Constitutional Matters Precedents

ZAIN NOORANI VS SECRETARY OF THE NATIONAL ASSEMBLY OF PAKISTAN (PLD 1957 SC 46)

 P L D 1957 Supreme Court (Pak.) 46

 Present : Muhammad Munir, C. J., M. Shahabuddin,

 A. R. Cornelius, Muhammad Sharif and Amiruddin Ahmad, JJ

 ZAIN NOORANI?Appellant

 Versus

 SECRETARY OF THE NATIONAL ASSEMBLY OF PAKISTAN?Respondent

 Constitutional Civil Appeal No. 1 of 1956, decided on 24th January 1957.

 (On appeal from the Order of the High Court of West Pakistan, Karachi Bench, dated the 31st August 1956, in Writ Petition No. 338 of 1956).

 

National Assembly (Filling of Casual Vacancies) Rules 1956——

 

Rule 5 (2)?Providing, under Art. 213 (2), Constitution of Pakistan, for an electoral college for filling casual vacancies in National Assembly, in. transition period, in respect of seat vacated by a member from West Pakistan?Whether ultra vires Whether unnecessary because of S. 8, Constituent Assembly (Proceedings and Privileges) Act, 1955?Whether repugnant to Arts. 4 and 5, Constitution of Pakistan in that the electoral college is different from that prescribed in respect of a seat vacated by a member from East Pakistan?Whether subject to provisions of Art. 141, Constitution of Pakistan, in respect of period within which election should be held, and therefore void­ Art. 141, only directory.

 

Acting (under Art. 223′ (2) of the Constitution, the President framed the National Assembly (Filling of Casual Vacancies) Rules, 1956, which provided:

 

Rule 5 (1).?When the seat of any member of the Assembly elected by the Province of East Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who are at the time of such bye?election members of the Provincial Assembly of East Pakistan and if at the time of such bye?election that provincial Assembly stands dissolved persons entitled to vote to fill the vacancy shall be only those members of the Assembly who have been elected by the Province of East Pakistan.

 

(2) When the seat of any member of the Assembly elected by the Province of West Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who have been elected to the Assembly by the Province of West Pakistan.

 

A casual vacancy having occurred by the resignation of a member from West Pakistan, the appellant, a member of the Legislative Assembly of the Province of West Pakistan feeling aggrieved by the above?mentioned provisions of Rule 5, which provided electoral colleges for the two Provinces on a different basis, challenged the vires of the Rules on the following grounds 😕

 

(1) That the vacancy in question was a vacancy in the Constituent Assembly as it occurred prior to the Constitu­tion Day and therefore the provision made for the filling in of the casual vacancies in that Assembly viz., section 8 of the Constituent Assembly (Proceedings and Privileges) Act 1955 as amended by section 13 of the Establishment of West Pakistan Act, which under Article 224 of the Constitution continued in force, applied. Consequently the bye?election should have been held in accordance with the latter provision under which the West Pakistan Provincial Assembly of which the appellant was a member was the electoral college for filling a casual vacancy in the Constituent Assembly.

 

(2) That assuming that the rules framed by the President applied to the vacancy in question rule 5 of those rules was ultra vires as it conflicted with Article 5 of the Constitution and the amended section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955.

 

(3) That Article 141 of the Constitution applied to all casual vacancies and the bye?election should have been held within the time fixed in it. That the difficulty that arose from the election not having been held in the time fixed under the Constitution was one created by the Government” and that the President had no power to amend the Article to remove such difficulties.

 

Held, that under Article 223 (1) of the Constitution the entire strength of the Constituent Assembly became the strength of the interim National Assembly and consequently the vacancies in the Constitutent Assembly which remained unfilled by. the Constitution Day automatically became the vacancies in the interim National Assembly and that the vacancy in question could be filled ?in only in accordance with the rules framed by the President under the second paragraph of Article 223.

 

That as provision for filling in casual vacancies in the National Assembly had been made in Article 223 (2) the provision relating to the casual vacancies in the Constitutent Assembly was not saved by Article 224 of the Constitution.

 

That     section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955 was of no effect because it did not provide for an electoral college. The right to vote was a right that should be specifically conferred.

 

Raj Rajendra Malojirao Shitole and another v. State of Madhya Bharat A I R 1954 S C 259 distinguished.

 

Held further, that there was no question of a conflict between impugned Rule 5 and section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955 as the latter provision ceased to be in force from the Constitution Day.

