1. AJMAL MIAN, CJ.-- (1) The petitioner, who belongs to Hindu minority community and is an ex-M.P A.
2. Has filed the present petition for the following relief That the petitioner respectfully prays that thisHonourable Court will be graciously pleased to: to declare that respondents have failed to carry out its functions to allocate all the seats in the National Assembly as envisaged in clause (3) of the Article 51 of the Constitution: to direct the respondents to allocate the seat mentioned in clause (2-A) of Article 51 of the Constitution as envisaged in clause (3) of Article 51 of the Constitution to provinces; to declare that Ordinance No. IV of 1988 issued promulgated on 20.7.1988 and or Ordinance No. VHI of 1988 issued on 12.9.1988 amending law of delimitation relating of constituencies is void, of no legal effect and inconsistent with the constitution: to declare that the act of promulgating the said Ordinances have been done without lawful authority and is of no legal effect: ORDERto declare that the said Ordinances takes away and abridges the rights and is in contraventions of the rights conferred upon citizens of pakistan: to declare that the respondent NO.2 has failed to delimit the seats enumerated in clause (2-A) of Article 51 and clause 3 of the Article 106 of the Consitution:#tbs(e)(0(g)00(00)#theto direct the respondent No.2 to delimit the constituencies of seats emmerated in clause 2-A of article 51 of the Constitution and clause 3 of article 106 of the Constitution:to direct the respondents to refrain from holding elections to the seats emmerated in Articl 51 (2-A) and Article 106 (3) of the Constitution: to issue, give and grant an order against the respondents their agents, servants, and all person claiming and acting through or under them from implementing or otherwise giving effect to provisions of the impugned acts of respondents of holding elections to the seats reserved for non- muslims without fulfilling the conditions precedent for holding the same:to grant such further and other rules, rulings directions, prohibitory and order as may be appropriate as the nature and circumstances of the case may be required:2 The brief background of the filing of the above petition is that Article 106 of the constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution), provided certain reserved seats in the Provincial Assemblies for the minority communities in Pakistan. There was no parallel provision in the constitution relating to National Assembly. It seems that Constitution (Fourth Amendment) Act, 1975 incorporated clause2- A in Article 51 with effect from 21.11.1975 providing 10 additional seats, (hereinafter referred to as the reserved seats), in the National Assembly for the minority communities. The above clause was substituted by President's Order No.14 of 1985 with effect from 2.3.1985.The main grievance of the petitioner is that in terms of clause 3 of Article 51 of the Constitution the reserved seats provided in above clause 2-A of the said Article have not been allocated by respondent No.1 to each provin and that there has not been any delimitation carried out by respondent N.2 in respect thereof, which has given him cause of action for the above petition.3 In support of the above petition, the petitioner who has argued his case personally with the flavour of the trained lawyer, has urged as follows:(i) That respondent No.1 failed to discharge its constitutional obligation by not allocating to each province reserved seats in terms of above clause 3.(ii) That respondent No.2 has failed to discharge its constitutional obligation by not delimiting the reserved seats in terms of Article 222 of the Constitution.(iii) That clause (c) of Article 2 of President's Order 2 of 1985 constituting whole pakistan excluding the Federally Administered Tribal Areas as oneconstituency for election to the reserved seats is violative of Article 222 of the Constitution.(iv) That a Muslim is entitled to contest election on the basis of single member constituency, whereas a candidate for the reserved seat is to contest on the basis of multi member constitutencies and this being discriminatory is violative of Article 25 of the Constitution.On the other hand Mr. HA. Rehmani, learned counsel appearing for the Attorney General, who has appeared in respondent to the preadmission notice has submitted as under:(1)
3. That clause 3 of Article 51 is not applicable to the reserved seats provided for under clause 2-A of Article 51 of the Constitution.(ii) That since the delimitation of the reserved seats was made by the legislature itself, the respondent No.2 was not to carry out the above work in respect of the above seats.(the) That clause (c) of Article 2 of President's Order No.2 of 1985 does not violate Article 222 of the Constitution.(iv) That there has not been any violation of Article 25 of the Constitution in the instant case on account of the basis on which Muslims and non-Muslims are to contest the elections of the National Assembly.4. Adverting to the above first submissions of the learned counsel for the parties, it may be appropriate to reproduce Article 51 of the Constitution, which reads as follows:51.(1) The National Assembly shall consist of two hundred and seven Muslim members to be elected by direct and free vote in accordance with law.(2) A person shall be entitled to vote if-(a) he is a citizen of Pakistan:(b) he is not less than twenty-one years of age:(c) his name appears on the electoral roll; and(d) he is not declared by a competent court to be of unsound mind.(2A) In additions to the number of seats referred to in clause (1), there shall be in the National Assembly ten additional seats reserved as follows for the(3) (4) #tbs(5) persons referred to in clause (3) of Article 106.(6) Christians 4(7) Hindus and persons belonging(8) to the Scheduled castes 4(9) Sikh, Budhhist and Parsi(10) Communities and ether non-Muslims 1(11) Persons belonging to the Quadiani Group or the Lahore group(12) (who call themselves Ahmedis) 1(13) #the(14) The seats in the National Assembly shall be allocated to each province, the Federal Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published.