may be open to some doubt in view of the aforesaid decision of the Supreme Court which clearly show that the provisions of the Articles 14. 15 and 16 cannot be waived inasmuch as they are commands addressed to the State.
20.I would like to reproduce from the case of Manzoor Ellahi v. Muhammad Zaman and others decided by me on 13-4-1985: ' The Word 'Waiver' has not been defined in any statute, therefore, we have to look to the dictionary meanings of the word :
(i) Waiver has been defined as a conscious renunciation of a right PLD 1960 Lah. 900 (947).
(ii) To constitute waiver there must be conscious giving up of the right PLD 1961 SC 452 (464) K.
(iii) In para. 7 of the case of Mustaqini v. Sher Bahadur, PLD 1962 Pesh. 12 Waiver has defined thus by learned Anwar-ul-Haq, J (as he then was:- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of positive act or relinquishment or of conduct such as would warrant an inference of relinquishment of right"
(i) Waiver is an intentional relinquishment of a person's own right PLD 1968 B J 5.
(.1) AIR 1959 SC 149 (2) AIR 1962 Orissa 167 *fliers is itiffics1
(v) Mohibullah v. Ghulam Asghar PLD 1974 Note 96 (A J K) 146:- "Although no hard and fast rules can be laid down as to what constitutes Waiver by conduct in relation to a pre-emptible sale and consequently every case has to be decided in the light of its peculiar facts, the test laid down in AIR 1915 All. 51 that "the pre-emptor must have a fair opportunity of purchasing the property' seems to be the heart and soul of the legal problem. If the answer is in affirmative the pre-emptor must fail but if it is in the negative, he must obviously succeed".
(v) .
(vi) It is a conscious relinquishment or surrender of right, PLD 1982 SC 159 (162, 163) para. 6.
(vii)The word has also been defined in a lucid authority of our own Supreme Court (A J K) in the case of Ali Haider Khan v. Sher Afzal Khan and 13 others PLD 1983 SC (A J K)
5. I would like to reproduce paras. 7, 8, 9 and 10 of that authority in which the judgment was written by learned Mr. Justice Abdul Majeed Mallick J, then the Judge of the Supreme Court (Now the Chief Justice of the A J & K High Court)- "7 . First we examine as to what waiver is? The dictionary meaning of word 'Waiver' is 'To abandon, relinquish, (a right claim, or contention either by express declaration or by some intentional act which by law is equivalent to this". In Law Terms and Phrases `Waiver' is described "Forsaking the assertion of a right act, at the proper time. An intentional relinquishment of a right a man is entitled to". The word 'Waiver' means to 'Forego; to waive a claim or right, or not to put forward the claim or right".
8. The definition of word 'Waiver' attracted the attention of the learned Judges in Manak Lal's case PLD 1957 SC (Ind.) 346. The relevant part of the observation is reproduced:- "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his right, and that being so, he neglects to enforce them; or chooses one benefit instead of another, painter, but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question"
8. The proposition was raised in Mustagim v. Sher Bahadur PLD 1962 Pesh. 140; where in a pre- emption case, the learned Judge, on examining the case law on the point, described 'Waiver' as under:- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right".
8. ' In Mohibullah's case (1), while deliberating over the proposition (1) PLD 1974 Note 96 at p. 146 relevant to waiver the learned Judges applying the test laid down in AIR 1915 All. 51 arrived at a conclusion :- "Although no hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to a pre-emptible sale and consequently every case has to be decided in the light of its peculiar facts, the test laid down in AIR 1915 All. 51 that "the preemptor must have a fair opportunity of purchasing the property seems to be the heart and soul of the legal problem. If the answer is in the affirmative, the pre-emptor must fail but if it is in the negative, he must obviously succeed".
' Waiver, precisely, means "to abandon or relinquish, a known vested right by an express declaration or by conduct".
Any person who intended to take benefit of waiver, is under an obligation to prove waiver by conclusive proof.'
20.In PLD 1975 Lah. 859(865)(f ), it was held that there is no estoppel against the statute.
21. The question of estoppel was also discussed by Mr. Justice M. Y. Saraf, C. J., (as he then was) in Walayat Khan's case (1), in which the following four constituent elements of estoppel by conduct, were, given :-
(i) ' If the statement of the existence of the fact had been made by the plaintiff to the defendant ;
(i) with the intention that the defendant should act upon the faith of 09 the statement ;
(ii) the defendant has, in fact, acted upon the faith of the statement ; and
(iii) the defendant has thereby altered his position to his detriment. Page 20-(A).
22. Estoppel is defined as "a disability whereby appellant is precluded from alleging or pursuing any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability PLD 1971 SC 376.
23. There is no estoppel against the statute :- PLD 1963 SC 564 ;PLD 1965 SC.371 ;PLD 1975 Lah. 859 and PLD 1976 Azad J & K 17.
24. Therefore, this writ petition is not hit by the principle of waiver or estoppel.
25. The next question arises as to whether the provisions of the Azad Jammu and Kashmir Interim Constitution Act of 1974, regarding fundamental rights, especially the right under section 4(7), are to be construed Q liberally or strictly.
26. The principles of the construction of the Constitution are given in Q the following authorities of Pakistan, India and Azad K ishmir :- PLD 1949 Lah. 376 ; PLD1950 FC1 ;PLD 1957SC 219 ;PLD 1959 SC 177 ; PLD 1959 SC 470 and PLD 1965 SC 120.
L D 1976 Azad J & K 17
(1) 282 U S 716 (2) AIR. 1952 SC 85 ' PLD 1969 SC 241 ;PLD 1973 SC 49; PLD 1974 AzadJ&K 67 PLD 1975 AzadJ&K 52; PLD 1975 AzadJ&K 81; PLD 1974 SC151 ;PLD 1976 SC 483; PLD 1979 SC(AzadJ&K) 139 Al R 1939 FC1 ;AIR 1962 SC 305 and AIR 1963 SC 1638.
27. In the case of C. P. And Berar Motor Spirit Act AIR 1939 FC 1 Gwyer C. J. Clarified this rule :- "I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors. A Federal Court will not strengthen but only derogate from its position, if it seeks to do anything but declare the law ; but it may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has got the greatest claim to be construed ut res magis valeat guaim_eereat."
28.With regard to American Constitution, it was held that it was written to be understood by the voters and hence, words and phrases in the Constitution are used in their ordinary and not in the technical meaning United States v. Sprague (1). In this connection, the following observations of Bose, J., in the State of West Bengal v. Anwar Ali (2), may also be quoted :- "The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people, for the common man for whose benefit and pride and safeguard the Constitution has also been written. Unless and until these fundamental provisions are altered by the Constituent processes of Parliament, they must be versed in the niceties of grammer and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection."
29.The main principles of the construction of Constitution are also given in the President's Special Reference PLD 1957 SC (Pak.) 219 by M. Monir, C. J.
30.I would also like to quote AIR 1963 SC 1638 (1655) : "When a validity of any legislative enactment is impugned on the ground that it clashes with some Fundamental Right guaranteed by the Constitution, it is necessary to bear in mind the primary rule of construction If the impugned provisions of a statute are reasonably capable of a construction which does not involve the infringement of any Fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said Fundamental Rights. If the impugned provisions are reasonably not capable of construction which would have its validity, that, of course, is another matter ; but if two constructions are reasonably possible, then it is necessary that Courts should adopt that construction which upholds the validity of the enactment rather than the one which affects its validity. "
31. The Constitution must be interpreted in the widest possible sense PLD 1958 SC (Pak.) 499. In the case of Sakal Papers, Ltd. v. Union of India (1), it was observed :- "It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as Fundamental and, therefore, while considering the nature and contents of those rights, Court must not be too astute to interpret the Constitution in a manner which would enable a citizen to enjoy the rights guaranteed by it in the fullest measure, subject, of course, to permissible restrictions". *(Underlining* is mine).
31. In the case of Sakal Papers Ltd. v. Union of India (2), the validity of the Newspaper (Price and Page) Act of 1956 and Daily Newspaper (Price and Page) Order of 1960 came into consideration.
' In paragraph 29 it is observed : "It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those right the Court must not be too astute to interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure, subject, of course, to permissible restrictions.
' Bearing this principle in mind it would be clear that the right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication subject again to such restrictions as could be legitimately imposed under clause 2, of Article 19. The first decision of this Court in which this was recognised is AIR 1950 SC 124. There, this Court held that the freedom of speech and expression includes freedom of propagation of ideas and that this freedom of circulation. In that case this Court has also pointed out that the freedom of speech and expression are the foundation of all democratic organizations and are essential for the proper functioning of the processes of democracy."
' Section 3, (1) of the Act was held unconstitutional. The petition was allowed.
32.Mr. Mallick, the learned counsel for the respondents halfheartedly argued that an alternate remedy was available to the petitioners as they could raise the question of the vires of the impugned legislation before the learned Chief Election Commissioner who has issued them a notice to show cause as to why the registration of the two Political Parties the Tehrik-e-Amal and Azad Jammu and Kashmir Muslim Conference should not be cancelled. When I told the learned counsel in the Court that the learned Chief Election Commissioner was not a Court and he could not 1R decide the question because it was the function of the High Court and
(1) A 1 R 1962 SC 305 (2) AIR 1962 SC 305 *Were in italics] Supreme Court to do so the learned counsel very wisely dropped this preliminary objection. I need not discuss it now but would like to quote Mr. Justice (Rtd.) Muhammad Gul (the Chief Election Commissioner) from page 135 of PLD 1980 Jour. 134 (135) A, (In re : Registration of Azad Jammu and Kashmir Peoples Party) " it cannot be gainsaid that the Chief Election Commissioners' authority or jurisdiction is in no wise assailable to that of the High Court under section 44 (2) of the Interim Constitution. To sit in judgment to adjudicate the vires of the law he is required to administer, would amount to usurpation of the High Court's jurisdiction which I cannot and would not do."
' This observation has been beautifully made and is sufficient to overrule the preliminary objection.
33.The question No, 4.-Is whether the petitioners are an aggrieved party and as such entitled to the relief claimed for. The preliminary objection reads :- "Petitioners 3 to 12 have, on the other hand, since been notified as being elected to Azad Jammu and Kashmir Legislative Assembly and also called upon to participate in election to two seats reserved for women held on the first of June, 1985. Therefore, they are not "aggrieved persons", which is a sine qua non for writ of mandamus and prohibition."
34. The meaning of aggrieved person are given in :- PLD 1969 SC 223 PLD 1975 Lah. 544 PLD 1979 Pesh. 75 PLD 1979 Q 75 1979 SCMR 389 1981 CLC 321 1981 C 1539 35.The reply of Mr. S. M. Zaffar was that sufficient answer is available in the written statement of respondent No, 1 which reads :- "The petitioners did participate in the elections as it is the objectives of the petitioners as political parties and as politicians to further the democratic process. But that does not debar the petitioners to get a law corrected which is in conflict with the constitution and in violation of the Fundamental Rights.
' According to the petitioners, both the actions vi:. Of participating in the elections and of challenging the vires of the invalid legislation are in the same direction i,e, to ensure full and healthy democratic process in the country."
36.No doubt the petitioners did participate in the election of the two lady M. L. A.s and were notified as being elected, yet they are aggrieved persons in the sense that they are not allowed to continue as such and they are being deprived of their seats in the Azad Jammu and Kashmir Legislative Assembly. They have been successful in the recent elections and now they are asked to vacate their seats. Their Constituencies are being deprived of their chosen representatives and their parties are not allowed to voice their feelings, and grievances in the Legislative Assembly.
Moreover, if ousted, they will not be able to discharge their functions as M. L. A.s and not be able to participate in the legislation and in making and unmaking of the Government. They have got the fruit of the elections but they are not being allowed to eat the fruit. Deprivation of seats to M. L. A.s is a sort of punishment hence they are the aggrieved persons.
37.Now I turn to the question No, 5: what is meant by the Fundamental Right regarding freedom of association. First of ill I intend to discuss the Fundamental Rights in general: their origin and inclusion in the post war modern Constitutions and then I shall confine my discussion to the fundamental right regarding the right of association.
38. Let me, in the very beginning, point out that the freedom of U association is guaranteed even by the Holy Qur'an. I refer to the U Chapter 3 Ayat No, 104(3:104) which reads : - "And let there be formed of you a community inviting to good, urging what is reputable and restraining from what is disreputable."
Then we find a complete and full great charter of Human Rights in the v Last Sermon of flazrat Muhammad (May the Peace of Allah be upon him!) V was delivered at Arafat.
39.The fundamental rights are mentioned in all the written Constitutions of the civilized countries.
They are justiceable and w therefore no legislation can be made against them. The Executive cannot W pass orders which go against the fundamental rights. The list of W fundamental rights may be small in one country and large in another.
40.Mr. A. K. Brohi wrote in his Book 'Fundamental Law of Pakistan' at page 309. :- "These fundamental rights that have been constitutionally guaranteed operate like a double- edged sword: they not only destory those portions of existing law, which are in conflict with these rights but they operate also to render valid any State-action (which after in the legislative or executive field) which after the coming into force of the Constitution has the effect of taking away or abridging any of the fundamental rights. Any law passed in contravention of the rights preserved by Part II of our Constitution (of 19'6) to the extent of such contravention, would be void (Article 4).
' The specific mentioning of fundamental rights in constitutional documents owe its genesis and historic orientation to the fashion set in that behalf by the American people. They were the first who emphasized the necessity of incorporating these guarantees in, what they call, the Bill of Rights : a statement of these rights is to be found in amendments to the U. S. Constitution (1 to-107, 13 to 15 and 19) as also in certain other specific provisions that are to be found scattered about in the main text of the original Constitution drawn by the Philadelphia Convention."
41.M. Munir in his Book "Constitution of the Islamic Republic of Pakistan (1962) has written at page 82 :- "Fundamental rights are those natural rights which are personal to the individual as a citizen of a free and civilized community and belong alike to every man, woman and child. The mere statement of such rights in the enacting part of a Constitution is a prohibition by necessary implication of legislation inconsistent therewith, making such legislation void. They are, however, not absolutely indefeasible, but are so unless or until the Government, acting in pursuance of the Constitution or some law passed pursuant thereto, requires their surrender for considerations of public welfare or safety. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, legislative, executive and judicial, prohibiting them from interfering with their exercise. No right can be properly described as fundamental if the Legislature can take it away by a law not involving an amendment of the Constitution, or unless its suspension or surrender in a national emergency is specifically provided by the Constitution itself.
A right to be fundamental must be such as is enforceable by judicial or some other process. Any action taken by the Legislature or the Executive in violation of a fundamental right is void in law and the Courts are bound to make a declaration accordingly and to give suitable relief to the aggrieved party."
