' This judgment shall dispose of the following four writ petitions :-
(i) W. P. No, 824 of 1977 ;
(ii) W. P. No, 846 of 1977 ; W. P. No, 1038 of 1977 ; and (iv) W. P. No, 857 of 1977.
2. The Governor of the Punjab promulgated the Punjab Minor Minerals (Cancellation of Leases)
Ordinance in April 1977. Subject to the validity of the Ordinance, the effect thereof was that the petitioners' leases stood terminated. Subsequently this Ordinance was presented before the Provincial Assembly and it became an Act in June 1977 with the same effect. These writ petitions have been filed to challenge the vires of the Ordinance and the Act.
3. The first objection to the Act is that it lacks necessary provisions for compensation to the lease- holders as required under Article 24 of the Constitution. The learned counsel for the petitioners contend that the leasehold rights being rights in immovable property are themselves immovable property in view of the definition of property contained in Article 260 of the Constitution. It was, therefore, necessary under Article 24 of the Constitution to provide for compensation to the lease- holders when they were being deprived of the lease-hold rights in question. Section 4 of the Act no doubt speaks of some compensation but it is only In respect of roads and buildings constructed by the lease-holders and not for the loss of leasehold rights. The learned counsel accordingly contends that the Act is, and for the same reasons, the Ordinance was void by virtue of Article 8 of the Constitution.
4. The learned Assistant Advocate-General, however, points out that there being Emergency in the Country and the Proclamation of Emergency having been duly made, the power of the State was, on account of Article 233(1), no longer circumscribed by the restrictions contained in Article 24. But the argument advanced by the learned counsel for the petitioners in reply to this contention of the learned Assistant Advocate-General is that until an Order stipulated under clause (2) of Article 233 is made by the President, the provisions of Article 233 do not take effect 1 and since no such Order bad been made or was in force, the Legislature could not claim exemption from the restrictions imposed on its Legislative Powers by Article 24 or for that matter Articles 15 to 19. In my opinion, however, clause (1) of Article 233 is independent of clause (2) thereof. Clause (1) of Article 233 takes effect automatically the moment Emergency is proclaimed while under clause (2) of Article 233, suspension of th citizen's right to move any Court for the enforcement of the fundamental rights is not automatic. Such a right can, however, be suspended by an Order made by the President. Since in the instant case the Prcchmation of Emergency was indisputably in force when the Ordinance and the Act were promulgated neither the legislative discretion of the Governor nor that of the Provincial Legislature was fettered by the conditions laid down in Article 24. I am, therefore, of the view that as long as the Proclamation of Emergency is in force, the legislation in question cannot be said to be invalid at least on the ground that it is in violation of Article 24.
5. The second objection is based on the alleged incompetence of the Governor to promulgate the Ordinance or to give assent to the Act of the Provincial Assembly. In fact the precise contention of the learned counsel for the petitioners is that the de facto incumbent of the office of Governor was rot qualified to hold that office because be is a permanent resident of the Province of the Punjab ; and, in view of the provisions of Article 101 of the Constitution, as they stood at the relevant time, no person could be the Governor of the Province, after the first general elections to the National Assembly, of which he was a permanent resident. The learned Assistant Advocate-General points out that this condition was not applicable again in view of the Emergency. Article 101 of the Constitution was further amended by the 7th amendment to the Constitution. The effect of the amendment is that during the Emergency the President has the powers to appoint any person as the Governor of a Province, regardless of whether that person is a permanent resident of that Province or not. At any rate, he contends, the proviso to clause (2) of Article 101 which contains of condition is attracted only in case of future appointments and is no applicable to the Governors who are continuing in office since before the first general elections. I am also of the opinion that in view of the expression "shall not be appointed to be the Governor" used in the proviso which is distinct from "shall not hold office of the Governor", the Governor of the Punjab is not hit by the proviso, regardless of whether the elections to the National Assembly held on the 7th of March 1977 were elections in the true sense of the word and also regardless of whether the 7th amendment was competently made. It is, however, a different question as to whether the Provincial Assembly was competent to pass the Act in question as the validity of the elections to the Provincial Assembly held on the 10th o March 1977 is as much in doubt as that of the elections to the National Assembly.
6. I am of the opinion that the doubts regarding the legitimacy of an Assembly do have a bearing on the validity of the laws enacted by it including the amendments made in the Constitution by the National Assembly. But I am also of the view that the attitude of the Courts should not be the same with regard to a Constitutional amendment sought to be brought about by Parliament of doubtful legitimacy as with regard to a law passed either by such Parliament or by a Provincial Assembly of doubtful legitimacy. A mere doubt cannot be considered enough to vitiate a law until it is satisfactorily established that the Assembly, which made it, was indeed not competent to legislate.
But any reasonable doubt in respect of the legitimacy of the Parliament should be enough for the Superior Judiciary to declare it incompetent to bring about any change in the Constitution. For, every member of the Superior Judiciary in this Country is under an oath to preserve, protect, and defend the Constitution. And, the Constitution is the basic document on which rests the entire political, legal and social structure of the Country. In view of the sanctity of that document, it is our duty to see that no one other than the true sovereign should handle it. A pretender cannot be allowed to tamper with it. The sovereignty vests in the people alone (as delegatees from God).
Therefore, it is only the true representatives of the people whose representative capacity is beyond question that can lawfully amend the Constitution. It is, therefore necessary that the Parliament seeking to amend the Constitution should be one whose legitimacy is beyond all reasonable doubt. In the present case, however, it is only the validity of a Provincial Act that is in question. I am, therefore, of the opinion that unless it is established before a competent forum that members of the Provincial Assembly were not duly elected, it will not be proper for this Court to Invalidate the Act in question on the ground that the validity of the elections to the Provincial Assembly is not, free from doubt.
7. The learned counsel for the petitioners have also argued that the power of the State in the matter of making laws is not as unrestricted as it may appear at first sight to be from the wording of clause (I) of Article 233. According to them the power can be said to be unrestricted only where the State makes the law which has some relationship with the state of Emergency or which is concerned in some reasonable way with the purposes of the Emergency.
8. This is undoubtedly a very sound approach to the interpretation of any law in general. It has always been open to the Courts to spell out such restrictions as are not expressly mentioned in a law but lie hidden in the spirit thereof. But at the same time I am of the opinion that the Courts should always make a distinction between imposing restrictions on the Executive and imposing restrictions on the Legislature. We should be extremely circumspect while dealing with the powers of the latter. A legislative act can be struck down only when it is in clear conflict with any of the provisions of the Constitution. Apart from that we should leave the rest to the wisdom of the Legislature. It was for the Provincial Assembly itself to consider the propriety of taking advantage of clause (1) of Article 233 while passing the law in question. It is true that the law in question has no nexus with the Emergency. But I do not think it should be declared unconstitutional on that ground.
' For the reasons recorded above, I dismiss ell the four writ petitions with no order as to costs.