SH. IJAZ NISAR, J.---Mr. Arif Iqbal Hussain Bhatti, Advocate has filed this Constitutional Petition No.8685 of 1993 as a voter and intending candidate to the National Assembly Seat from Constituency No.NA.95, Lahore. Mian Yusuf Salahuddin, who is also a candidate for the National Assembly Seat from Constituency No. NA. 96, Lahore has also filed Writ Petition No.13516 of 1993.
Since both these petitions involve the same questions, they are being disposed of by this single judgment.
2. Both the petitioners have challenged the vires of amendment in section 33 by Act IX of 1991 called the Representation of the People (Amendment) Act, 1991 amending the Representation of the People Act, 1976 (LXXXV of 1976) authorizing the Presiding Officer to require the elector to produce his identity card provided for in the National Registration Act, 1973 and refuse to issue ballot paper to him if he fails or refuses to produce his identity card.
3. It is contended that the above amendment has the effect of denying the right of franchise to a voter who is otherwise eligible to cast vote under Article 51(2) of the Constitution of Islamic Republic of Pakistan, 1973. Article 51(2) provides that 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, Learned counsel for the petitioners maintains that no sub---constitutional legislation such as the Representation of the People (Amendment) Act, 1991 can be permitted to make any inroads into the citizens' right expressly conferred on them by the Constitution. By making the above amendment in the Representation of the People Act, a new qualification in Article 51(2) has been introduced which could only be done by amending the Constitution. It is added that the provisions of Article 51(2) of the Constitution do say that the National Assembly shall consist of so many members to be elected by direct and free vote in accordance with law but the provisions of sub- Article (2) are not subject to law.
4. It is further contended on behalf of the petitioners that a Division Bench of this Court in Constitutional Petitions Nos. 5777, 5894, 5934 and 5937 of 1988 titled Aitzaz Ahsan and others v.
Chief Election Commissioner and others PLD 1989 Lahore 1 had held after considering the effect of section 33 as amended by the Representation of the People Act, 1976 (Amendment Ordinance XXVI of 1988) and Representation of the People Act (1I Amendment Ordinance No. XXVII of 1988) that the condition of the production of identity card, for the issuance of ballot paper could not be insisted upon. The electors would be entitled to be given the ballot paper to cast their votes if they produced the identity cards, issued to them under the National Registration Act, 19'73 but if they did not possess, then they could produce other proof about their identity to the satisfaction. Of the Presiding Officers and if a candidate or his agent objected, the elector could be issued under section 35 of the Representation of the People Act, 1976 "a Challenged Ballot Paper". The said judgment was assailed by the Federation of Pakistan by filing C.P.LA. No.1076-88 in the Supreme Court. Although leave was granted and operation of that judgment was suspended but later on 11- 6-1990, the Federation of Pakistan withdrew the appeal, as a result of which the same was dismissed as withdrawn.
5. It is stated that the amendments made by Ordinance No.XVI of 1988 dated 4-10-1988, Ordinance No.XXVI of 1988 and Ordinance No.XXVII of 1988 dated 7-11-1988 were fully considered in Aitzaz Ahsan's case and it was held that the entitlement of a person to vote could not be abridged, limited or conditioned by any provision of subordinate legislation.
6. It is maintained that since amendment of section 33, Act (LXXXV of 1976) by Act IX of 1991 is to the same effect, it should also be struck down being ultra vires of the Constitution.
7. It is asserted by the learned counsel for the petitioner that the provision in question was not mandatory but was directory in character and, therefore, no voter could be denied the right of vote merely on the ground that he was not in possession of a National Identity Card. Learned counsel for the petitioners submitted that it is the duty of this Court to interpret various provisions of law and the Constitution harmoniously with a view to resolving the conflict, if any. This purpose could be achieved by holding that the requirement to produce National identity card was intended to be obeyed as far as possible but no penal consequences could follow from its noncompliance like disfranchising those who did not possess the same.
The petition was strongly opposed by the learned Advocate-General, Punjab and learned Deputy Attorney-General of Pakistan who maintained that the Amending Act was in no way violative of Article 51 of the Constitution of Islamic Republic of Pakistan, 1973 and its validity was not open to question in any way. It was explained that the amendment had been made with the salutary object of holding free and fair election in accordance with law. It was also argued that the amending Act was regulatory in character as it provided for a method for identification of a voter to obviate any chance of a person casting bogus vote. According to the learned Law Officers, the Federal Legislature is fully empowered under the Constitution to frame such a law which in no manner abridges or limits or takes away the entitlement. Of a voter to cast his vote.