42. We do not know whether there existed some fundamental rights in the Greek City States but the origin of these rights can be found in the Sermon of the Hajj-at-ul-Wida by Hazrat Muhammad (may the peace of Allah be upon him!). This Sermon was delivered at the plain of Arafat before 144,000 loving followers. The text of this historical address is reproduced below :- '0 people I feel we may never meet again in such a gathering. This is our last meeting together'. `0 ye believers! Your blood, property and honour are forbidden for one another just as this holy city is sanctided for you on tnis day of this month. You are to appear before Allah and you will have to account for your deeds before Him. I urge upon you not to go astray after my death and thereby cut one another's throats'. `0 ye believers! (Keep in mind) I trample upon all the past deeds committed during the pre-Islamic period of Jaheliat (ignorance). All the disputes arising out of murders committed during Jaheliat stand written off and I disclaim the blood of the first murder (of a person) from my own family and declare that Hazeel who murdered lbn-e-Rabiee Ibne-Harsa is pardoned and there is nothing against him.' `I annul the first usury of my family namely the usury of Abbas Ibne-Abdul Matlab. That usury stands completely cancelled.' `0 ye believers! Stand in awe of Allah in taking care of your wives for they were solemnised as your wives in the Holy Name of Allah and it is the Divine Word which permitted your conjugal relationship with them. You have a claim upon your wives that they do not allow anyone else on your bed, the presence of any other person would be totally disagreeable to you. But if they fail to obey, you may chastise them to the level of invisible thrashing. Your wives have a reciprocal claim upon you to receive proper food and dress and living'. `0 ye believers! Hold fast unto the legacy that I am be questing unto you and you shall never go astray if you remain attached to it, the Holy Qur'an'. `There wi 11 be no prophet after me and no Ummah (religious community) after you. Listen! You must bow before Allah and pray five times a day. Keep fasts during the holy month of Ramadhan, pay Zakat willingly, perform Hajj of Bait' Ullah (The House of God) and obey the orders of your saints and you shall be rewarded with entry into Paradise. Believers! You will be questioned about me also on the Day of judgment. Tell me what shall you answer'.
' All the believers replied in unison. 'Verily we bear testimony to the fact that you have performed the true office of 'Prophethood' and instructed us to discriminate truth from untruth and right from wrong'. (They raised slogans:) `You have communicated the message, 0 Messenger of Allah, you have communicated the message, 0 Messenger of Allah'.
'0 A lah! Listen to what your worshippers are saying. Bear Witness, 0 Allah, to what all these people are testifying. Bear your Personal testimony, 0 Allah, to What all these humans are committing'. `Convey the message unto those who are not present here. It is quite likely that such people (who are not present here) may excel many listeners in memorising this statement and preserving it'."
44. Therefore, it is wrong to say that the origin of fundamental rights, also called basic rights, is traceable to the philosophy of some European Writers of the Seventeenth and Eighteenth centuries, particularly , Locke and Rousseau, the theory of natural law, English Common Law and the economic theory of individualism with its guiding principle laissez, w faire. In fact, in the French Revolution, the principles of liberty equality, and fraternity came from Islam. The French Revolution failed because it ate up its own children but the notions of these rights were taken by the settlers to the American continent which attained independence and made the Constitution of the United States. From America they were borrowed by the European States which were reconstituted after the two world Wars. In December,. 1948 the General Assembly of the United Nations Organization approved a list of 30 Human Rights which are similar to and include the more important of fundamental rights.
45. India's Constitution of 1950 has got a list of fundamental rights. Similarly the Constitutions of 1956, 1962 and 1973 of Pakistan have got the Objectives Resolution as well as the list of Fundamental Rights. The Interim Constitution of Azad Jammu and Kashmir of 1974 has also got a list of Fundamental Rights which is given in section 4.
46.Syed Sharif-ud-Din Pirzada has written in his book "Fundamental Rights and Constitutional Remedies in Pakistan" at pages 4 and 5 :- "In Jibendra Kishore v. The Province of East Pakistan PLD 1957 SC (Pak.) 9 the Supreme Court of Pakistan held that "the very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but fraud on the citizens or the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law."
Reaffirming the said view in the State v. Dooso PLD 1958 SC (Pak.) 533 Munir, C. J. Observed that the very essence of a fundamental right is that it is more or less permanent and cannot be changed like the ordinary law. It is submitted that a fundamental right is permanent as it is a part of the Constitution, which term itself implies an instrument of a permanent nature : Livermore v.
Waite, 25 L R A 312. In Vonhorne v. Dorrance, I L E D 391, it was pointed out that "the Constitution of a State is permanent, not to be worked upon by the temper of the times, not to rise and fall with the tide of events. Notwithstanding the competition of opposing interests and the violence of contending parties, it remains firm and immovable, as a mountain amidst the strife and storms, or a rock in the ocean amidst raging of waves."
47. In the case of Mr. Fazlul Qader Chowdhary and others v. Mr. Muhammad Abdul Hague (1), it was observed by Cornelius at pages 511 and 512 Caption "Another way of looking at the matter might be this. It is clear from a reading of Article 224(3), that the principal duty laid upon the President and those working with him was to bring the Constitution and all its provisions into operation as an integral whole, without variation whatsoever. Being conscious that its provisions might not be adapted to every one of the vast range of physical and factual circumstances, obtaining in the country, and therefore changes might be necessary in order to "get it on the ground and working" (if a colloquialism might be permitted) a responsibility was placed on the President, to be exercisable only within a limited period, to make such adaptations as might be necessary to overcome maladjustments or difficulties that might appear.
This responsibility at the highest level, was given to vary provisions in the Constitution, not for the purpose of altering the Constitution itself, but in order that the Constitution as a whole should be brought into force. Viewed in that light, the provisions to be applied were (1) that which enabled the President to appoint persons to a Council of Ministers, and (2) the further provision that Ministers should be included among holders of office of profit in the service of Pakistan, and as such subject to a disability, namely, that they could not be members of any Assembly at the same time. These provisions had a very important purpose, namely, to bring into operation a Presidential form of Government, in which the Executive was to be completely separated from the Legislature. The major duty upon all concerned including rile President was to bring these fundamental provisions into operation. What has actually been done is that instead of implementing these basic provisions, they have been altered in a fundamental way so as to change the form of Government from the pure Presidential form to an anomalous Parliamentary form. It is quite impossible to regard the operation as one in aid of bringing the integral provisions of the Constitution into operation.
' If the conclusion be that the adaptations made were not within the power, since their effect and purpose was to alter the very nature of the Constitution, the reason given for the change would seem to lose importance. The expression "necessary and expedient" appears in the Preamble, as it does in clause (3) of Article 224, but in the latter clause, the necessity and expediency must be for the purpose of removing a difficulty of one of the expressed kinds. Here, the
(1) PLD 1963 SC 486 ' expediency and necessity were for producing an effect contrar3 to that clearly stated in the Constitution, and not for the purpose of bringing the Constitution as it was granted to the country, into operation. The preamble states that the members of the Assembly had expressed unwillingness to become Ministers if they were to cease to be members. Presumably as members, the gentlemen in question had taken an oath to "preserve, protect and defend the Constitution" and their insistence that the Constitution should be altered before they became Ministers would seem not to have taken sufficiently into account the solemnity of that oath.
' The impression is clear and unavoidable that the ground of expediency was based on a desire to accede to the wishes of certain persons, probably a fairly small number of persons, but the Constitution was not intended to be varied according to the wishes of any person or persons.
Anything in the nature of "respecting of person", unless provided by the Constitution itself, would be a violation of the Constitution, and if the Constitution were itself altered for some such reason, and that in a substantial, and not merely a machinery aspect, there would clearly be an erosion. a whittling away of its provisions which it would be the duty of the superior Courts to resist in defence of the Constitution. The aspect of the franchise, and of the form of Government are fundamental features of a Constitution, and to after them, in limine in order to placate or secure the support of a few persons, would appear to be equivalent not to bring the given Constitution into force, but in bringing into effect an altered or different Constitution."
(Underlining is mine)
48. In this lucid judgment, the learned Chief Justice Cornelius (as he then was) referred to the Reference by the President, PLD 1957 SC (Pak.) 219, in which case the Court resisted an attempt which gave certain powers to the President (power to form the Constituencies and to order the preparation of electoral rolls in direct violation of the constitution. It was insisted that nothing should be permitted which derogates from the "Very basis" of the Constitution or is in direct violation of the Constitution.
' Cornelius C. J. Observed at pages 502 and 503 ,- `The Judges of the Supreme Court and the High Courts when they enter upon their office, are required to swear an oath that they will "preserve, protect and defend the Constitution". Such an oath has to be taken also by the President, by the Governors, by the Ministers and by the Speakers, and Deputy Speakers as well as all Members of the Assemblies 1 he President is charged as the Chief Executive with vast powers and responsibilities to be exercised and discharged under various Articles of the Constitution and these two Courts (High Court and Supreme Court) are bound by their oath and duty to act so as to keep the provisions of the Constitution fully alive safe from all defect or harm, and to stand firm in defence of its provisions against attack of any kind. The duty of interpreting the Constitution is in fact a duty of enforcing the provisions of the Constitution in any particular case brought before the Courts in the form of litigation."
[Mora is italics]
49. Fazle-Akbar, J., referred to the case of Marbury v. Madison, U S SCR (1), which contains, inter alba, this important passage :- "If then, the Courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case " and then observed at pages 512 and 522 :- ' It is also worthy to mention that the power to interpret the Constitution has been given to the superior Courts for safeguarding and upholding the Constitution. Really this power does not give to the Court any practical or real omnipotence but to see that if the Legislature has carried the mandate of the Constitution. In such cases the Judges ask not merely whether the law is on the Statute Book but whether it has a right to be there.
(Underlining is mine)
' At the end of the judgment at page 542, Hamoodur Rehman, J., (as he then was) observed :- "In any event, on question relating to the Constitutionality of actions the ground of laches cannot prevail, for there, can be no estoppel against the Constitution and the act which is unconstitutional cannot become Constitutional by lapse of time, nor can it vest any one with any kind of legal right to benefit from such an unconstitutional 50.In the case of Fauji Foundation and another v.
Shamimur Rehman (2), the learned Justice Muhammad Haleem Acting, C. J. Discussed the scope and power of the superior Courts regarding the judicial review of the legislative filed and after citing the cases of Twig Transport Company v. Sargodha Bhera Bus Service (3), observed in paragraphs 67 and 68 pages 546 and 547 :- "67.-Again in regard to the respective powers of the organs of the State Hamoodur Rehman, C. J., in State v. Ziaur-Rehman PLD 1973 SC 49 observed thus :- In all such cases, it will also be the function of the constitution to define the function of each organ or each branch of an organ, as also specify the territories in which, the subjects in respect of which and sometimes, even the circumstances in which these functions will be exercised by each of these organs or sub-organs. Limitations would therefore, be inherent under such a system so that one organ or sub-organ may not encroach upon the legitimate filed of the other. Thus, under a written Constitution, the Legislature of a federal unit will not be able to legislate in respect of a subject which is within the field of the federal Legislature, nor will a Federal Legislature be able to legislate upon a subject which is within the exclusive field of the Legislature of the federating units.
It cannot, therefore, be said that a Legislature, under a written Constitution possessed the same powers of 'omnipotence' as the British Parliament. Its powers have necessarily to be derived from, and to be circumscribed within the four corners of the written Constitution.
' Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining till 2 Law Ed. U S 5-8
(2) PLD 1983 SC 457
(3) PLD 1958 SC 437 *(Here in italics] the legislative competence or to such other limitations as are in the Constitution ; and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.
68. Clearly, therefore, the scope of judicial review is confined to the enforcement of the Constitution as supreme law. Aside from the inherent prerogative to interpret the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the legislation. It however, does not extend to prying into the affairs of the Legislature."
51. Mr. S. M. Zaffar Advocate has referred to the Indian Constitution's portion under the sub-heading :- "The Court's Power and Duty to Declare a Law Unconstitutional. Subject to the foregoing procedural changes introduced by the 42nd Amendment Act, our Constitution expressly confers upon the Courts the powers of Judicial review, and, as regards Fundamental Rights, the Court has been, by the present Article, assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches great weigh' to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. 36-37."
52.Mr. S. M. Zaffar Advocate has referred to the "Law of Writs" by V. G. Ramachandran pages 79 and 80, where it is mentioned that where a fundamental right is affected, the bar of alternate remedy goes. The following is the relevant portion of the Book "Constitutional Law of India" :- "No bar, in case of fundamental rights.-Where a fundamental right is affected the bar of alternative remedy goes. A petitioner is not in error in coming with a consolidated writ petition challenging the impugned order that it was in violation of fundamental principles of justice even though he has a right of appeal against the order. The cases that urge that even in the case of breach of fundamental right, the Court can yet see if the other remedy is effectual and beneficial are not correct. Where the procedure adopted by Government in terminating the services of the petitioner was altogether illegal and violated his fundamental rights and Article 311, he ought not to be driven to a civil suit. He should be given the writ remedy.
' Rights in Part III cannot be infringed by the State, and they are but civil in nature. The question of an alternative relief being available cannot arise where there is a violation of the rights in Part III e g., imposition of Sales Tax in contravention of Article 286 will be a breach of the right vouchsafed under Article 19 (I)(g). Where police regulations enable the keeping of history sheets and movement registers, no freedom of movement right under Article 19 can be said to be violated as the safety to the community at large is more important. A tax levied without legal authority can be quashed by a writ and in such cases as the right to practice profession is infringed, the existence of alternative remedy creates no difficulty. Payment of tax made under mistake is repayable and there is no estoppel against assessee on this account, even if he had wrongly included it in his return. If an Act is inconsistent with Articles 29(1) and 30(1) it is bad since it is violative of them. So it is not necessary for the petitioner to establish his own fundamental right if affected. It would be sufficient that it causes or threatens to injure him. Laches or delay do not affect a writ petition where fundamental rights are concerned."
53. Mr. A. K. Brohi writes in his Book "The Fundamental Law of Pakistan" at page 333:- "Despite the fact that the Constitution contains an express prohibition directed against the legislative organs thereby preventing them from making any law which takes away or abridges the rights... , there is no known method whereby the legislature can he prevented from enacting laws, which are inconsistent with the fundamental rights guaranteed under the Constitution. No mandamus can lie to compel the 1pgislature to do or refrain from doing any act If the Act, as it finally emerges is in conflict with the fundamental rights, it would ipso facto be void and can be declared as such by our Courts"
' At page 334 Mr. Brohi addes:- ' In support of this view reference could usefully be made to the case of Chotey Lai v. The Suite of U.
P. (1) at page 231 :- "It is necessary to understand exactly how and in what circumstances courts declare laws invalid or unconstitutional. Until a bill has become law, the legislative process not being complete, Courts do not come into the picture at all. It is not the function of any Court or Judge to declare void or directly annul .a law the moment it has been promulgated. Courts are not a supervisory body over the Legislature. Their approval or disapproval is not needed for an Act passed by the Legislature to have the force of law. Their function is interpretative. In other words, upon any particular case coming before them in which the right of any party is involved they decide whether the Act or any part of it is to be disregarded on the ground of its incompatibility with the Constitution."