(15) Untill the expiration of a period of ten years from the commencing day or the holding of the third general election to the National Assembly, whichever occurs later, twenty seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Consitution and law.(4A) The members to fill the seats referred to in clause (2A) shall be elected, simultaneously with the members to fill the seats referred to in clause (1), on the basis of separate electorates by direct and free vote in accordance with law.(16) As soon as practicable after the general election to the National Assembly, the members to fill seats reserved for women which are allocated to a province under clause (4) shall be elected in accordance with law on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected to the Assembly from that Province.(17) Notwithstanding any thing contained in this Article, the President may, by Order, make such provision as to the manner of filling the seats in the National Assembly allocated to the Federally Administered Tribal Areas as he may think fit.A perusal of the above quoted Article indicates that clause (1) provides the composition of the National Assembly and the basis on which the election is to be held, whereas clause (2) lays down the qualification of a person who can contest an election for the National Assembly. It may however be noticed that clause (2A) which was not originally provided in the Constitution, as observed hereinabove and was incorporated by the Fourth Amendment Act, 1975 and subsequently substituted by President's Order No.14 of 1985, provides ten additional reserved seats for the minority comminities mentioned therein which include Hindus and persons belonging to the scheduled castes for which four seats are reserved, whereas clause (3) provides that the seats in the National Assembly shall be allocated to each province, the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published. It may also be pointed out that clause (4) provides twenty reserved/seats for women, whereas clause (4A) which was also incorporated by the Constitution Fourth Amendment Act, 1975 with effect from 21.11.1975 lays down that the members to fill the seats referred to in clause (2A) shall be elected simultaneously with the members to fill the seats referred to in clause (1), on the basis of separate electorates by direct and free vote in accordance with law. It may further be pointed out that clause 5 provides the mode of filling 20 reserved seats for women, whereas clause 6 empowers the President by order to make such provision as to the manner of filling the seats in the National Assembly allocated to the Federally Adminstered Tribal Areas as he may think fit.5. We are inclined to hold that if clause (2A) is to be read in conjunction with clause (4A) of the above Article 51, it becomes evident that the reserved seats stand on different footing under the Constitution. Sinceclause 2A itself specifies the allocation of seats to the various communities not on the basis of the province or the population basis but on the basis of the communities, clause 3 of above Article cannot be pressed into service in relation to clause (2A). The petitioner has not even demonstrated before us that practically it was possible to allocate the reserved seats to each province on the basis of the population. If we were to accept the above contention of the petitioner, it would lead to unreasonable consequences. For example if in Baluchistan or North West Frontier Province the population of Hindus and scheduled castes communities is hardly 30 to 40 thousand, it means that there could not by any allocation of seats to the above provinces as for Muslim seats, one is allocated against the population of about four lacs.In our view, the reserved seat cannot be equated with the Muslim seats which are to be distributed among the various provinces on the basis of the population in accordance with the last preceding census officially published, in terms of clause (3) of Article 51 of the Constitution. The reserved seats are of a special category and in fact it is an conception to the basis provided in above clause (3) of Article 51.6. As regards the second and third submissions of the learned counsel for the petitioner that respondent No.2 has failed to discharge its consitutional obligation by not delimiting the reserved seats in terms of Article 222 of the Constitution and that clause (c) of Article 2 of President's Order.2 of 1985 constituting whole Pakistan, excluding the Federally Administered Tribal Areas as one constituency for election to the reserved seats is violative of Article 222 of the constitution, it may be observed that the functions and duties of the Election Commission and the Chief Election Commissioner, (who has been referred to as the Commissioner in the Constitution), have been provided in Articles 218 and 219 of the Constitution which read as follows:218. (1) For the purposes of each general election to theNational Assembly and to a Provincial Assembly, an Election Commission shall be constituted in accordance with this article.(2)
4. The Election Commission shall consist of-(a) the Commissioner who shall be Chairman of the Commission; and(b) two members each of whom shall be a Judge of a High Court appointed by the President after consultation with the Chief Justice of the High Court concerned and with the Commissioner.(3) It shall be the duty of the Election Commission constituted in relation to an election to organise and conduct the election and to make such arrangments as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.219. The Commissioner shall be charged with the duty of. -