8. So far as argument of the learned counsel for the petitioner that the provisions of the amending Act ,should be taken as directory and not mandatory is concerned, it was pointed out by the learned Deputy Attorney General that if such an interpretation was adopted it will have the effect of rendering the amendment as redundant and superfluous and would defeat the very purpose for which it was made.
9. Before proceeding to examine the respective contentions raised before us by the learned counsel for the parties, it is advantageous to reproduce the relevant provisions of the Constitution as also those of section 33 of the Representation of the People Act as amended.
Article 51 of the Constitution of Islamic Republic of Pakistan, 1973 reads: (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 competent Court to be of unsound mind.
(2-A)------------------..
(3)------------------------ (4)---------------------------..
(5)------------------------.
(6)--------------------- The relevant part of section 33 of the Representation of People Act, 1976 is as under:-- Voting procedure,--(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for the purpose, require the elector to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973).
(2)
(3)A ballot paper shall not be issued to a person who--- (a)fails or refuses to produce 'his identity card provided for in the National Registration Act, 1973 (LVI of 1973); (b)refuses to have his identity card punched by the Presiding Officer of Polling Officer to indicate the issue of a ballot paper to him; (c)
(d)
(4)
(5)
(6)
(7)
10. The main plank of the argument of the learned counsel for the petitioner rests on Article 51 of the Constitution of Islamic Republic of Pakistan, 1973 as interpreted by a Division Bench of this Court in Aitzaz Ahsan and others v. Chief Election Commissioner and others PLD 1989 Lahore 1.
11. It was emphasised that Article 51(2) of the Constitution provides that it is an inalienable right of a citizen to vote at an election if he fulfils the qualifications laid therein. This right cannot be whittled down by any sub-Constitutional legislation by adding any condition on the exercise of right of vote.
According to the learned counsel though Article 51(1) was subject to law but Article 51(2) does not envisage the framing of law on the subject.
12. We have given our full consideration to these arguments but find ourselves unable to agree with the learned counsel for the petitioner.. It is a fundamental principle of interpretation of a statute which is applicable with greater force to the cases of interpretation of Constitution, i.e., that the provisions contained therein should be read as a whole and not in isolation from each other. This principle is all the more attracted to the present case for sub-Article (1) and sub-Article (2) both appear in the same Article. In Bindra's Interpretation of Statutes, 7th Edition at page 63, it is stated that all subsections to . a section must be read as parts of integral whole interdependent. In Begum Shamsun nehar v. The Speaker, East Pakistan Provincial Assembly and the Chief Election Commissioner, Dacca PLD 1965 SC 120 it was held that an elementary rule of construction of Constitutional instruments is that effect should be given to every part and every word of the Constitution. Further, in constructing Constitutional provisions it is the duty of the Courts to consider the whole instrument for ascertaining the true intent and meaning of any particular provision."
Again in Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595 it was observed "that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in .Order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions, the Court should harmonize, them, if possible:" In view of these authoritative pronouncements there is, no warrant for the contention that sub-Article (1) and sub- Article (2) of Article 51 should be read independent of each other and not as a whole. Furthermore, there is nothing in the text of these two Articles on the basis of which it could be said that the two fall in separate watertight compartments having no relevance with each other. On the other hand, we are firmly of the view that both sub-Article (1) and sub-Article (2) deal with the same subject namely, that of election by direct and free vote by persons who are citizens of Pakistan not less than 21 years of age whose names appear in the electoral roll and who have not been declared to be of unsound mind by any competent Court. This view is further fortified by Article 222 of the Constitution of Islamic Republic of Pakistan, 1973 which enables the Parliament to make law for the conduct of elections.
13. Learned counsel for the petitioner has pointed out that Article 222 of the Constitution is subject to Constitution and therefore, subordinate to Article 51(2) and no law can be framed which would be contrary to Article 51(2). We are, however, unable to find anything in Article 51 of the Constitution which forbids the making of any law on the subject of election. Indeed, Item No.41 of Part I of the Fourth Schedule of the Constitution specifically empowers the Parliament to legislate in respect of election, inter alia, to the National Assembly, Senate and Provincial Assemblies. We have.
Consequently no hesitation in repelling the contention that no law can be framed in respect of matters dealt with by Article 51(2) of the Constitution.