54.In the case of Ram Singh v. The State of Delhi (2), Bose, J. While commenting on the Indian Article
19. Arts. 8 to 12 of the Constitution of Pakistan of 1956, in his dissenting judgment at page 276, observed:- -In every case it is the rights which are fundamental, not the limitations; and it is the duty of this Court and of all Courts in the land to guard and defend these rights jealously. It is our duty and privilege to see that neither Parliament nor the Executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms, and in the case of the Executive, to see further that it does not travel beyond the powers conferred by Parliament. We are here to preserve intact for the people of India the freedoms which have now been guaranteed to them and which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to naught either by Parliamentary legislation or by Executive action."
55.However the fundamental rights are subject to the reasonable restrictions. According to A. K.
Brohi the burden of proof lies on the
(1) AIR 1951 All. 228 (2) AIR 1951 SC 270 side which claims that the restrictions are unreasonable (page 365 of the Fundamental Laws of Pakistan). This aspect is very important from our point of view because here in the case before us we have been called upon to give our verdict whether the restrictions contained in section 8-A of the impugned Ordinance, 1985 are reasonable. If the burden is on the Government (The President/Chief Executive who promulgated the impugned legislation imposing important restrictions), then we have to see whether the Non-petitioner No, 2 has been successful in persuading us that the .Impugned legislation is reasonable. About the burden of proof of the fact whether the restrictions are reasonable, we would like to reproduce the observations of Meredith, C.
J. Of the Patna High Court in the case of Brajnandan Sharma v. State of Bihar (1) :- "Thete has been a prima facie infringement of that right. Therefore, the burden is, in my opinion on the State to bring that law within the exception contained in Article 19, clause (5) which alone can save it."
But the view of Mr. A: K. Brohi is that the Citizen has to show that the restrictions are unreasonable.
56. I think that the opinion of a dead Judge should be preferred to that of a living author. When both the learned Counsel were confronted with the question as to what the correct law in this respect was, Mr. S M. Zaffar referred to page 38 of the Indian Constitution by Basu and submitted that the onus was on the Government to prove that the impugned Ordinances were reasonable.
The reason behind this is that the liberty of an individual or an association of individuals is very precious and therefore when some authority deprives it arbitrarily or otherwise, it must show under what circumstances that liberty was taken away. A fundamental right should not be lightly treated and therefore when it is taken away or abridged by the Executive or the Legislature, it must be shown to the satisfaction of the Court before who in cause is brought, that the deprivation or the abridgment of that fundamental right was justified and that the restriction imposed by the A Legislature (if an enactment is passed which takes away or abridges a fundamental right), it must be shown that the restriction thus imposed was reasonable and its mode and time of application was also proper.
57. Now I would like to come to the question No, 8 and discuss as to what constitutes a "Restriction" and then as to what is a "Reasonable" restriction.
What Constitutes a 'Restriction'. -when a law is impugned as having imposed a restriction upon a fundamental right, what the Court has to examine is the substance of the legislation, without being beguiled by the mere appearance of the legislation. The legislature cannot disobey the constitutional prohibitions by employing an indirect method.
' On the other hand, the effects of the legislation are relevant for this purpose only in so far as they are the direct and inevitable consequences or the effects which could be said to have been in the contemplation of the Legislature. In other words, Art. 19(1) can be invoked only when a law is made directly infringing a fundamental right. The possible, indirect or remote effects of a legislation upon any particular fundamental right cannot
(1) AIR 1950 Pat. 322 be said to constitute a restriction upon that right. Thus, if a law which imposes a valid restriction upon a fundamental right incidentally interferes with the exercise of some other right, it cannot be said to constitute a restriction upon the latter right.
' A restraint cannot be said to be 'restriction within the meaning of Art. 19 unless it is `imposed' by law and which the citizen has no option but to obey. Where the restraint is self-imposed inasmuch as the operation of the law is attracted by reason of a contract which the citizen is free to enter into his own will or choice, he cannot complain of the unreasonableness of the law. What is 'Reasonable'
Restriction. The expression 'reasonable restriction' seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Art. 19 and the social control permitted by any of the clauses (2) to (6). It connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. In order to be reasonable the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object".
58. In the case of Ramakrishinaiah v. President District Board Nellore (1), it was held that any interference with the right of association conferred by Art. 17 (1) (c) of the Indian Constitution to prohibit teachers from forming Union other than joining officially approved teachers Union was unconstitutional. Their Lordships of the Madras High Court observed at page 254:- "It is well established that the exercise of any of the fundamental rights like the right of free speech, right of freedom of religion or the right of freedom of association cannot be made subject to the discretionary control of administrative or executive authority which can grant or withhold permission CO exercise such right at its discretion. It is equally well established that there cannot be any restriction on the exercise of such a right which consists of previous restraint on such exercise and which is (in) the nature of administrative censorship. The guaranteed freedoms cannot be abridged or abrogated by the exercise of official discretion."
' This case contains comprehensive discussion of some of the American cases and could be read with profit as its principle would apply to the interpretation of section 4 (7) of the Interim Constitution Act of 1974.
59. In this connection the following American authorities are referred to:-
(1) Vhitney v. California (1929) 274 U. S. 357 : 71 Law Ed. 1095 ;
(2) New York Ex. Rly Byrant v. Zinmerman (1928) 278 U. S. 63 : 73 Law Ed. 184 ;
(3) Lovell v. Griffin (1938) 303 U. S. 444 : 82 Law Ed. 949 ;
(4) The Hague v. Committee for Industrial Organisation (1939) 307 U. S. 496 : 83 Law Ed. 1423 ;
(5) Schneider v. Irvington (1939) 308 U. S. 147 : 84 Law Ed. 155 ;
(6) Largent v. Texas (1943) 318 U. S. 418 : 87 Law Ed. 873 ;
(1) AIR 1952 Mad. 253
(7) United Public Workers v. Mitchell (1947) 330 U. S. 75 : 91 Law Ed.
754.
These cases have been also mentioned by A. K. Brohi in his Fundamental Laws of Pakistan at page 386.
60. In 1945, the Supreme Court of America observed thus "Any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might 113 support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation.
Accordingly, whatever occasion would restrain orderly discussion and persuasion, and appropriate time and place, must have clear support in public danger, actual or impending. Only gravest abuses endangering paramount interest, give occasion for permissible limitation."
"Select Modern Government (pp. 256-257 by V. D. Mahajan.
61.Unlike England and like India, Pakistan and Azad Jammu and Kashmir, "The Supreme Court of the U. S. A. Has the power to declare whether a particular law is ultra vires or intra vires. F rom 1789 to 1973, 64 Acts of the Congress out of the total of about 58,000 were declared unconstitutional by the Supreme Court" (page 177 of Select Modern Governments by Vidya Dhar Mahajan 1971 Edition).
62.Chief Justice Hughes said, "We are under the Constitution, but the Constitution is what the Judges say it is." According to James Beck, the American Supreme Court is "the balance wheel of the Constitution".
' Now I would like to discuss the point of "reasonable restriction" to the Fundamental Right of Freedom of Association under section 4(7) of the Interim Constitution of 1974.
63.Let me in the very beginning point out that "Reasonable" is and objective expression and its objectivity is to be determined judicially by E the Court of law. There is no limit placed upon the power of the Court E to consider the nature of restrictions. The Court must look upon the f, restrictions from every point of view. It being the Court to safeguard fundamental rights, the greater is the obligation of the Court to scrutinize the restrictions placed by the Legislature as carefully as possible.
64.Now I would like to cite certain cases regarding the reasonableness of restrictions from the Indian, Pakistan and Azad Jammu and Kashmir Jurisdictions :-
(1) Jeshingbhai v. Emperor AIR 1950 Born. 363 (366-367) Court has to decide what is and what is not reasonable restriction).
(2) Brajnandan Sharma v. State of Bihar AIR 1950 Pat. 322 (The Courts apply an objective test of reasonableness).
(3) N. B. Khare v. State of Delhi AIR 1950 SC 211.
(4) chintamanrao v. The State of Madhya Pradesh AIR 1951 SC 118.
(1) V. G. Row v. State of Madras AIR 1951 Mad.
147.
(2) State of Madras v. V. G. Row AIR. 1952 SC 196.
(3) George Chadayamurry v. State AIR 1952 Tra-Cochin 217,
(8) Gurbachan Singh v. State of Bombay AIR 1952 SC 221.
(9) Kaka Ramji Laxman v. The State of Kutch AIR 1954 Kutch 15.
(10) Hari Khemu Gawali v. The D. C. Of Police Bombay PLD 1957 SC (Ind.) 90.
65. In the case of Jeshingbhai v. Emperor (1) the learned Chief Justice Ghagla (as he then was) laid down that the Court has got powers to scrutinize the restrictions imposed by law. It was a case in which the Article 19 of the Indian Constitution was discussed. Chief Justice Ghagla observed in para. 7 at pages 366-367 :- "It is important to note that the Legislature has been given the powers to impose restrictions on the exercise of the rights conferred under Art. 19(1), sub-clauses (d) and (e), but it is equally important to note that those restrictions have to be reasonable restrictions. It is not for the Legislature to determine whether the restrictions are reasonable or not. It is for the Court of law to consider the reasonableness of the restrictions imposed upon the rights. "Reasonable" is an objective expression and its objectivity is to be determined judicially by the Court of law. There is no limit placed upon the power of the Court to consider the nature of the restrictions. The Court must look upon the restrictions from every point of view. It being the duty of the Court to safeguard fundamental rights the greater is the obligation upon the Court to scrutinize the restrictions placed by the Legislature as carefully as possible. It has been suggested that as far as- these restrictions are concerned, they must be only considered from one or two restricted points of view. The Advocate-General has argued that if the restriction per se is reasonable, then the Court is not entitled to look at anything more. He says, for instance, in this case the citizen is entitled to be anywhere in the Union of India except the District of Ahmedabad, and, therefore, it cannot be said that the restriction is an unreasonable restricted. Because a large part of the Union of India is left free to the citizen to do what he likes in that part. It is also suggested that perhaps the Court may be able to consider the duration of the restriction, and if the duration is limited and not of an unlimited character, then also the Court would say that the restriction is not unreasonable. But the Advocate-General says that apart from this it is not open to the Court to consider the nature of the restriction. In my opinion, that contention is entirely erroneous. In order to decide whether a restriction is reasonable or not, the Court must look at the nature of the restriction, the manner in which it is imposed, its extent both territorial and temporal, and if after considering all this the Court comes to the conclusion that the restriction is unreasonable, then the restriction is not justified and the Court will not uphold that restriction. It must not be forgotten that the power given to the Legislature under sub-clause
(5) of Art. 19 is to abridge or curtail the fundamental rights of the citizen, and it is a well-established canon of construction of all constitutional documents that the Court must lean in favour of fundamental rights and must place the restrictions imposed upon the Legislature in as narrow an ambit as possible. The question that the Court has always to ask is : Is the Legislature justified in abridging or curtailing the fundamental
(1) AIR 1950 Born. 363 [There in italics] rights given by the Constituent Assembly to the citizen? If the Court comes to the conclusion that the curtailment or abridgments justified, then undoubtedly the restrictions are reasonable and the Court would uphold these restrictions. It has been sought to be argued by Mr. Purshottam that these restrictions under sub-clause (5) can only be in the interest of the general public, and according to Mr. Purshottam this is a narrow and restricted expression and can only apply to minor things litre traffic and police regulations. Mr. Purshottam draws our attention to sub-clauses (2), (3) and (4) of Art. 19 which contain exceptions to the other fundamental rights guaranteed by the Constitution under Art.
19. For instance, ' Art. 19 (1) (a) speaks of the right to freedom of speech and expression, and sub-clause (2) saves the operation of those laws which relate to libels, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Sub-clause (1)(b) deals with the right to assemble peaceably and without arms, and sub-clause (3) saves the operation of the laws which are made in the interests of public order and which impose reasonable restrictions on the exercise of that right ; and sub-clause (1)(c) deals with the right to form associations or unions, and sub-clause (4) saves the operation of the law to the extent that it imposes reasonable restrictions in the interests of public order or morality.
Mr. Pus shottam contends that "interests of general public" is something different from security of the State, public order.. Or public morality, and, therefore, the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India can only be restricted on the narrow ground of "interests of general public" which is much narrower than other grounds mentioned in sub-clauses (2), (3) and (4). ' I am unable to accept that contention.
"Interests of general public" is a very wide expression, much wider indeed than any of the expressions used in sub-clauses (2), (3) and (4). "Interests of general public" embraces public security, public order and public morality, and, therefore, much wider power is given to the Legislature under sub clause (5) to restrict the right given1F under the Constitution under Art. 19(1) (d) & (e). Therefore, the wider the power given to the Legislature the greater is the duty of the Court to see that the restrictions placed upon liberty are reason-w able restrictions."
(Underlining* is mine)
66. In the same Full Bench case, the learned Shah, J. (as he then was) observed in para 21 :- "The question whether the restrictions contemplated to be imposed by an impugned statute are "reasonable" within the meaning of Art. 19(5) of the Constitution of India will have to be judged with reference not to any individual cases which may arise or any hardship which may be caused by reason of the application of the provision of the statute but by reference solely to two considerations : (1) whether the restriction is a restriction on the exercise of the right which has been conferred by Art. 19, and (2) whether the restriction itself is reasonable having regard to the interest of the general public."
67. In the case of Dr. N. B. Khare v. The State of Delhi (1) the meanings of "reasonable restrictions" were given as under by Kania Chief Justice (as he then was) :- "In my opinion, clause (5) Art. Of 19 of Indian Constitution must be given its full meaning. The question which the Court has to consider is .Whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the true interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by Art. 19 may contain substantive provisions as well as product Ural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law pre.
Scribes five years' externment or ten years' externment, the question whether such period of internment is reasonable, being the substantive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and admit of the word "reasonable" as applied to restrictions on the exercise of the right,, is in any way unjustifiably enlarged. It seems that the narrow construction sought to be put on the expression, to restrict the Court's power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of Art. 19(5) has escaped the minority judgments in the two matters mentioned above. I am not concerned with the conclusion of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of Art. 19(5) only they are helpful."
68.In the case of George Chadayammury v. State (2), it was observed that the Court is to be the Judge of reasonableness. The Full Bench followed AIR 1950 SC 27 and AIR 1950 (?) 211. The paras 14 and 15 (per Koshi, J.) are reproduced as under :- "As for the test of reasonableness it is well settled that the Court is G to be the Judge of reasonableness. We need here only refer to what Da G J. Of the Supreme Court said in `Gapalan v.
State of Madras (3). At G page 109 of the report the learned Judge has observed :- "Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if, in its view, the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6)
(1) AIR 1950 SC 211 (2) AIR.I952 Tra v.-Co 217
(3) AIR 1950 C 27 whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under Art.
