1. ' MUHAMMAD HALEEM C.J.--This is a petition for leave to appeal from the common judgment of the Lahore High Court dated 8-11-1988 in the present and other similar matters whereby the provisions of Ordinances Nos. XXVI and XXVII of 1988 requiring the production of A an identity card before the issuance of a ballot paper to a voter at the forthcoming general elections has been held to contravene the provisions of Article 51(2) of the Constitution on the ground that these constitute a clog on the entitlement of a person to vote, who is otherwise qualified under the said provision., ' The High Court has further held that voters will be entitled to be given ballot papers to cast their votes not only if they produce identity cards issued to them under the National Registration Act, 1973, but also if they can produce any other proof about their identity to the satisfaction of the Presiding Officers. Other related and ancillary findings necessarily following the above findings have also been rendered by the High Court.
2. ' We have heard the learned Attorney-General in support of the petition and Mr. Abid Hassan Minto for Mr. Aitzaz Ahsan, in opposition thereto.
3. ' The learned Attorney-General in support of the petition has, inter alia, raised the contention that the impugned Ordinances Nos.XIV of 1988 and XXVII of 1988 making the production of the identity card obligatory for issuance of a ballot paper are only regulatory and procedural anti are designed to ensure the implementation of the provisions of Article 51(2) of the Constitution in order to avoid bogus voting and rigging of elections and do not constitute a clog on the entitlement of a voter. He further pointed out that ever since 1973 after the enactment of the National Registration Act, 1973, the production .Of identity cards has been a necessity for certain purposes. He referred to subsection (2) of section 8 which provides that the officer charged with the duty of conducting the poll at an election to the National Assembly or a Provincial Assembly may for the purpose of satisfying himself as to the identity of any person, require such person to produce his identity card and again in subsection (4) of section 8 it is laid down that: "The identity card issued to any person shall be proof of his identity for any purpose for which his identity is required to be established."
4. ' The provisions of the Ordinances and the other laws contemplate a purpose which has been visualized by subsection (4) of section 8; namely to prove identity of the voter for the purpose of elections ' It is also pointed out that any person who does not apply for the issuance of an identity card can be punished with rigorous imprisonment for a period not exceeding three months, or with fine not exceeding Rs,1,000 or with both under section 11 of the Act, and accordingly submits that since obedience to the Constitution and law is the inviolable obligation of every citizen under Article 5(2) of the Constitution, this' voters who have not obtained identity cards despite the provisions of sections 8 and 11 of the National Registration Act, 1973, have acted in disobedience to the law and cannot now put a premium on their own default.
5. ' According to the learned Attorney-General, it is an admitted position that the production of an identity card is one of the modes whereby the identity of the voters can be established. The only objection is that there are other modes whereby his identity can also be established and the impugned law by restricting the proof of identification to only one of the several modes which are possible is unreasonable and harsh. But the learned Attorney-General adds that harshness of the law has never been held to be a sufficient ground for invalidating or avoiding the law itself. In fact, the purpose of this law is to ensure the right of the genuine voter as contemplated by Article 51(2) of the Constitution and the Electoral Rolls Act, 1974 to cast his vote and guard against bogus voting.
6. The, right of the genuine voters is thus safeguarded rather than jeopardized by the insistence of the law for the production of an identity card.
7. ' These submissions, inter alia, raise questions of general public importance calling as they do for the interpretation of Constitutional provisions contained in Articles 5(2) and 51(2) of the Constitution and the relevant laws and these require an authoritative decision of this Court.
8. ' Leave to appeal is accordingly granted.
9. ' The appeal arising out of this petition shall be heard on the present record with liberty to the parties to file additional documents, if any.
10. ' The learned Attorney-General submitted that the operation of the impugned judgment of the High Court be suspended till the appeal is heard and decided. This was resisted by the learned counsel for the respondent.
11. ' We have heard the learned Attorney-General and the learned counsel for the respondent at great length on this aspect of the matter. It is a well-settled principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason it should have its normal operation. Besides, the balance of convenience is also in favour of petitioner in so far as the voters who are able to establish their identity through the identity cards should alone be allowed to cast their vote. This would prevent large scale bogus voting which may, but for such requirement, take place. It will also lend greater credibility to the election process in the country by ensuring the compliance of constitutional requirement of Article 218(3) that "the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against". The operation of the impugned judgment is, therefore, suspended till the hearing and decision of this appeal.
12. ' However, we may observe here that the preparation and the issuance of the identity cards to applicants who have already applied within due dates shall continue unhampered as was the undertaking given by the learned Attorney-General in the High Court and repeated before us.
13. ' SAAD SAOOD JAN, J.--With respect, I agree that as in this petition important questions with regard to the interpretation of the Constitution and law, in particluar, relating to the Representation of the People Act and the National Registration Act, have been raised, this is a fit case where leave to appeal should be granted.
14. ' As regards the suspension of the operation of the judgment of the Lahore High Court I am, with deep respect to my learned brothers, of a different view. The High Court has inter alia declared that the electors would be entitled to be given their ballot papers to cast their votes if they produce identity cards issued to them under National Registration Act 1973, but if they do not have, then they can produce any other 'proof about their identity to the satisfaction of the Presiding Officers. It will be noticed that the High Court has rejected the production of the Identity Card as the sole mode of proof of the identity of an elector. This in my humble opinion seems to be prima facie the correct view of the law. It may be mentioned that in Article 51 (2) the Constitution has itself laid down the qualifications for an elector. It is not possible to add to these qualifications except through a Constitutional amendment. It is contended by the learned Attorney-General that the amendments made in the Representation of the People Act through Ordinances issued on 4th October and 7th November, 1988 are intended merely to facilitate the identification of the electors and avoid bogus voting. This is indeed a laudable object. But when the right to receive the ballot papers is made dependent solely upon the production of the identity card, it is to my mind, as at present advised, tantamount to adding a new qualification in Article 51 (2) which cannot be done by sub-Constitutional legislation. The General Election will take place within a week's time. It is not disputed that at least 7% of the electors in the country do not possess identity cards. The new qualification will have the effect of disfranchising them. I would therefore, with deep respect refuse to suspend the order of the High Court.
15. ORDER OF THE COURT ' In accordance with the majority opinion of the Judges, the order of the Court is that the operation of the impugned judgment of the Lahore High Court dated 8-11-1988 is suspended till the hearing and decision of the appeal. . Order suspended.
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