14. The next question which arises for consideration is about the nature of the amending Act.
According to the learned counsel for the petitioner, the amendment has the effect of abridging the right of vote and therefore, violative of Article 51(2) of the Constitution. In support of this contention heavy reliance was placed by him on the judgment of Division Bench of this. Court in Aitzaz Ahsan's case (supra) but after careful analysis of the provisions of the amending Ordinance we find ourselves unable to agree with the learned counsel for the petitioner and .With great respect do not find persuaded to subscribe to the view taken in Aitzaz Ahsan's case that by amending Representation of Peoples Act, 1991, Article 51(2) of the Constitution had been violated. To us the provisions of the amending Ordinance are regulatory and procedural in nature and do not take away or in any manner limit the right of vote. It cannot be disputed that the identification of the person claiming to be a voter is not only important but the essence of an election. Therefore, if the legislature has provided measures to achieve this objective it cannot be said that any embargo was placed on the right to vote which would come in conflict with the right of franchise as enshrined in Article 51(2) of the Constitution. Although, there can be no cavil that the Parliament cannot, by way of subordinate legislation, alter the qualifications given in Article 51(2) of the Constitution but it can certainly prescribe procedure for regulating the exercise of that right.
15. We may at this stage take notice of the argument of the learned Deputy Attorney-General that it is the duty of the Court to make efforts to uphold the law framed by competent legislature rather than striking it down. This argument is supported by the decisions of the Supreme Court of Pakistan, inter alia in Province of East Pakistan etc. v. Sirajul Haq Patwari etc. PLD 1966 SC 854, Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 and Lahore Improvement Trust, Lahore, through The Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811.
16. The main thrust of the argument of the learned counsel for the petitioner was that it is not open to the Legislature to add any other qualification or disqualification to Article 51(2) through subordinate legislation. We have already held that Representation of People Act, 1991 is regulatory and procedural in character and does not affect substantive right of voter. However, the argument of the learned counsel for the petitioner is open to exception in view of the pronouncement of the Supreme Court of Pakistan in Government of Pakistan v. Syed .Akhlaque Hussain and West Pakistan Province PLD 1965 SC 527. The judgment delivered by Kaikaus, J., was not accepted being minority view. On the other hand, in the majority judgment particularly that of Abdul Sattar, J. It was observed:-- "In view of the above, I am unable to accept the contention that Article 126 is exhaustive of all types of disqualifications of ex-Judges and no provision debarring them from practice in Courts could be made by legislation. Reference in this connection has been made to Article 103 of the Constitution to show that wherever the Constitution, while making provisions for disqualifications for certain offices, has thought it necessary that addition can be made to such disqualification by legislation, it had said so expressly in the Article concerned. The comparison of Article 126 with Article 103, 1 may venture to point outwith respect, does not appear to be apposite. The wording of Article 103 is different from the language of Article 126. If the necessary reservations were not made in Article 103, a possible argument could be advanced that the disqualifications mentioned therein were to be the only disqualifications for being a member of an Assembly. No argument on the language of Article 126 that it is exhaustive of all disqualifications that would attach to ex-Judge, is possible---.
We may take notice if the argument of the learned counsel for the petitioner is accepted that the right of vote cannot even be regulated by a Statute, it would lead to ridiculous results. For example, under Article 51(2) it is required that a person shall be entitled to vote if he is a citizen of Pakistan and his name appears on the electoral roll but there is no further requirement that in order to vote at a particular constituency he must be a resident of that electoral unit. If the argument of the learned counsel is accepted then a citizen whose name appears on the electoral roll of any constituency can claim right to vote at any place but such an intention cannot be attributed to the Constitution-makers. The main contention which prevailed in Aitzaz Ahsan's case with the learned Judges of the Division Bench was that if the condition as to the production of the I.D. Cards was insisted upon, it would result in denial of right to vote to a large number of citizen whose names were borne on the electoral rolls. It was observed try the learned Judges on the basis of the data supplied to them that as many as 3,762,078 voters had not been supplied Identity Cards to cast their votes. On the contrary, it was not brought to the notice of the learned Judges that the age for obtaining the Identity Card is 18 years under the National Registration Act while the age for a voter under the Constitution is 21 years. We on our part had directed the Department to supply a complete and comprehensive list of the number of identity cards issued and the number of pending applications. They told us that Identity Cards have been issued to a large number of voters.