13. Here- again there is scope for the application of the 'intellectual yardstick' of the Court: If however; the Court finds, on scru tiny that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not."
' This view of the Court's function has since been followed in subsequent decisions both in the Supreme Court and in the various High Courts in India.
"15. A further preliminary fact to be noticed in this connection is that in deciding on the reasonableness or otherwise of the restrictions imposed by a law the substantive as well as the procedural provisions of the law should be examined. In 'Dr. Khare's case', the learned Chief Justice of India observed at page 214 :- "The law providing reasonable restrictions on the exercise of the right conferred by Art. 19 may contain substantive provisions as well as procedural provisions while the reasonableness of the restrictions had to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of the reasonableness of the procedural part of the law . . . It seems that the narrow construction sought to be put on the expression to restrict the Court's power to consider only the substantive law on the point is not correct."
' Mukerjee, J. Who dissented from the majority of the Judges in that case agreed with the learned Chief Justice on this point.
' The Full Bench held section 3 of the Cochin Criminal Law. Amendment Act as void and the notifications issued thereunder and the prosecution of certain persons for Transgression thereof as unsustainable.
69. In the case of Gurbachan Singh v. State of Bombay (1) the question of reasonable restrictions upon the right of free movement came into consideration before the Court. I reproduce para 7 of the judgment from page 224 :- "7-The second point urged by the learned counsel raises the question as to whether section 27(1) of the City of Bombay Police Act has imposed restrictions upon the fundamental right of a citizen which is guaranteed under Art. 19 (1)(d) of the Constitution and being -in conflict with this fundamental right is void and inoperative under Art. 13 (1) of the Constitution. There can be no doubt that the provision of S. 27(1) of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particulsir locality may jeopardize the peace and safety of the citizens. The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a citizen, come within the purview of clause 5 of Art. 19 of the Constitution ; or in other words whether the restrictions are reasonable? It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Art. 19(1)(d) of the Constitution are reasonable or not within the meaning of clause 5 of the Article would depend as much upon the
(1) AIR 1952 SC 221 procedural part of the law as upon its substantive part ; and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed.
70. In the case of the State of Madras v. V. G. Row ), the validity of the Criminal Law Amendment Act (1908) ; as amended in Madras in 1950 came into consideration before the Supreme Court of India as it clashed with Article 1.9(1) (c) and (4) of the Indian Constitution. The Madras High Court had declared it as unconstitutional and void and had quashed the Government order issued thereunder (AIR 1951 Mad. 147).
' The Supreme Court of India dismissed the appeal and upheld the judgment of the Madras High Court. I would like to reproduce para. 15 from pages 199 and 200 :- "(15) This Court had occasion in Dr. N. B. Khare v. State of Delhi, (1950) SC 519 to define the scope of the judicial review under clause (5) of Art. 19 where the phrase "imposing reasonable restrictions on the exercise of the right" also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness ; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
71.In the case of Kaka Ramji Laxman v. The State of Kutch and another (2), the validity of Bombay Police Act came into consideration of the High Court. Paras 8, 9 and 10 from pages 17 and 18:- "8. In considering the question whether a particular law or an order made thereunder imposes unreasonable restrictions on the exercise of fundamental rights, the Court has to consider the nature of restriction, the manner in which it is imposed and its extent. H The nature of restriction is that the applicant has to go out of Kutch where he came to preach religious doctrines to his followers. Manner in which restriction is imposed is that the District Magistrate satisfied himself after weighing and checking up information received that the applicant's presence in Kutch was detrimental to the peace and tranquility of the area. There is no provision in S. 468 for giving the applicant a list of grounds on which action was proposed to be taken against him and of hearing him before it was decided to issue the Order and it does not appear from the affidavit filed by the District Magistrate that any such procedure was followed. The extent of restriction is not stated in the Order. According to S. 468
(1) AIR 1952 SC 196 (2) AIR 1954 Kutch 15 of the Bombay Act, the Order must cease to operate with the cessation of operation of emergency at the end of one month, but the period for the operation of emergency may be renewed from time to time. Thus, the extent of the order may be a prolonged one if not indefinite. Taking all these facts into consideration, it would seem that the law by which such an order can be made and the Order made thereunder place unreasonable restrictions on the exercise of fundamental rights mentioned in Art. 19(1) (d) & (e). (Under lining is mine).
9. In Emperor v. Jeshingbhai AIR 1950 Bom. 363 (F B) (A), the question considered was whether the Bombay Public Security Measures Act (Act 6 of 1947), to the extent that it empowered the Government to issue the externment Order was void under Art. 13(1) of the Constitution inasmuch as it imposed restrictions on fundamental rights conferred by Art. 19(1) sub-clauses (d) and (e) of the Constitution. In the Act there was no period provided for the duration of the Externment Order and there was no provision made by which the person against whom the order so made was of right entitled to be heard in his defence. It was therefore held in that case that the restrictions placed upon fundamental rights conferred by Art. 19(1) (d) & (e) of the Constitution were not reasonable. In a Patna case, provisions of a similar Act, Bihar Maintenance of Public Order Act 3 of 1950 were considered `Brajandan v. The State of Bihar' AIR 1950 Pat. 322 (B). It was held that the impugned provisions imposed unreasonable restrictions as the satisfaction of some individuals was concerned. The provisions of the East Punjab Safety Act came for consideration before the Supreme Court in "Dr. N. B. Khare v. The State of Delhi AIR 1950 SC 211(C).
' The view held by the Patna High Court does not seem to have been approved as it was held that an Act which gave power to make Order of externment to a District Magistrate whose satisfaction was final did not contain unreasonable restrictions on the exercise of Citizens' rights. The period of externment in that case was three months. It was further held that by implication, there was provision for furnishing grounds for the Order, when the order was to be enforced for more than three months. In another Bombay case, S. 9(1) of the Bombay Prostitution Act came for consideration On Re. Shantabal Rani, Benoor' AIR 1951 Bom. 337(D). It was held that section 9(1) of the Act imposed unreasonable restrictions upon the fundamental rights of the petitioner under Art. 19(1) (d) & (e) and it was void inasmuch as it failed to provide for an opportunity being given to the person affected by S. 9(1) to be heard in his defence. In a Calcutta case sections 21 and 22 of the West Bengal Security Act (19 of 1950) came for consideration. It was held that an order restricting the fundamental rights must be declared unreasonable,* as there was no provision for giving an opportunity.To a person affected by the order of being heard by a properly constituted body- "Tozamal v. Joint Secy. To Government of West Bengal' AIR 1951 Cal. 322(E).
' In 'Ismail v. State of Orissa', AIR 1951 Orissa 86(F), Orissa Maintenance of Public Order Act (10 of 1950) came for consideration, It was held that in considering the reasonableness of externment order contemplated by Art. 19(5) of the Constitution, the Court has to consider that the fundamental principles of natural justice, which required that no party ought to be condemned unless he has been given a reasonable opportunity of putting forward his case before an impartial tribunal, have been contravened.
10. It thus appears from the decided cases examined above that the Courts have emphasised the necessity of giving opportunity to the person affected of being heard by furnishing him with grounds on which action is proposed to be taken against him before an order is made against him and the law and order made thereunder which fail to make any such provision are repugnant to the fundamental rights as imposing unreasonable restrictions. The view so held is reasonable and with respect I agree with it. According to the view held by the Supreme Court, externment for three months would not amount to imposing unreasonable restrictions. But there is nothing in the Act or in the Order made thereunder, from which it could be definitely concluded, that the externment could be restricted to a period of three months only. Thus there is reason to hold that the Law and the order made thereunder placed unreasonable restrictions on the rights conferred by Art. 19(1)
(d) & (e) of the Constitution. It must therefore be held that section 468 of the Bombay Act contravenes fundamental rights mentioned in Art. 19(1) (d) & (e) of the Constitution by imposing unreasonable restrictions and as such, the said provisions are void and inoperative."
72. In the case of Hari Khemu Gawali v. The D. C. Of Police Bombay and another (1), certain provisions of Bombay Police Act came into consideration and it was held that the determination of the question as to whether the restrictions imposed by legislative enactment upon the fundamental rights of a citizen are reasonable or not would depend upon the fact "whether the provisions of the impugned section are not justified in the larger interest of the community, or. In other words, whether they impose a larger restriction than is reasonably necessary to meet the situation envisaged by the section. "The learned Judge Sinha then quoted AIR 1950 SC 211 and AIR 1952 SC 221 and proceeded to dismiss the application. On the other hand, Jagannadhadas, J. Took a contrary view and held section 57 of the Act as constitutionally invalid. According to the judgment of the majority, the petition was dismissed.
73. In the case of Express Newspaper etc. v. The Union of India and others (2), the vires of the working Journalists (Conditions and Service) and Miscellaneous Provisions Act 45 of 1955 and the decision of the Wage Board constituted thereunder were challenged. The vires of the Act were challenged on the ground that the provisions thereof were violative of the fundamental rights guaranteed by the Indian Constitution under Article 19(1) (a), Art. 19(1) (g), Art. 14 and Art 32. The Supreme Court held that certain provisions of the Act (section 5(1) (a) (iii) of the Act) violated Article 19(1) (g) of the Constitution and were therefore unconstitutional. The decision of the Wage Board was also quashed.
(1) PLD 1957 SC (Ind.) 90 (2) AIR 1958 SC 578 ' I would like to reproduce paras 168 and 169 from page 621 :- "168. In Chintaman Rao v. State of Madhya Pradesh 1950 SCR 759 at p. 763: AIR 1951 SC 118 a( p.
119), Mahajan, J. (as he then was) observed at page 763 of (SCR): (at p. 119 of AIR): "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 course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot', be said to contain the quality of reasonableness and less it strikes a proper balance between the freedom guaranteed in Art. 19(1) (g), and the social control permitted by clause (6) of Art. 19, it must be held to be wanting in that quality", (Cited with approval in Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh 1954 SCR 803 at P. 811: (AIR 1954 SC 224 at p. 227) and in Tika Ramji v. State of Uttar Pradesh, 1956 SCR 393 at p. 446: (S) AIR 1956 SC 676 at P. 711) (Z19).
169. The State of Madras v. V. G. Row 1952 SCR 597 at pp. 606, 607: (AIR 1952) SC 196 at pp. 199- 200) (Z20), was the next case in which this phrase came to be considered by this Court and Patanjali Sastri, C. J., observed at page 606 (of SCR: (at pp. 199-200 of AIR): "The Court had occasion in Dr. N. B. Khare v. State of Delhi 1950 SCR 519: (AIR 1950 SC 211) (Z21), to define the scope of the judicial review under clause (5) of Art. 19 where the phrase "imposing reasonable restrictions on the exercise of the right" also occurs and four of the five judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should he examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied in each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict" (Underlining* is mine).
' At page 626 of this very authority reference was made to the case of Saghir Ahmed v. The State of U. P. (1), in which after considering various cases cited from both sides, the Supreme Court of India observed: "Be that as may, although in our opinion the normal use of the word "restriction" seems to be in the sense of "limitation" and not "extinction", we would on this occasion prefer not to express any final opinion on this matter" and the Court ultimately wound up by
(1) AIR 1954 SC 728 *[Hoer in italics] saying that "whether the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it."
Now I would like to cite the authorities from the Pakistan jurisdiction, They are :-
(1) PLD 1956 Kar. 533 (2) PLD 1957 Lah. 388
(3) PLD 1957 Lah. 676 (4) PLD 1958 Lab. 887
(5) PLD 1958 SC (Pak.) 41 (61 PLD 1964 SC 673
(7) PLD 1965 Lah. 642 (8) PLD 1976 SC 57 74.In the case of Maulana Ahdul Quddus Bihari v. The Chief Commissioner of Karachi (1), the order of externment passed by the Chief Commissioner of Karachi against the petitioner under section 3(1) (C) of the Security of Pakistan Act of 1952 for three months was quashed by the learned Justices Constantine & Muhammad Bachal, JJ. When the petitioner brought a Writ of Certiorari against that order. Reference was made to Khare's case and it was observed at page 535 caption A:- "It is, therefore, our opinion that in so far as the Security Act orn'ts to provide for the furnishing of grounds to an externee and the affording to him of an opportunity of making representation, this Act imposes an universal restriction and to this extent is inconsistent with Article 11 (of the Constitution of 1956) and to this extent is void under Article 4 of the Constitution."
75. In the case of Bazal Ahmed v. West Pakistan Province (2), it was observed :- "There is ample authority for the proposition that in deciding whether any particular law provides for reasonable restrictions on this fundamental right, not only the substantive portion of the law but also the procedural part by which the eventual result is secured has to be scrutinized The Court in such cases has to consider the nature of restrictions, the manner in which they are imposed and their extent, both territorial and temporal, vide Jeshingbhai v. Emperor (AIR. 1950 Bom. 363 (F. B.) )."
76.In the case of Rao Mahroz Akhtar v. D. M. Dera Ghazi Khan (3), similar observations were made at pages 682 and 683 which I do not want to reproduce.
77.In the case of East and West Steamship Co. v. Pakistan (4), it was observed by Cornelius, J. (as he then was) :- "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 consider whether it is a reasonable restraint, in the sense of not bearing excessively on
(1) PLD 1956 Kar. 533 (2) PLD 1957 Lah. 388
(3) PLD 1957 Lah. 676 (4) PLD 1958 SC 41 ' the subject and at the same time being to preserve the public interest."
78.In the case of S. Abul Ala Maudoodi and others v. Government of West Pakistan and others (1), it was observed by Cornelius, C. J. (as he then was) at page 707 4C it is surely within judicial review to examine both as to the reasonableness of the law itself, as well as the reasonableness of the mode of application of the restriction, whether such mode be prescribed by the statute or not" (707)K.
"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 citizens' 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 overflowing 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" (707)L.
' The observations of the learned Chief Justice at page 708 caption M' are also important.
79.In the case of Arasrullah Khan v. D. M., Lahore (2), it was observed that the fundamental rights are not absolute but are subject to reasonable restrictions. Justice Muhammad Akram, J. (as he then was) referred to :- Daisy Bates v. City of Little Rock (3), in which it was observed :- "Freedom of speech and Press and freedom of association for the purpose of advancing ideas and airing grievances are Constitutionally protected not only against heavy handed frontal attack, but also from being stiffled by more subtle governmental interference."
In that case the learned Judges cited with approval the following dictum of the Supreme Court of the United States of America laid down in National Association for Advancement of Coloured v.
Alabama (4).
"This Court has recognized the vital relationship between the freedom to associate and privacy of one's associations Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association particularly where a group espouses dissident belief."
80. In the case of Islamic Republic of Pakistan v. Abdul Wall Khan (5).
(1) PLD 1964 SC 673 (2) PLD 1965 Lah. 642
(3) 361 U S 516 (4) 357 U S 462
(5) PLD 1976 SC 57 ' Justice Hamoodur Rehman, C. J. Of the Supreme Court of Pakistan (as he then was) observed at page 103:- "In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of action proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power"
(Underlining is mine).