(a) preparing electoral rolls for election to the National Assembly and the Provicial Assemblies, and revising such rolls annually:(b) organizing and conducting election to the senate to or to fill casual vacancies in a House or a Provincial Assembly: and(c) appointing Election Tribunals.A plain reading of the above quoted Article 218 shows that its clauses (1) & 2 provide the constitution of the commission and its composition, whereas clause (3) provides its duties, namely that it shall be the duty of the Election Commission in relation to an election to organize and conduct the election and to make such arrangments as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against, whereas Article 219 lays down the duties of the commissioner namely, preparing electoral rolls for election to the National Assembly and the Provincial Assemblies and revising such rolls annually, organizing and conducting election to the sanate or to fill casual vacancies in a Course or a Provincial Assembly and appointing Election Tribunals. In both the above Article the power to delimit has not been conferred either on the Commission or on the Commissioner. The petitioner has relied upon Article 222 and its proviso in order to contend that it is the duty of the Election Commission to carry out the delimitation of the constituencies and any enactment taking away the said power of the Election Commission is violative of the proviso to above Article 222. It may be advantageous to reproduce the above Article 222 of the constitution which reads as under:222. Subject to the Constitution, Majlis-e-Shoora (Parliament) may by law provide for -(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51:(b) the delimitation of constituencies by the Election Commission:(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls:(d) the conduct of elections and election petitions, the decision of doubts and disputes arising in connection with elections:(d) matters relating to corrupt practices and other offences in connection with elections; and (f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies : but no such law shall hare the effect of taking away or abridiging any of the powers of the Commission under this part.A plain reading of the above quoted Article 222 shows that under the above Article the power has been conferred on the Parliament to make law on the matters mentioned in sub-clauses (a) to (f) it does not confer any power either on the Election Commission or on the Commissioner. The proviso to above Article prohibits the making of any law by the Parliament, which may have effect of taking way or abridiging the powers of the Commissioner of Election commission under the above part of the constitution. It is true that because of clause (b) of above Article 222 of the Constitution the parliament has been empowered to make law for the delimitation of the constituencies by the Election Commission, but it may be pointed out that the words used in the opening part of the above Article are subject to the Constitutiion Parliament may by law provide for which indicates that the discretion has been given to the Parliament to make laws or not to make on the subjects mentioned. If the Parliament itself provided the delimitation of the constituencies of the reserved seats in the form ofPresident's Order No.2 of 1985 ( as the President was exercising the power of the Parliament at the relevant time), it cannot be said that there has been violation of Article 222 or its proviso. If the Parliament would have purported to take away the power conferred on the Election Commission and the Commissioner under above quoted Article 219 and 219, it would have violated the proviso to above Article 222 but this is not the case.7. We are inclined to hold that neither Ordinance No.IV of 1988 providing allocation of seats to each of the provinces in terms of clause(3) of Article 51 of the Constitution, nor Ordinance No. VHI of 1988 providing allocation of seats for Tribal Areas has violated the above Article 222 of the Constitution. In any case the petitioner cannot be said to be an aggrieved person as he belongs to a Hindu Minority Community and the reserved seats in the National Assembly in respect thereof have not been touched upon by the above two Ordinances.8. Adverting to the last contention of the learned counsel for the petitioner that a Muslim is entitled to contest election on the basis of single member constituency whereas a candidate for the reserved seat is to contest on the basis of multi member constituencies and this being discriminatory is violative of Article 25 of the Constitution, it may be observed that the petitioner in furtherance of his above submission has pointed out the inconveniences and the difficulties which are faced by a candidate belonging to the minority community for the reserved seats, in as much as that permissible limit for the election expenses provided for a Muslim candidate is rupees five lacs whereas for a non Muslim rupees ten lacs for a National Assembly seat, that a non Muslim has to canvass the voters in the entire Pakistan which is impossible and difficult etc. He has, therefore, submitted that the above basis of the suit member constituencies provided for the non Muslims and single member constituencies for a Muslim has violated Article 25 of the Constitution which provides that all citizens are equal before law and are entitled to equal protection of law and that there shall be no discrimination on the basis of sex alone etc.In our view, there has not been any violation of the above Article 25 of the Constitution. A comparison between a Muslim candidate for the National Assembly seat and a non Muslim candidates for the reserved seat is not proper. As observed hereinabove that the reserved seats have been provided for the minority communities as an exception to the basis of the Muslim seats provided in clause 3 of Article 51 of the Constitution. If all other things would have been equal providing of single member constituency for the Muslims and multi member _constituendes for the minority communities would have been violative of Article 25 of the Constitution, but all the other things are not equal, as pointed out hereinabove and that the reserved seats stand entirely on different footing than the Muslim seats and hance there cannot be any comparison between the two categories of the candidates.9. We have not deliberately dilated upon the question of laches (as admittedly President's Order No.2 of 1985 was gazetted on 12.1.1985, whereas Fundamental Rights were enforcement with effect from 1.1.1986) but the above petition was filed on 24.9.1988, for the reason that we have examined the case on merits and found that the same is not tenable.For the aforesaid reasons, the petition is dismissed in limine.