We cannot also help observing that the requirement to obtain an identity card under the National Registration Act is mandatory and the' violation to obtain the same is an offence punishable with rigorous' imprisonment for a period not exceeding three months or with fine not exceeding one thousand rupees or with both. This law is in force since more than 20 years during which period for General Elections and similar number of elections to the local councils have already been held. A person who has been so indolent in performing the obligation cast on him by law cannot be permitted to say that a prejudice would be caused to him for the non, procurement of Identity Card.
We are also of the hew that so far as the holding of election is concerned, Special Law could be framed by the Parliament. There is no clog on the powers of the legislature to prescribe such a condition by amending the appropriate law relating to the conduct of elections. The identity of a voter must be established before he can be allowed to cast his vote. If the legislature has laid down means for proving the identity, it is a matter clearly relating to procedure and cannot in any manner be construed as denial of a right to case vote.
The attention of the learned Division Bench was also not drawn to the judgment of the Supreme Court in Syed Akhlaque Hussain's case (supra) and for this reason also we have been constrained to re-examine the matter.
17. The condition of the production of identity cards was a real necessity for conducting fair elections. In our opinion, Act IX of 1991 amending the Representation of the People Act, 1976 was an instrument of regulation and the restrictions which it imposes are reasonable and in public interest and are to operate in aid of holding fair elections. It is a settled principle that in some' cases, power to regulate includes power to prohibit and regulatory provisions cannot be considered to be ultra vires or violative of fundamental right to exercise franchise. We are fortified in our view by the Government of Pakistan v. Syed Akhaque Hussain, etc. PLD 1965 SC 527 and Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623. It is well-settled that if the paramount legislation does not purport to be exhaustive or unqualified and permits making of other law restricting or qualifying the general provisions. Qualifications or restrictions introduced by the subordinate legislation cannot be said to be repugnant to the provisions of the main law.
It is clear from clause (1) of Article 51 that the Parliament has unfettered powers to enact, law to regulate the election while clause (2) of the said Article deals with the qualifications of a person, who is entitled to vote. The same object is dealt with by Article 326 of the Indian Constitution. The comparison of the two shows that the qualification of a voter is not only similar but more exhaustive in our Constitution. In Indian, the photographs on the National Identity Cards were made essential for the purpose of voting. The action was challenged on multiple grounds including that it is ultra vires of the Constitution and would amount to disfranchising a large number of voters. The decision is reported in Nirmal Kumar Sikdar v. Chief Electoral Officer and others AIR 1961 Cal. 289. As for the ultra vires part is concerned, it was held:-- It is true that Article 326 of the Constitution gives the right of franchise, but as pointed out above, the Article merely grants the bare right of franchise, whereas Article 327 lays that Parliament may, from time to time, by law, make provisions for regulating the 'right' of franchise so created. The Parliament has made ; such laws and therefore, these laws must regulate the exercise of the right of franchise. It is then said that by the making of rules, the Central Government has really destroyed the Constitutional right to franchise given by law, as also the rights given under the Act - -----------.. All that is said in these applications is that the power granted under Article 326 cannot be cut down".
It was further held that this condition is a part of election process and the Press Note imposing this condition was valid.
Now coming to the next argument of the learned counsel that amendment will not achieve any useful purpose because this condition is not applicable to the voters casing votes through postal ballots. To properly appreciate this argument it is to be seen who can cast vote through postal ballot. The relevant section is 29 of the Representation of People Act, 1976 providing for the eligibility of persons to cast their votes through postal ballots. It makes the following type of voters eligible for voting through postal ballots:-- (i)who is in service of Pakistan or holds any public office, or his wife; (ii)a person who is detained in prison or held in custody; and (iii)a person appointed by the Returning Officer including police personnel for the purposes of any duty in connection with an election at a Polling Station other than one to which he is entitled to cast his vote.
The case of electors intending to cast votes through postal ballot is entirely different from ordinary electors because the said facility is available only to a limited class falling in the above categories and they are allowed to cast votes after their proper identification by the Gazetted Officers or Commissioned Officer, etc. In the case of ordinary electors, production of National Identity Card was made compulsory to facilitate their identification and not to deprive them of their right to cast vote.
18. This argument loses sight of yet another angle. The whole purpose of this procedural provisions is to keep the election process clean. Now if there are chances or shortfall or defects in the system, then the efforts should be made to make it foolproof or perfect as far as possible in accordance with socio-economic and political conditions of the country rather than to discard it and make the whole process free for all. Such procedural restrictions are not unique. In fact, all the major democracies have regularised their elections.