It was observed at page 188 :- "The Court cannot presume to direct the Legislature to make or unmake a law. It can only strike down the law if it is found to be unconstitutional or ultra vices of the powers of the Legislature."
81.I have been very much impressed by the case of Sayyid Abul Ala Maudoodi. This is a very important case from the Pakistan Jurisdiction. In this lucid authority, the following observations deserve a special attention.
' The learned Judge Justice S. A. Rehman (as he then was) was pleased to observe :- "In a democratic set up such as is visualized by our present Constitution, the presence of political parties is regarded as an assential feature so that it is conceivable that the opposition of today may be Government of tomorrow. To place an instrument in the hands of the party in power by which they can effectively eliminate from the political P scene any opposition, without let or hindrance, cannot be held to be P consistent with healthy functioning of the body politics on democratic lines". (Underlining* is mine).
' The observations of Justice Fazle-Akbar are also very important and are reproduced below :- " . . . The very foundation of a Constitutional Government is healthy opposition. Progress of a country depends on a certain extent by the opposition of the new to the old, and in so far as it is within the law, such opposition is recognised a symbol of independent thought containing the promise of progress."
Justice S. A. Rehman, J. Observed at page 733 :- "With respect, it may be observed that although per se restrictions imposed by a statute on a fundamental right may sound reasonable, yet the method of imposing of the restrictions may be so arbitrary that their reasonableness may become illusory."
82. Now we turn to the cases from the Azad Jammu and Kashmir Jurisdiction. The first is the case of Sardar Sikandar Hayat Khan (1).
' Raja Muhammad Khurshid Khan, C J observed at pages 123-124 :- "It is within judicial power to examine both as to the reasonableness of the law itself as well as the reasonableness of the mode of application of the restriction. The reasonableness is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances. Reasonableness would be dependent upon the circumstances which necessitate the taking of such drastic action. If the circumstances do not demand such action LL or the action is disproportionate to the mischief to be prevented the,
(1) PLD 1982 SC (A & K) 112 'Were in italics] restriction is beyond the reason. Reasonableness has to be judged with reference to the prevailing circumstances when a particular evil is sought to be remedied. In this case, no reasonableness justifying the amendment is found. It is a time honoured principle that a law cannot be passed to intermeddle with individual's rights and if it is enacted, so it will be declared as a void instrument.
The Government with unrestricted powers of the Legislature, is not expected to usurp any of the vested rights of a citizen or a Government servant and if it is done, the Courts would aptly come to the help of the affected person."
83.The second case is that of Sardar Muhammad Abdul Qayyum Khan (1). This case is a tall and illuminating great tower of light in the sea of darkness when democracy was at its lowest ebb. I would like to reproduce paras 23 to 27 :- "23. The sum total of our above discussion is that it is the duty of the Superior Courts to see that the Legislature works within its limits and if it fails to keep itself within own Constitutional limits, the Judiciary would step in to enforce compliance with the Constitution. This is no doubt a delicate task which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other state functionaries disregard the limitations imposed upon them or when they claim to exercise power which the Constitution has been careful to withhold from them.
24. Our Legislature or the Government, which functions as lawmaking body in absence of the Assembly, it admits no doubt, has powers limited by the Constitution Act, 1974, which created it and it can do nothing beyond the limits which circumscribe these powers. If the Government or any law-making body, therefore, travels beyond its sphere, and takes steps to legislate on a matter not within its power or legislates in contravention of the Constitution, such a legislation is necessarily to be recalled.
25. In Azad Kashmir, nowadays in the absence of Assembly the opinion of a single person i. e. The President Chief Executive Azad Kashmir prevails and, therefore, it becomes all the more necessary for the Courts to be at guard to see that the authority does not transgress its limits and legislation made by such authority encroaches not upon the rights of the citizens specially fundamental rights which have been enshrined in the Constitution Act.
1974. The opinion of such an authority to prevail against fundamental rights of the citizens over whom the authority is to exercise executive responsibility is not recognized by the Constitution.
26. In view of the state of law, the Courts, when a question arises, must be satisfied about the reasonableness of the law and the Courts, it should be remembered, cannot regard themselves as satisfied that the citizen's freedom has been subjected to a reasonable restriction unless it is established to their satisfaction that not only the grounds of the restriction are reasonable in themselves but they have been applied reasonably as required by the Constitution. The restriction
(1) PLD 1983 SC (A J & K) 95 should be consistent with justice and reason and it should be seen as to whether the condition for its application is established. All these' facts must have a judicial review." (Underlining* is mine)
85. All the above authorities show that the High Court has to see :-
(1) The reasonableness of the law itself ;
(2) The reasonableness of the mode of its application ;
(3) The time when the law was applied ;
(4) The circumstances justifying the passage of law ;
(5) Whether the impugned legislation results into hardships, difficulties or whether it puts spokes into the smooth and efficient working of a democracy .
(6) Whether the law is harsh and passed after full deliberation by a Q Legislature or by a one-man legislature ;
(7) The onus of proving that the restrictions imposed by the Government through Ordinance is upon the Government ; and
(8) In a democratic State, the superior Courts should see that the Legislature and the Executive do not go outside the sphere allotted to them by the Constitution. If any of them oversteps, the High Court shall intervene as a Sential of the Constitution.
' Point No, 5 : Freedom of association, and Public Order.
86. The freedom of Association is mentioned in section 4 (4) (7) of the Interim Constitution Act of 1974. It reads as follows :- "Freedom of association :-Subject to this Act, every State subject shall have the right to form association of unions, subject to any reasonable restriction imposed by law in the interest of morality or public order.
(2) No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or takes part in activities prejudicial or detrimental to, the ideology of the State's accession to Pakistan".
87. The right to form association or Union is subject to restrictions;R imposed by law in the interest of 'morality' or 'public order'. This isiR clear from reading section 4 (4)(7) (I).
88. Now the question arises as to what is meant by Public order and morality. Mallick Muhammad Qayyum, the Deputy Attorney-General, the learned Advocate (on behalf of the respondents, has submitted that the term 'Public order' is very wide and includes the impugned legislation.
According to him, the impugned legislation was justified because the restrictions imposed by the legislation are justified in the interest of public order. The learned Deputy Attorney-General has put so much air in the balloon of public order that this balloon has burst out. I am afraid that. I cannot make the scope of public order wide enough to include the impugned legislation therein. Mr. Mallick M. Qayyum has referred to the case of Raghubar Dayal v. Union (1) and Mr. Manzoorul Hassan Gilani, Advocate has referred the case of Damyanti v. Union (2). In the case of Dayal, the restrictions imposed on association doing business in forward contracts were upheld. Sections 5, 6 and 10 Forward Constructions (Regulation Act) of 1952 were impugned as violative of Art. 19 (1) (c).
Gur was outside the
(1) AIR 1962 SC 263 (2) AIR 1971 SC 966 *Mere in italics) ambit of the impugned Act but as a result of restriction Gur was brought within its ambit. The petitioner contended that if the object of association was lawful no restriction could be placed upon it except in the interests of public order and morality. In rejecting this argument, the Court held that reasonable restrictions could be imposed in the public interest on such trading and that it was a matter for the legislative judgment what instrument should be chosen in dealing with Forward contracts.
89. As far as the case of AIR 1971 SC 966, is concerned, the Supreme Court of India decided many important questions as to the right to form associations :-This case helps Mr. S. M. Zaffar (Please see the lines underlined*). . . . The facts of the case were briefly these : The Hindi Sahitya Sammelan was a society registered under the Societies Registration Act, 1860, with the principal object of developing and promoting the propagation of Hindi. The Sammelan's bye-laws provided for three classes of members, and for constituting a governing body, a working committee and several other committees. The Sammelan owned lands and buildings at various places. The U. P. Legislature passed the U. P. Hindi Sahitya Sammelan Act, 1956, under which a statutory body was created called the "Hindi" Sahitya Sammelan." The High Court declared the Act void on the ground that it terminated the existence of the original Sammelan, and thus violated the right of members of the original Sammelan to form associations guaranteed by Art. 19 (1) a). Thereupon, Parliament, purporting to act under entry 63 List 1, Sch. 7, enacted the Hindi Sahitya Sammelan Act, 1962, which declared the original Sammelan to be an institution of national importance, and vested its property in a new Sammelan which was constituted a body corporate. All the existing members of the original Sammelan were made members of the new Sammelan ; but many outsiders were also made members by the Act. The rules framed under the Act prescribed qualifications for enrolling new members, who could be admitted without the voluntary consent of the original members of the Sammelan. The Court held that the guaranteed right to form associations was not limited merely to the initial stage of forming an association, for then that right could be rendere nugatory by a law. Passed after the association had been formed, which violated that right. The right to form an association carried with it the right to continue to be members of that association, and the further right of not being compelled to have members forced upon the associations without the volition of its members and the right not to be associated with persons with whom the members of the association did not want to be associated. "(Any) law altering the compoition of the Association compulsorily will be a breach of the right to form the association." On a careful examination of the provisions of the Act and the rules, the Supreme Court held that the Act was void as it violated this composite right. Damyanti's case lends support to the submissions made in para. 10-104 above. That the right to form associations involves the right not to form them" (Underlining* is mine).
Mr. S. M. Zaffar also cited this case because it lays down the rule that the right to form an association means also its continuation. The Supreme Court of India has introduced a New Doctrine after 1974, i. e. After the *Mere in italics] decision of E. P. Royappa's case (1). This case was followed by Maneka Gandhi's case (2). The case of a refusal of a passport, in the Airport case (3) and Hasia's case (4). All the above-mentioned cases pertain to the freedom of "equality before law", under Article 14 of the Indian Constitution. But the fact remains that the Supreme Court of India has liberalized its attitude regarding the fundamental rights and therefore, the cases cited by Mr. Mallick before me which pertain to the period prior to 1974, do not lay down the correct law enunciated by the Supreme Court of India. The new doctrine applied to the equal protection of law is also applicable to the right of association. Therefore, both the cases cited by Mr. Mallick Muhammad Qayyum, the Deputy Attorney-General, the learned Advocate on behalf of the respondents and Manzoor-ul-Hassan Gilani Advocate are distinguishable.
90. I reproduce a portion from the case of Ajay Hasia v. Khalid Majib, from page 272 by the Constitutional Law of India by H. M. Seervai, Third Edition Vol. 1 :- "The true scope and ambit of Article 14 has been the subject matter of numerous decisions . .. . It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where classification making the differentia (sic) fulfils two conditions namely (i), that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation ,o the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E. P. Royappa v. Stale of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that Article has highly activist magnitude and it embodies a guarantee against arbitrariness . We cannot countenance, any attempt to truncate its all-embracing scope and meaning, for to do as would be to violate its activist magnitude. Enquality is a dynamic concept with many aspects and dimensions and it cannot be `c,.Ilvd, ca)ined and confined' within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies ; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Artizles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment (italics supplied).
" Now . . . . (as to) the requirement of Art. 14 ; what is the content and reach of the great equalizing principle enunciated in this
(1) AIR 1974 SC 555 (2) AIR 1978 SC 597
(3) AIR 1979 SC 1628 (4) AIR 1981 SC 487 article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And therefore, it must not be subjected to a narrow, pedantic or lexicographic approach.
No attempt should be made to truncate its all-embracing scope and meaning for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence. This was again reiterated by this Court in Internasional Airport Authority's case ' It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore, constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. (italics supplied). The claim made by Bhagwati, J. And his brother Judges of having laid bare a "new dimension" of Article 14 is hereafter referred to as the "new doctrine". *(Underlining is mine).
91. The leading case as regard to the freedom of association is the case of V. G. Row (1). We have discussed this authority at some other place in connection with the reasonableness of a restriction.
92. The expression Public Order has reference to the maintenance of conditions where under the 'orderly functioning of Government can be carried on. It is tile duty of Government to see that the lives, properties and liberties of the citizens are not thrown into jeopardy. "Public Order" is wider than 'Public Safety' and implies absence of internal disorder, rebellion, a lack of interference with or obstruction to the supply or distribution of essential commodities or services. Security of state involves something more than the maintenance of public order the latter term having exclusive reference to the creation of internal conditions with a state which make it possible for .-he state to carry on its duties, and discharge its functions. Security of State implies also an 'external reference, such as immunity from war, of external aggression, avoidance of unfriendly relations with the neighbouring states, etc.
93. Mr. S. M. Zaffar, the learned counsel for the petitioners referred to the case of Ram Manohar Lohia v. Bihar (2) :- ' it was held unanimously that the President's order suspended the enforcement of a person's rights under Articles 21 and 22 if he had been deprived of those rights by an order passed under the defence of India Act, 1962, or the rules made thereunder.
(I) AIR 1952 SC 196 (2) AIR 1966 SC 740 *[Hers in italics)
' But it was open to him to show that the order under the said Act and rules was a mala fide, or an invalid order, and in either event, he was entitled to move a Court for the enforcement of his rights under Articles 21 and 22. However, on the validity of the impugned order the Court was divided 4 to
1. That order recited that the District Magistrate, Patna, was satisfied that "with a view to preventing (the petitioner) from acting in any manner prejudicial to public safety and the maintenance of law and order, it was necessary to make an order that he be detained". The Magistrate accordingly made an order of detention. The petitioner impugned the order on several grounds, including mala fide, and the District Magistrate filed an affidavit in reply, setting out the circumstances under which the order came to be passed. It was contended that under section 3 of the Defence of India Act and rule 30 of the Defence of India Rules the petitioner could not be detained "for the maintenance of law and order" but only "for the maintenance of public order." But as the order was made on two grounds, one of which was within, and the other beyond, power, the whole order must be struck down as it was not possible to say which of the two considerations led to the subjective satisfaction of the District Magistrate in passing the order. The majority upheld this contention.
According to the majority, the word "public order" in the context of the section and the rule meant "grave disorder", and the maintenance of law and order was not limited to dealing with grave disorder, though in some cases grave disorder may fall within the maintenance of public order. It would appear that in construing the order, the majority considered it impermissible to look at the facts set out in the affidavit of the District Magistrate and the note which he had made before the order of detention was passed."
(Constitutional Law of India, M. H. Seervai, Third Edition, Vol. II).
94. Mr. Mallick has also referred to the case of Ramji Lal Modi v. State of U. P. (1), wherein it was held that the language employed in the amended clause (2) of Article 19 of the Indian Constitution makes the ambit of the protection 'very wide. The words: "in the interest of" are wider than the expression "for the maintenance of".
95. The argument of the learned Mallick Muhammad Qayyum is that the impugned legislation should be protected because the restrictions imposed by section 8-A are reasonable restrictions which have seen imposed "in the interest of public order".
96. That was case in which the impugned section 295-A of the Indian Penal Code fell well within the protection of clause (2) of Article 19 and therefore the writ petition under section 32 of the Constitution of India failed. The petitioner had sought to quash his conviction under that section of the Penal Code. The petitioner, who was the Editor, Printer and Publisher of a monthly magazine was sentenced to 18 months' R. I. And a fine of Rs, 2,000 was also imposed upon him because he had published an objectionable material which tended to spread religious hatred. But these Indian authorities are not applicable to the instant case because the words used in those authorities were ".In relation to" while in our Constitution the words used in section 4(7) are "in the interest of".
(1) AIR 1957 SC 620
97. Mr. Mallick has also referred to the case of Virendra v. The State of Punjab (1), wherein the validity of sections 2 and 3 of the Punjab Special Powers (Press) Act of 1956 came into consideration, under which Notifications were issued against two petitioners as the editors, printers and publishers of two newspapers : Daily Pratap and Vir Arjun.
98. The words "In the interest of Public Order" occurring in Articles 19(2) and 19(6) were discussed and it was observed in para. 9 : "Learned counsel then urges that assuming these sections impose only restrictions they are, nevertheless, void as being repugnant to the Constitution, because the restrictions are not reasonable. As regards the right to freedom of speech and expression guaranteed by Article 19(1)
(a) it is qualified by Article 19(2) which protects a law in so far as it imposes reasonable restriction on the exercise of the right conferred by Article 19(1) (a) "in the interests of public order " Likewise the right to carry on any occupation, trade or business guaranteed by Article 19(1) (a) is cut down by Article 19(6), which protects a law imposing" in the interest of the general public "reasonable restrictions" on the exercise of the right conferred by Article 19(I)(a). As has been explained by this Court in Ranji Lal Modi v. )tate of U. P. AIR 1957 SC 620, the words "in the interest of" are words of great aptitude and are much wider than the words "for the maintenance of".
' The expression "in the interest of" makes the ambit of the protection very wide, for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it may have been enacted in the interests of "the public order or the general public as the case may be".
99.In that case, the Writ Petition No, 96 of 1957 which challenged the impugned legislation (section 3) was allowed. I fail to understand how this authority helps the respondents. If this authority was cited to show as to what is meant by "Public Order", then of course, it is relevant.
100.I have considered these cases but they are also distinguishable because these decisions pertain to a period which falls before 1974.
101.In Lohia's case (2), it was observed : "The connection contemplated between restriction and public order must be real and proximate and not far fetched OTT problematical."
102.Therefore, I can say with confidence that a far-fetched connection of a restriction with public order cannot be taken into consideration.
103.In the case of B. K. Ghosh v. E, X. Joseph (3), the words Public Order were discussed in paragraph No, 10 which is reproduced as under : - "The words "public order" must have the same meaning in both v clauses (2) and (4) of Article 19. In clause (2), public order V is virtually synonymous with public peace, safety and tranquility. V The denotation of the said words cannot be any wider in V clause (4).
(1) AIR 1957 SC 896 (2) AIR 1960 SC 633
(3) AIR 1963 SC 812 A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection, between the restriction and public order would not fall within the purview of the expression "in the interest of public order". This interpretation is strengthened by the other requirement of clause (4) that, by itself, the restriction ought to be reasonable. A restriction which does not directly relate to public order cannot be said to be reasonable on the ground that its connection with public order is remote or far-fetched. Therefore, reading the two requirements of clause (4), it follows that the impugned restriction can be said to satisfy the test of clause (4) only if its connection with public order is shown to be rationally proximate and direct. AIR 1960 SC 633 and AIR 1950 FC 67, rel. On."
104. The meanings of public order are mentioned in PLD 1957 Lah. 213 (217)13 : and of morality in PLD 1958 Lah.
929.
I need not reproduce from those Pakistani authorities and would simply like to refer to them.
105. However, I would like to reproduce from the case of Ram Manoher, Lohia (1) :- "Public Order' public order' in the present context, is synonymous with 'public peace, safety and tranquility'. It follows that-
(A) In the interests of public order, the State may impose restrictions on-
(a) The incitement of- (0 Withholding of services by public employees or by persons engaged in any employment which is essential for securing the public safety or for maintaining services essential for the life of the community, or by members of the police forces.
(ii) Committing breach of discipline amongst employees of the class referred to above.
(ii) Feelings of enmity or hatred between different sections of the w community, or insulting their religious feelings.
(b) The use of loudspeakers likely to cause a public nuisance, or to affect the health of the inmates of residential premises, hospitals and the like.
(B) On the other hand, the following cannot be restricted or penalised in the interests of 'public order'- Advocacy of non-payment of Government dues without resorting to violence.
106. Now I would like to mention as to what are the statutory limitations on the freedom of association in Azad Jammu and Kashmir and I whether these limitations can be taken away by the impugned legislation.
107. I have already discussed that the freedom of association is a constitutional right and the statutory limits restricting this right must be ,Y reasonable. A perusal of the Azad Jammu and Kashmir History shows it' I that restrictions came for the first time in the shape of Political Parties Ordinance of 1979 in 1979 A. C. Which is a child of Political Parties Act of 1962 of Pakistan. There is a long list of those limits and I need not
(1) AIR 1960 SC 633 reproduce or discuss them because I am only concerned with the impugned legislation. I can only say at this stage that these statutory restrictions have been increasing since 1979 and now in 1985 this list has become a lengthy one. I am not concerned as to why our freedom of association has been gradually limited more and more but one thing is well-known that these restrictions were imposed by a Government which was not democratic in character. Although there was no Martial Law in Azad Jammu and Kashmir and the fundamental rights were kept intact, yet many limitations were imposed on the freedom of association. The Constitution says that if these limitations on the freedom of association are placed in the interest of public order or morality, then they are justified and if those limits are not placed in the interests of public order and morality, they are not justified. I have considered all these limits brought by the Political Parties Ordinance of 1979 and by the Ordinances passed subsequently. My view is that most of the restrictions introduced and A brought in by the Political Parties Ordinance of 1979 are reasonable, but ;: A the restrictions brought by the impugned legislation are not reasonable and, therefore, they are not protected by the Constitution.
108.I have considered the point that the law should be saved, an that there is always a presumption in favour of the constitutionality of statute. There are so many American, Pakistani and Indian authorities in support of this view :- A: Authorities of Pakistan PLD 1950 FC 17 ; PLD 1957 Kar.
320. B : India :AIR 1958 SC 578 Para. 175 C: Authorities from AJ&K;PLD 1975 Azad J & K 69 (80) J D : Maxim All things are presumed to be done right PLD 1975 Azad J & K 104(105) B.
109.Now I come to the point No,
9. What is meant by the words C to "Form an Association" (political party) and whether the formation of an association also means the continuation of an association (political party).
110.Mr. M. S. Zaffar, the learned Counsel for the petitioners, has argued that the formation of a political party also includes the continuation of a political party because the word "formation" also means and includes continuation. His precise argument is that the word "form" refers not only to the initial formation but also to its continuation thereafter. It includes both the formation as well as the continuation of a political party. In this connection, he has made reference to the Indian Constitution by Basu page 50 last line and p.
51. He referred to AIR 1951 Mad. 146 (Para 88 at page 179) and laid stress on the words "as such". He also referred to the Constitution of India by Shukala, AIR 1971 SC 966 and PLD 1964 SC 673 (764).
His submission was that the formation of a political party is complete only when it is allowed to do for what it is formed to get into the Legislative Assembly, to pursue its policies and, if possible, to get into power and amend the Constitution. Section 8(A) is interfering with the petitioner's political activities and . Debars them from acting as political parties. The definition of a political party is given in the Political Parties Ordinance. PLD 1969 SC 673 (692) was also referred to. A Political Party is also defined in the Book "Words and Phrases" by West Publishing Co. And it also occurs in Encyclopaedia Britannica,
111. Mr. S. M. Zaffar, the learned counsel for the petitioners, also submitted that the political parties are formed which are regional parties as they are not prohibited by the Constitution. The impugned legislation would not allow the regional parties to work as the Constitution disallows regional parties. Therefore, my view is that the impugned legislation take away the freedom of association which is enshrined in section 4(7) of thee, Constitution and the Legislation which takes away this important funda-D mental right or any other fundamental right is quite inconsistent with D section 4 of the Constitution and as such is bad and void.
112. Now I come to the point No, 10 whether the matter of deregistration is purely a statutory matter and as such does not violate any fundamental right at all. My reply is that the matter of deregistration under section 8(A) of the Political Parties Ordinance of 1985 is violative of the fundamental "right of association". It is very strange that two lady M. L. As, who have been elected by the 40 elected M. L. As. From Azad Kashmir, including the 10 petitioners, would continue as M. L.
As, in the Azad Jammu and Kashmir Legislative Assembly while the 10 M. L. As (petitioners) belonging to two different political parties :-
(1) Tehrik Amal Party
(2) Azad Jammu and Kashmir Muslim Conference would be ousted from the legislature by operation of the impugned law. Moreover, the Jammu and Kashmir Liberation League has not been registered as a political party and it was allowed by the Chief Election Commissioner to contest election without being registered. So the situation is this : that an unregistered political party shall continue as it has secured the percentage of the votes required by law and the registration of two political parties will be cancelled and their 10 members (M. L. As) shall have to vacate their seats and new elections will be held to fill up those 10 seats. It is again discrimintory and unjust that only two parties shall be allowed to contest for those 10 seats. However, some independent candidates may also contest from those 10 constituencies. The re-election will be burdensome on the Government Exchequer and the voters shall have again to go to polls unnecessarily for no fault on their part and some of them may break their bones if not their heads during the re-election.
113. Now I come to the pivotal points Nos. 11 and 12 and I propose to dispose them of together.
114. Point No, 11 is about the deregistration of the two political parties to which the petitioners belong.
The Point No, 12 is whether the impugned legislation is violative of the fundamental right contained in section 4(4) (7) of the Azad Jammu and Kashmir Interim Constitution Act of 1974 and is liable to be declared void under section 4(4) (7) and (2) of the Constitution.
I have fully discussed the pros and cons of the impugned legislation, have considered arguments addressed at the Bar from both sides and after due consideration of the impugned legislation, I am of the view that the impugned legislation is violative of the fundamental right 4(4) (7) of the Interim Constitution Act of 1974 and as such is void to that extent.
An argument was advanced that the impugned legislature is reasonable because it has got an element of Proportional Representation in it. There is no doubt that some sort of ' Proportional Representation is followed in certain European Countries but the concept of the Proportional Represent-G lion is difficult to understand and it has got some novel features which must be understood before some opinion is expressed on it. In the paragraphs following hereafter I propose to discuss the system. I am aware of the fact that my judgment has become lengthy but I cannot avoid it. I am sorry for this digression.
115.The impugned legislation has got an element of Proportional Representation (P. R.). There are certain countries where the P. R. Is in vogue. In our Constitution, the members of the Azad Jammu and Kashmir Council are elected by the 42 M. L. As. Of Azad Kashmir. The argument of Mr. Mallick is that although the M. L. As. Of Azad Jammu and Kashmir are elected directly by the voters from single member Constituencies yet some sort of partial P. R. Is permissible and it is not necessary that there should be multimember Constituencies for P. R.
116.I have considered the argument. P. R. Presupposes multimember Constituencies and the impugned legislation has brought a portion of P. R. Not the whole of it. We have got thus a system which is.
117.The main object of the P. R. Is to secure the adequate representation of small political groups which cannot otherwise enter the Legislature and voice their feelings and grievances and participate in the legislation. The impugned legislation throws out two political parties outside the Azad Jammu and Kashmir Legislative Assembly, thereby defeating the aims and objects of the P. R.
Two lady M. L. As have been chosen and the petitioners have participated in their election. The impugned legislations now proposes to oust 10 out of 42 M. L. As. From the Azad Jammu and Kashmir Legislative Assembly.
118.I would like to say something about the classification of modern states and show in which countries the P. R. Exists and what are its advantages and disadvantages.
119.C. F. Strong has given the following table of Classification of modern Constitutional States in his book "Modern Constitutions" 1966 Edition at page 77 :- {{TABLE}} "Classification of Modern Constitutional States Ground of Division First type Second type The nature of the state to which Unitary Federal or quasi- the Constitution applies Federal The nature of the Constitution itself Flexible Rigid (not neces- (not necessarily sarily fully written unwritten)
The nature of Legislature (i) (a) Adult suffrage (b) single member Constituency, (ii) Non-elective second Chamber Multiple member Constituency.
Elective or partially elective second Chamber 1 2 3 The nature of Executive Parliamentary The nature of Judiciary Sauject to tne Rule of Law (in common Law States) Non-Parliamentary Under Administrative law (in Prerogative states) {{TABLE}}
120. C. F. Strong says at pages 69-70 and 71 :- "Thus we may make a triple approach to the classification of Constitution from the point of view of the Legislature. First we may divide legislatures on the ground of the electoral system by which voters choose the members of the Lower House or of the only House in unicameral systems. Under this heading come the two questions of franchise and constituency
(a) As to the Electoral System
(i) Kinds of Franchise ' First, with regard to the electoral system, constitutional states, now fall broadly into two kinds, namely, those which have adult suffrage and those which have qualified adult suffrage. By adult suffrage is meant the possession of the right to vote by all adults both male and female, above a certain age, on equal terms, and without qualification, apart from the usual disenfranchisement of criminals, lunatics and so forth. Adult suffrage generally includes the right to stand for election as a member of the Legislature, although the age for candidature is sometimes higher than that for voting
(i) Nature of Constituency.
' The nature of the Constituency provides a further basis of distinction, from the point of view of the electoral system among existing constitutional states. This distinction is between those States in which the constituency returns several members. The latter is generally known as Proportional Representation, the object of which is to secure the representation of minorities which are otherwise voiceless in the elected assembly. .
' The writer says at page 78 "In short, Britain is a unitary state with a flexible constitution, a legislature elected on adult suffrage, with single-member Constituencies the United States is a federal State with a rigid Constitution, a legislature elected on adult suffrage; with single member Constituencies, an elected second Chamber without direct popular checks on the Federal Legislature and a non-parliamentary executive subject to the Rule of Law"
' The same writer has at pages 183-187 discussed the Multi-member Constituency :- "Many States have now either incorporated into their existing political systems, or made an integral part of a new Constitution, the electoral system called Proportional Representation. But this term means very little. Taken by itself, since there are many versions of P. R. 1 (as it is commonly called) almost as many, in fact, as there are States which have adopted it and many more in theory. But all the variations have at least one common factor, which is, indeed indispensable to this method of voting ; it is that no system of Proportional Representation can be properly *worked on the basis of a single member Constituency, under a system of P. R. The object of a candidate is not to gain a majority, as it is ordinarily understood, but to reach what is called a quota i. e. In its simplest form, a number of votes equal to the total of votes cast divided by the number of seats to be filled . . . . . . . .