19. In the Indian precedent case, one set of the persons who objected to the Press Note were Muslims. The argument was that since in Islam, women could not affix their photographs, therefore, it is against their religion to force them that they too should affix their photographs on the identity cards. The argument did not find favour and it was held after reference to all possible material that there is no such restriction in Islam.
20. The last argument was that a large number of bogus identity cards were found issued, by the Division Bench of this Court in the precedent case. Therefore, it will help to poll bag us votes rather than to keep the election process clean. This contention loses sight of voting procedure as prescribed in section 33 of the Representation of the People Act, 1976. For example, a voter has ten identity cards. He goes to the polling station and introduces himself. The Presiding Officer shall find out his number and name in the electoral roll, strike off the same, mark his thumb with indelible ink obtain thumb-impression and issue the ballot paper after stamping on its back. He gets the ballot paper and casts it. He has nine other identity cards. The question arises whether on the strength of these identity cards can he cast any other vote? The reply is in the negative because when he will request for issuance of another ballot paper, he will be refused because the entry relating to him has already been struck off. Conversely speaking, if a person with ten identity cards walks in a polling station and asks for a ballot paper and his name does not appear in the electoral roll, the question is can he get a ballot paper on the strength of any of the ten identity cards? The reply is again in the negative. This makes the proposition clear that production of identity cards is merely a procedural requirement for the identification of the voter and not for his entitlement to cast vote.
Therefore there, is no force in the argument that the production of identity card has been made as a qualification for the voter.
21. In order to ensure that maximum number of voters were issued I.D. Cards, we had directed the Registration Authorities to take all possible steps so that all the pending applications for the issuance of I.D. Cards were disposed of before 4th of October, 1993 with a further direction that it' any. Other application was received by the respective Registration Officers for the issuance of I.D.
Cards before 30th September, 1993 it shall also be disposed of in accordance with law by 4th October, 1993 without fail. Learned Deputy Attorney-General and Deputy Director Registration submitted before us a tabulated statement showing the number of applications received from 16- 7-1993 to 23-9-1993. According to it 22,82,386 applications were received, out of which 14,77,077 had been issued the I.D. Cards and the rest were under process. An assurance was given to us that the applications under process and those received up to 30th September, 1993 shall also be disposed of in accordance with law by 4th October, 1993.
22. Mr. Arif Iqbal Hussain Bhatti and his counsel Mr. Shahzad Jahangir felt satisfied with the statement made by the learned Deputy Attorney-General and the representative of the respondents. They, however, expressed some misgivings. According to them, the I.D. Cards may not be issued unless the applications were accompanied by domicile certificates and the police reports and that in some cases, the Registration Officer insisted that female applicants should appear personally at the time of submission of applications and at the time of receipt of I.D. Cards.
The learned Deputy Attorney-General and the representative of the respondents gave an undertaking before us that instructions had been issued to the Registration Officers not to insist upon the production of domicile certificates and the police reports and further that the female applicants may not personally appear for the collection of their I.D. Cards. They undertook to supply I.D. Cards to bona fide male members of their families. The above arrangements were given wide publicity in the order to ensure the issuance of I.D. Cards to the maximum number of people to enable them to cast their votes.
23. On 5-10-1993, another tabulated statement showing up-to-date position was placed before us.
According to it, all the applicants, whose applications were found to be in order, were issued I.D.
Cards and some I.D. Cards though prepared were still lying with the Registration Office for collection and approximately six lac applications were returned on various grounds. In order to ensure that no voter was denied the right to obtain I.D. Card, we directed that all the applications, submitted before 30th September, 1993 shall be finally disposed of with speaking orders and if found to be in order, I.D. Cards shall be issued to the applicants by 11 a.m. (6-10-1993, the election day) and for that purpose, all the Registration Offices were ordered to remain open till 11-00 a.m.
Although it was a public holiday on 6-10-1993.
24. For the reasons discussed above, we hold the provisions of the Representation of the People (Amendment) Act IX Q*f 1991 requiring the production of Identity Cards by the voters at the time of poll to be regulatory K and not confiscatory or repugnant to or in conflict with Article 51(2) of the Constitution of Islamic Republic of Pakistan, 1973 and in consequence, dismiss both the petitions, leaving the parties to bear their own costs.