Under the Fifth Republic France reverted to single-member Constituencies. "
' At page 187 C. F. Strong writes :- `Most of the Constitutional States of Western and Northern Continental Europe have adopted some form or other of P. R. Indeed, some of them introduced it as far back as the nineteenth Century, while all the States newly formed after the First World- War included it in their Constitutions. Today it is used in Belgium for the election of members of the Chamber of Deputies as well as for the part of the Senate which is directly elected ; in Denmark for the elections of the Folketing (unicameral Parliament) in Norway for the Lower House, in Sweden ; and the Netherlands for both Houses." We find it in Finland, Italy, Switzerland, and Western Germany.
' There are certain defects in the P. R. It leads to instability by tending to bring to the Legislature a number of small groups thus necessitating fragile coalition governments which fall whenever one section of opinion in them is outraged. C. F. Strong says at page 190 :- "It is not without significance that the two great States in the World have not yet tried P. R., namely the United Kingdom and the United States, are the only two where the tradition of two large opposed parties have always been strong..."
113-A. The whole discussion shows that the Proportional Representation is not followed in two great powerful States which are now-a-days the leaders of the World i. e. Russia and America. This system was tried and given up in France. The Proportional Representation leads to instable Governments and unnecessary shifting of Cabinets "replastering" Under these circumstances, if the impugned legislation is justified on the H ground of Proportional Representation and its advantages, I am sorry I cannot accept that argument.
114. My reasons are the following:-
1. Section 8-A of the Political Parties Ordinance XII of 1985 and I section 5(2,(xii) of the Azad Jammu and Kashmir Legislative Assembly / (Elections Ordinance of 1970 are the grandchildren of the Criminal Law t Amendment Act of 1908 which law was passed by the British Colonial power which ruled the sub-continent of Indo, Pakistan with iron hands right from 1857 when the British Government assumed power from the 24 Directors of the East India Company `Bahadue. The British Government was afraid of the All India Congress which came into existence in 1885 and the All- India Muslim League which was established in 1905, The Britishers wanted to curb and curtail the political activities and wanted the Political parties of the then undivided India to behave properly. It is very strange that the Criminal Law Amendment Act of 1908 remained on the Statute Books of India and Pakistan with some modifications till very late after the Independence but the Superior Courts of India and Pakistan always maintained and upheld the dignity of law and the rule of law and quashed almost most of the illegal orders passed under that enactment, whenever they or actions thereunder, were challenged. The action against the Jamaat-i-Islami was also taken up under that very notorious law and the Supreme Court of Pakistan in its judgment in M. Abul Ala Maudoodi's case, held that the notification of the 6th January, 1964, under section 16 of the Criminal Law Amendment Act of 1908, declaring the Jamaat-i-Islami an unlawful association was illegal and void for violation of the Fundamental Right of Association under the Constitution of Pakistan.
The Government was directed to cancel and withdraw the said notification.
' Political Parties Act of 1962 is a child of the Criminal Law Amendment Act of 1908. This Act of 1962 was passed by the Government of Field-Martial Muhammad Ayub Khan who was himself 'pleased' to give a Constitution to Pakistan which is called the Constitution of 1962. The political parties were revived but as done by Britishers, their democratic functioning was controlled. Ayub Khan brought the notion of controlled democracy and therefore the curtailment of political activities is understandable. It must be remembered that when the Political Parties Act of 1962 was promulgated, the Fundamental Rights were not justiciable. The Fundamental Rights contained in the Constitution of 1962 were made justiceable in 1963.
' The Ordinance of 1979 is the child of the Political Parties Act of 1962 as its' aims and objects were the same which were the aims and objects of the Political Parties Act of 1962. This Ordinance (which is being repeated after every four months in Azad Jammu and Kashmir) was promulgated by the then President of Azad Jammu and Kashmir. Therefore, it is clear that the present impugned Ordinance of 1985 is the grandchild of the Criminal Law Amendment Act of 1908. If the grand-father was illegitimate, the grand-child is also illegitimate because none of the two was passed by a democratic Government. Even the father of the present impugned legislation was not passed by a full-fledged democratic Government. In the last decades of the Twentieth Century when the rays of the light of democracy have reached even in the remote corners of the most backward countries of the Dark continent (Africa), such a legislation is anachronism and should be kept as a relic of the past in the newly-established Museum in the Red Fort of Muzaffarabad. It is really a disgraceful piece of legislation in a country the valient people whereof won its freedom from the Dogra rulers by Jehad and who have still to liberate the other part of their fair motherland which is under the occupation forces of Bharat.
2. The impugned legislation conflicts with section 4(6) 4(7) of the J Interim Constitution of Azad Jammu and Kashmir and is therefore inconsistent and void to that extent. The other provisions of the J impugned legislation are left intact as they are severaole from rest of the provisions of the impugned legislation. I have discussed this point at great length in the body of my judgment;
3. The impugned legislation was not passed by the elected representa-j tives of the Azad Jammu and Kashmir people. They were introduced in Azad Kashmir by one-man Legislature in the shape of Ordinances. The Ordinances are no doubt law but they cannot be equated with the legisla-ix tion passed by the Parliament or Legislative Assembly of a country) because they are temporary laws, passed when the Legislature is not in session and are placed before the elected representatives (Parliament or Assembly) when the Legislature is in session. It is then upto the Legislature to pass or reject that law. The impugned legislation was not discussed in the Azad Jammu and Kashmir Assembly and the pros and cons were not and could not be considered by the one-man Legislature. It has, therefore, got no sanctity.
4. According to the dictum of the Supreme Court of Azad Jammu and Kashmir in PLD 1983 SC (A J & K) 95 (para. 26) : "In Azad Kashmir, now-a-days in the absence of Assembly the opinion of a single person, i. e. The President/Chief Executive Azad Kashmir prevails and, therefore, it becomes all the more necessary for the Courts to be at guard to see that the authority does not transgress the limits and legislation made by such an authority encroaches not upon the rights which have been enshrined in the Constitution Act, 1974. The opinion of such an authority to prevail against fundamental rights of citizens over whom the authority is to exercise executive responsibility is not recognized by the Constitution."
It is, therefore, that as the guardians and sentinels of the ConstitutionI-1, we propose to strike down the impugned legislation of one-man IL Legislature.
4. According to Asma Jilani's case (1) the learned Yaqoob Ali (as he then was) himself indirectly ruled out the view that a law can be made by an individual in a democratic State. His observation on the specific point is that:- "The will of the people now-a-days often expressed through the medium of Legislature comprising of the chosen representatives of the peoples; the will of a single man howsoever laudable or sordid is a behest or a command but is, certainly not a law as understood in juristic sense".
' The learned Judge of the Peshawar High Court, Shah Abdur Rashid, J. Has observed in PLD 1982 Pesh. 1(8) that: "The law making in a democratic State is not the function of one individual. It is of the chosen representatives who after meeting together by majority make law."
There is no martial law in Azad Jammu and Kashmir where Fundamental Rights are intact. It would have been much better for the President/Chief Executive to leave the impugned law to be passed or not by the Legislative Assembly which was to be elected soon. The impugned legislation was a matter of great public importance and it should have not been passed by a Government which was expected to hand over its charge to a new democratic Government which was expected soon after the elections.
5.The impugned legislation was passed in unchaste haste. Section 41 says that an Ordinance is to be passed by the President when he is satisfied that circumstances exist. Now it is well known that this satisfaction was not made on some solid facts and reasonable data.
(1) PLD 1972 SC 139
6. The impugned legislation stifles the activities of political parties which cannot get a certain number of votes or percentage thereof. Political Parties are very much essential for the smooth working of a democracy. To form an association also means its continuation as it is very clear from the following authorities:-
1. AIR 1951 Mad. 147, para. 88 : "The right of association presupposes organization and a relation to some permanence between these persons" (Wills)
' The word 'form' therefore, must refer not only to the initial commencement of the association, but to the continuance of the association as such.
(Page 179)
(2) AIR 1952 SC 196
(3) AIR 1962 SC 171
(4) AIR 1963 SC 812 (Ghosh's case)
(5) Wherein it was held, inter alia, that the guaranteed right to form associations was not limited merely to the initial stage of forming an association for then the right could be rendered nugatory by a law passed after the association had been formed, which violated
(6) that right. The right to form an association carries with it (7) the right to continue to be members of that association (Seervai) Vol. I-
(8) The impugned legislation guillotines the right of continuation of an NN association and therefore it offends the section 4(4)(7) of the Azad Jammu NNN
(9) and Kashmir Interim Constitution.
(10)8. Political parties are recognized by Islam. Dr. Javid Iqbal hasp()
(11)written in his article 'Islamic State'-an ideal and reality PLD 198310 (12)Journal 91 (96) :-
(13) AIR 1971 SC 966 "Ibn Ishaq in his Biography of the Holy Prophet (p.b.u.h.) written within 70 years of his death provides an accurate picture as to how the first successor of the Holy Prophet (p.b.u.h.) Muslims of Medina formed three distinct political groups e. g. Mohajrin (Immigrants), Ansar (Helpers) and Banu Hasham (the supporters of the Family of the Holy Prophet p.b.u.h.). The Immigrants were led by Abu Bakr and Umar, the Helpers by Saad Ibn Ubaida, whereas the supporters of the Family of the Holy Prophet were solidly behind Ali".
"Political Parties" are voluntary associations of electors having an organization and committee and having distinctive opinions on some or all of the leading political questions of controversy, and attempting through their organization to elect officers of their own party faith and make their political principles the policy of the Government, and are governed by their own usages and establish their own rules Cooper v. Cartwright (1) :
9. As I have already mentioned elsewhere that the Freedom of Association under section 4 (4) (7) of the Interim Constitution Act of 1974 protects the political parties in Azad Jammu and Kashmir subject to the provisions of the Political Parties Ordinance of 1985 (which came for the first time in the Government of Maj.-General (Rtd) Muhammad Hayat
(1) 195 Pzd 290, 294, 200 OKI 456 Khan who is now the President of Jammu and Kashmir Tehrik-e-Ammals Party). Leaving the impugned legislation, the Political Parties Ordinance's brings certain reasonable restrictions and aims at bringing good, pious talented and able M. L. As. In the Azad Jammu and Kashmir Legislative s Assembly.
According to Lord Bryce, "Parties are inevitable. No free large country T has been without them. No one has shown how representative Government could be worked without them. They bring order out of chaos of 2- multitude of voters."
' Pakistan was created by All-India Muslim League whose chief leader was Quaid-i-Azam Muhammad Ali Jinnah, the Father of the Nation. Quaid-i-Azam, being a true democrat, believed in the Parliamentary form of the Government which presupposes the existence of political parties.
' Unfortunately, when the politicians were relegated to the background and the bureaucrats captured power in Pakistan, the Political parties were opposed. The first opposition came from the President Muhammad Ayub Khan who is believed to have observed thus 'Political Parties have been our bane in the past'. However he allowed in 1962 the political parties to re-appear and placed certain limitations under the Political Parties Act. Two explanations have been given for this change: One view is that he became conscious of the fact that for maintaining his hold under the Constitution of 1962 it was absolutely necessary for him to have a political party of his own to strengthen his hands.
' In 1964, the Major Party in Pakistan was the Muslim League which called itself Conventions in order to distinguish itself from other groups of Muslim League. The Communist Party and the Jamaat-i- Islami were banned. Recently the President of the Islamic Republic of Pakistan General Ziaul Hague, has been pleased to hold general elections as a result of which now a Civil Government has been set up in the Centre with Mr. Muhammad Khan Junejo as the Prime Minister.
' The National Assembly and Senate are now functioning. The political groups are emerging and I believe the Political Parties shall be able to reassess their existence.
' In Azad Jammu and Kashmir the political parties are functioning with certain limitations imposed by the Azad Jammu and Kashmir Political Parties Ordinance. At present the representation of the various political parties in the Azad Jammu and Kashmir Legislature (Assembly) is as under:- Muslim Conference- 20 Liberation League- 4 Tehrike Ammal (Party)- 9 Independents - 7 Azad Muslim Conference- 2 Total: 42 ' In the elections of April and May, 1962 the voters were Bask Democrats. Their number was small and therefore, they could be easily influenced in many ways. The new experiment produced "Government for the people by the bureaucratic elite" General Yahya Khan came after F.-M, Muhammad Ayub Khan and the elections were held in which Awami League of Mujibur Rehman got a majority but the power was not transferred to him. Mr. Z. A. Bhutto whose Peoples Party got a majority in West Pakistan became the President of Pakistan after a deadly War between India and Pakistan whereby the East Pakistan was separated and became Bangla Desh.
' We are not going to discuss why Jamaat-i-Islami was banned al. One time and why N. A. P. Was got dissolved later on. Another Martial Law dissolved all the Political parties and the political activity was banned. Now again political activities have started.
10. Political parties exist in all the modern democratic States and their activities are not subjected to the Legislation like the one which is League created Pakistan and the illustrious Father of the Nation, Quaid-i-Azam sub judice before us. Islam does not permit such an ouster of 10 M. L. As. 7' duly elected by the Muslim voters from their constituencies. Muslim Azam Muhammad Ali Jinnah could never imagine that in his Pakistan, the Political Parties Act of 1962 would be enacted. He could never imagine that a time would come when in Azad Jammu and Kashmir, section 8-A of the Political Ordinance of 1985 would come in the shape of an Ordinance.
10. We are Muslims and in Azad Jammu and Kashmir, no law can be passed which is repugnant to the Holy Qur'an and Sunnah (section 31(5) of the Interim Constitution). Now, when we glance at the Interim Constitution Act of 1974 it favours the Parliamentary form of the Government wherein the Executive is responsible to the Azad Jammu and Kashmir Legislative Assembly and where there are single member constituencies for the 40 M. L. As. To be elected on the adult franchise. My argument is that please do not change that form of Government, do not change its shape and pattern and make no new experiments in Azad Jammu and Kashmir. The Parliamentary form of the Government was given to Pakistan by the Father of the Nation and that form of Government was recommended for us in Azad Jammu and Kashmir by the framers of our Interim Constitution.
Section 8-A of the impugned U legislation introduces major changes into our electoral system and this cannot be done by Ordinances.
12. If you want to change the Parliamentary form of Government U either in Pakistan or Azad Jammu and Kashmir, please study the theory of Islamic State. In an Islamic State, the only permissible system of Government is that which is called Khilafat. The Head of the Muslim State is not the President but Khalifa who acts like Khulfae-Rashidin as the Head of the State. There is a Majlise Shoora, duly elected by the people and the electoral law of a Muslim State, does not bring restrictions like those contained in the impugned legislation. The Judiciary is independent. A Muslim Judge is not imprisoned as it happened with Coke in England simply because the Judge decided certain cases after full and due deliberation against the State according to the law of the land.
Hazrat Ali lost a suit in the Court of the great Judge Shuraih but never grumbled. Dr. Tanzilur- Rahman has written in his article on the concept of a Welfare State in Islam PLD 1983 Jour. 60(62) :- "According to Islamic concept of State the system of elections, the administration of the Government, the Criminal and Civil Laws, the Code of ethics and morality and external policies of a State must be based on the rules and principles laid down by Islam. The attitude of adopting some principles of religion and rejecting others, is not acceptable to .Islam. The Qur'an speaks in clear terms.
"0, ye who believe : enter completely into submission to Allah only. So the impugned legislation is against the Holy Qur'an and Sunnah as it destroys the concept of freedom of association.
11.The impugned legislation is a gift from the bureaucracy. It was not given to us by an elected President through an Ordinance. It never came to us through an Act passed by the elected representatives of the people. Therefore, it can safely be said that the bureaucracy has given us W this law. It is a command of the State, to use the words of Austin, W but that command must come through an enactment passed by the chosen w representatives of the people when they sit and deliberate in the Legislative Assembly and then pass the law.
12.There is another aspect which could never be considered by one-man Legislature i,e, its effect upon the people of the Occupied Kashmir. You have brought the impugned legislation and want to do away with the 10 M. L. As. On the ground that they were not able to fulfil the conditions mentioned in section 8-A. Well ! Are you not indirectly suggesting the Kashmir Government to do away with the small political groups which are pro-Pakistan and voice the grievances of the Muslims of the Occupied Kashmir ? Will not the Government of the Indian-held Kashmir pass a similar law and guillotine the voices that rise in favour of Pakistan or the two-nation theory ? What will happen to Kh. Abdul Ghani Loan M. L. A. Will lie not be similarly oustedIrom the Kashmir Legislative Assembly ? Again I must say that such things are considered only by an elected Legislature when 42 heads join there and consider about a Bill. An Ordinance can be brought out within 5 minutes. The Law Secretary needs only 5 minutes to prepare the draft and the signatures of the Preside fit/Chief Executive can be obtained immediately thereafter. Sardar Muhammad Yasin Khan, a political worker and Advocate puts it like this.
"We have got an Ordinance Factory and an Ordinance can be passed at any time."
All that I want to say is that the impugned legislation is unwise and it is X likely to throttle the voices in favour of Pakistan that sometime rise from x the floor of the Indian-Occupied Kashmir State Legislative Assembly.
13. The impugned legislation is highly illogical and defective. The 10 M. L. As. Shall go but the two lady M. L. As. Elected by them shall remain. Two registered political parties, shall have to go as their registration will be cancelled but the Liberation League, which was not registered at all, shall continue. Another defect is this : Suppose a candidate of the Tehrike Amal succeeds from Sindh and 1/2 of Punjab Constituency ' (refugees seat) but his party men are not able to capture any seat in y Mirpur, why should the man who succeeded after securing votes from Y Province of Pakistan, be unseated for the fault of somebody else in a district of Azad Jammu and Kashmir? Why should the refugee Kahmiri voters of Sindh and half of Punjab be penalized for no fault on the part ? This is therefore a defective law.
14. The most important argument is that the restrictions contain in the impugned legislation are absolutely unreasonable. The char Annexure 'Z' (placed on the file) shows that the lowest threshold is in Netherlands where it is 0.67 % of the votes cast. The highest is in West Germany where it is only 5% of the total national votes or victory in at least three Constituencies. The argument of Mr. S. M.
Zaffar is that at the best the threshold should be 5% of total valid votes and not 12.5%. He also pointed out that in no country of the World victory in all the Districts is required. He also submitted that the word and occurring in line No, 7 (last but one) of 8-A should be read as "Or" Reference :- "(1) In the Disabled Soldiers Act 1601 (repealed in 1863 the Word and was read as "or" R. V. Brixton Prison Governor (1937) 1 K B 305.
(2) A.-G. Of New Zealand (1917) A C 293.
(3) Murdoch v. British Israel World Federation (New Zealand) Inch (1942) NZLR 600.
(4) (2) "And does any act" (Official Secrets Act, 1920-S. "or does any act" as otherwise the phrase is Oakes (1959) 2 Q B 350.
(5) Our difficulty is that the High Court cannot direct or amend a law, we can only declare it void. 7) must be read as meaningless R. V. z
(6) Legislature to pas z 15.There is another difficulty which the framers of the impugned legislation did not take into consideration. The Election petitions are to be heard by the learned Election Tribunal. The allegations of rigging and other malpractices may be made and the Election Tribunal may, thus, in appropriate cases, come to the conclusion that some successful candidates' votes are to be deducted. He may pass such orders while deciding the cases brought before him. What will be the result ? The valid votes of, for example, Liberation League. As a result of such deductions if fall short of the required quota, then will the Liberation League, be debarred from contesting the elections for the 10 seats vacated by the two respondent parties ? No date has been mentioned in section 8-A and therefore, the sword of Democles shall always hang upon the heads of the Liberation League M. L. As. Is it justifiable under any statute, that the poor M. L. As. Should remain in the perpetual fear of losing their seats ?
16.The framers of the impugned legislation did not consider so many vital and important points.
Suppose the voters from the Kashmi Valley do not vote for the Muslim Conference from the seats reserved for the Kashmiri refugees settled in Pakistan. Imagine that the All Jammu and Kashmir Muslim Conference captures 30 out of 40 seats but does not capture even a single seat from the Kashmir refugee circle. Are you going to deprive such a party from making the Government on the simple pretext that the Muslim Conference failed to capture any seat from the "District" of Kashmir refugees ? Are you not going to deprive the majority party in the Azad Jammu and Kashmir Legislative Assembly of all the 30 seats on a mere legal pretext ? Will such a law be still termed as reasonable ?
17. There is no P. R. In Great Britain, U. S. A. And U. S. S. R. The fifth Republic of France has said good- bye to the P. R. Islam does not advocate for the P. ' Then why to have it at all costs and why not to, declare it as void when the High Court finds it violative of section 4(7) of the Interim Constitution 18.There is no mushroom growth of political parties even. There. Are only three or four parties at the Azad Jammu and Kashmir level and if there are small political groups, that should not be a basis for passing the impugned legislation.
19.The impugned legislation was passed by the President who joins in him the legislative and Executive powers both. Montesqieu, a French political philosopher whose political philosophy influenced the framers of the American Constitution, defined tyranny as such :- "There is tyranny when the legislative and Executive powers assemble in one hand. There is tyranny when any of the two i,e, Legislative, Executive or Judicial powers join in one hand."
I am not quoting the exact words of Montesqieu but simply jotting down his ideas because I could not lay my hand at any standard book of Political Science at Muzaffarabad. What I want to say is that the impugned legislation creates "tyranny" and perpetuates it so long as the impugned legislation remains on the statute Book. We are against all g sorts of "tyranny" and this concept is the oasis of the famous theory of the separation of powers.
20. The impugned legislation amounts to. Legislative despotism C more precisely the despotism of one-man Legislature. Louis XIV of France once said: The State ? Well, 1 am the State". ( Letat, cent moi) But Louis XIV was wrong because Bracton said. "Rex non debet sub horninesed sub deo et sub lege" (The king is subject not to any man but God and Law). During these last decades of. The 20th Century, law is not the command of an individual or a despot. It is the command of the elected members of the Country. In an Islamic State, the people are expecied to obey laws of God, of Rasool and of the chosen representatives of the people The word (41.) shows that they should be chosen by the people from the people for the people.
Under these circumstances, I, hereby accept this writ petition and1') declare the impugned Legislation- section 8-A of the Political Parties D Ordinance of 1985 to be void for being violative of section 4(4)(7) of the Interim Constitution Act of 1974. The impugned provision under section 5(2)
(xii) of the Azad Jammu and Kashmir Legislative Assembly E, (Election) Ordinance, 1970 goes down with it.
' Before I part with this case, I would like to quote Raja Muhammad Khurshid Khan, the learned Chief Justice of Azad Jammu and Kashmir :- "Judiciary is the guardian of the conscience of the people as well as the law of the land. It sits aloof and detached from the political arena or the seats of the executive business away from the storms and stresses which so often assail them. The decisions are, E therefore, more apt to reflect unbiased justice and traditional impartiality than political expediency or the dictates of polimat exigencies. It is rooted and grounded in the fundamental instances, of humanity in respect of equity and good conscience. This is why 2: our Holy Prophet (Peace be upon him) has said that one hour of justice is worth prayers of 60 years. Hazrat Ali has said : - "Be fair, just and impartial in your dealing, so that even the influential may not take an undue advantage and the uninfluenctial and the poor may not be, disappointed in your justice and fairness. (PLD 1981 Jour. 19(20) para. 6).
ORDER OF THE COURT In terms of majority view, section 8-A of the Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985 is declared invalid and void on the ground of being violative of the fundamental F right of freedom of association guaranteed under the Azad Jammu and F Kashmir Interim Constitution Act, 11974.
Petition accepted.
PLD 198$ Azad I K 212 Before Sardar Muhammad Ashraf Khan, J MUSHTAQ AHMAD MIR AND ANOTHER-Petitioners versus AZAD GOVERNMENT OP- THE STATE OF J & K AND ANOTHER-Respondents Writ Petition No, 3 of 1983, decided on 22nd July, 1985.
(a) Mad Jammu and Kashmir Interim Constitution Act (VIII of 1970,- S. 44-Azad Jammu and Kasliniii Irregular and Unauthorised Allotment (Cancellation) Ordina0e, 1979, -S.-1-0-1L.CanCellation of Olotment-Revision against canceltatidiii-Of allotment before Govern- ment-Maxim `audi alteram .Application of-Failure of Government to give opportunity orbeing heard to petitioner before deciding revision petition, held, resulted in violation of principle of natural justice and consequently rendered order of revising authority invalid and unlawful. [pp. 213, 214]A, B, C & D
(a) Natural justice, principle of- -- Maxim : Audi alteram partem (no one should be condemned unheard)-Principle to be presumed to be incorporated in every statute unless its application, specifically excluded.- [Interpretation of statutes]. [p. 213]A Muhammad Iqbal Qureshi for Petitioner.
Mirza Muhammad Nisar, Addl. A.-G. For Respondents. Date of institution : 29th January, 1983.
' In this Constitutional Petition Mr. Mushtaq Ahmad Mir has called in question the validity of the Government Order dated 10-1-1983, whereby his application for revision against the order of the Inspection Team made on 14-10.1979 was dismissed.
2. The brief facts giving rise to this writ petition are that the petitioner in his capacity as a refugee from Jammu and Kashmir State had obtained the allotment of evacuee land measuring $ Kanals and 14 Marlas situate in village Mandi Tehsil Kotli and had also got sanctioned in his name 2 Marlas and 6 Sarsais crown land in Muzaffarabad Town on ground tent (Teh-zameni). On the complaint- of some one, the Chairman of the Inspection Team vide his order dated 14-10.1949 cancelled both the above allotments of evacuee and crown land from the name of the petitioner on the ground that he being the member of the family of his father Mr. Manzoor Ahmad Mir was not entitled to the same under the relevant laws.
3. Feeling aggrieved by the above order of the Chairman, Inspection Team, the petitioner filed a revision against the same before the Government but was not successful as the same was dismissed vide Government Order dated 14-10-1979. Hence this writ petition.
4. The respondents have contested this writ petition by filing written statement in which it is alleged that the impugned order of the cancellation of petitioner's allotments is perfectly lawful as he was a member of the family of his father and as such was not entitled to any allotment of the evacuee or crown land.
5. I have heard the learned counsel for the parties and have also perused the writ petition and the documents attached thereto.
6. The learned counsel for the petitioner has pressed into service the following grounds in support of his contention that the impugned order of the Government-respondent is unlawful and of no legal effect :-
(i) That the impugned order of the Government-respondent has been passed without hearing or giving an opportunity of being heard to the petitioner ;
(ii) That the petitioner was born before 1947 in Occupied Kashmir where he was living with his aunt and after migration he constitutes a separate and independent family in Azad Kashmir from that of his father ;
(iii) That the grant of crown land on Rent is made only for commercial purposes and as such allotment of such land to a person, cannot be counted towards the scale prescribed under law for allotment of evacuee land ; and
(iv) The Inspection Team was competent to cancel those allotments or grants which are found to have been obtained in violation or relaxation of relevant laws and rules but the allotments cancelled from the name of the petitioner were not obtained in violation or relaxation of any relevant law or rule.
7. The preliminary question that arises for determination in this case is as to whether or not the petitioner was heard or given an opportunity of being heard by the Revising Authority before passing the impugned order and in case the answer to the above question is found in the negative, what is its effect on the impugned order. In order to determine the first part of the above question, the learned Additional Advocate-General, Counsel for the respondents was directed on the last date of hearing to apprise the Court about the factual position in respect of the allegation of the petitioner that the impugned order was passed without hearing him. Today, the learned Additional Advocate-General after examining the relevant file of the Government in which the impugned order was made has conceded that neither the petitioner was heard nor any opportunity of being heard was given to him before passing the impugned order. Thus, in view of the undisputed fact that the Government-respondent had passed the impugned order: dismissing the revision petition of the petitioner against the order of the Chairman, Inspection Team at the back of petitioner and without hearing him the next question that falls for determination is as to whether or not it was necessary for the Government-respondent to provide an opportunity of being heard to him before deciding his revision petition. The answer to the above question is definitely in the affirmative. It is the settled law that the principle of natural justice embodied in maxim `audi alteram partem' shall be presumed to be incorporated in every statute unless its application is specifically excluded by making a provision to that effect in such a statute itself. The learned Additional Advocate-General also agrees with this general proposition of law. The Ordinance known as Irregular and Unauthorised Allotments (Cancellation) Ordinance under which the allotments in questions were cancelled from the name of the petitioner by the Chairman Inspection Team, makes provision in its section 10 for a petition of revision against the decision of the Inspection Team or its Chairman, to the Government or to an officer authorised by it in this behalf. Thus the Government-respondent to whom the petition for revision was filed was bound to give an opportunity of being heard to, the petitioner because there is no provision in the said Ordinance enabline the revising authority to decide a revision petition against the order of the! Inspection Team or its Chairman, without giving any opportunity of being: heard to the petitioner therein.
8. Thus the above principle of natural justice is fully applicable in a revision petition to the Government against the decision of the Inspection Team or its Chairman and in the present case failure of the Government-respondent to give an opportunity of being heard to the petitioner before c deciding his revision petition has resulted in the violation of the aforesaid. Principle of natural justice and consequently rendered the impugned order invalid and unlawful.
9. For the reasons stated above, the impugned order of the Government-respondent, rejecting the revision petition of the petitioner against the decision of the Chairman, Inspection Team, dated 14- 10.1979 is declared to be invalid, unlawful and inoperative and consequently setting aside the same, the case is remanded to the Government with the direction to decide the aforesaid petition for revision of the petitioner afresh in accordance with the law after giving him an opportunity of being heard.
10. In the circumstances of the case, there shall be no order as to costs.