 

As for conflict with Art. 5 of the Constitution it had to be noted that in Arts. 4 and 5, the term “law” referred to laws other than constitutional laws and that Rule 5 was not only a rule to conduct elections but also a provision conferring the right to vote which was a constitutional matter.

 

That Article 143 not being applicable to the transitional period the framers of the Constitution instead of making a provision for elections during that period left it to the President to frame rules not only in respect of the vacancies in the National Assembly but also with regard to the vacancies in the Provincial Assemblies. Articles 223 (2) and 225 (3) which gave the President these powers did not impose any limitations. That being so, Rule 5 which was impugned as unconstitutional was a provision of the Constitution appli­cable during the transitional period, and the ordinary limitations imposed on delegated legislation did not apply. These were not rules framed under the powers conferred by a legislature, but were rules which the framers of the Constitution intended to be a part of the Constitution during the interim period.

 

That even if it is assumed that the rule in question came within the expression `law’ in Article 4 it could not be said that it conflicted with Article 5.

 

That     mere differentiation or inequality in treatment does not amount to discrimination in contravention of Article 5 and that the Article prohibits only unreasonable or arbitrary differentiation having no rational basis with reference to the legislation.

 

That the basis   for differentiation between the two Provinces was that the two Provincial Assemblies were not alike and therefore the question of equal treatment did not arise. Differentiation was not without a rational basis having regard to the object in view.

 

Shankari Prasad Singh Deo and others v. The Union of India and others A I R 1951 S C 458 and Jibendra Kishore Accharya Chowdhury and others v. The Province of East Pakistan and others P L D 1957 S C (Pak.) 9 ref.

 

Further, that Art. 141 did not apply to the transitional period. The period during which election for a casual vacancy in the transition period was to be held was prescribed by Rule 3 of the Rules framed by the President under Art. 223 (2).

 

That in any case Art. 141 of the Constitution was directory and the object of a time limit in Art. 141 was to secure the prompt holding of by?elections.

 

Mahmud Ali, Advocate, Supreme Court, instructed by M. Siddique, Attorney for Appellant.

 

Faiyaz Ali, Attorney?General of Pakistan (Sharifuddin, Advocate Supreme Court with him) instructed by Iftikhar­uddin, Attorney for Respondent.

 

Dates of hearing: 17th, 18th, 19th, 20th & 21st Decem­ber 1956 and 7th & 8th January 1957.

 

JUDGMENT

 

SHAHABUDDIN, J.?—-This appeal, which has been brought on a certificate granted by the High Court of West Pakistan at Karachi, is directed against the decision of a majority of a Bench of five Judges of that Court dismissing the petition of the appellant for a writ restraining the respondent, the Secretary of the National Assembly of Pakistan, from holding a by?election which he had notified so as to be held on the 28th August 1956, in accordance with a National Assembly (Filling of Casual Vacancies) Rules framed by the President under Article 223 subsection (2) of the Constitution, which were challenged as void and unconstitutional.

 

The following material facts are necessary for appreciating the points in controversy between the parties:—–

­

The appellant is a member of the present Legislative Assembly of the Province of West Pakistan having been elected in January 1956, from Karachi by the Councillors of the Municipal Corporation of Karachi in accordance with the method prescribed under the Establishment of West Pakistan Act, 1955, for the election of members who were to consti­tute the West Pakistan Assembly when the old Provinces and States in West Pakistan were welded into one Province. Prior to the passing of the aforesaid Act, the Constituent Assembly, which passed the Constitution now in force, was elected under the Constituent Assembly Order No. 12 of 1955. It consisted of 80 members, 40 elected by persons who had been elected to the Provincial Legislative Assembly of East Bengal and of the other 40, 30 were elected by the persons who had been elected as members of the then Punjab, North?West Frontier and Sind Provincial Assemblies, one by the members of the Shahi Jirga and the non?official members of the Quetta Municipality and one by the members, of the Municipal Corporation of the City of Karachi, As regards the reaming eight seats, the Constituent Assembly Order authorised the Canstituent Assembly to make arrange­ments for the representation of Bahawalpur State, the Baluchistan States Union, Khairpur State, the Frontier States and the Tribal Areas. Bahawalpur State was given two representatives, the Tribal areas three and the other three constituencies one each. Arrangements for the representation of these units were made by the new Constituent Assembly, and that Assembly of 80 members met and proceeded with the task of framing the Constitution. With regard to the casual vacancies in this Constituent Assembly, the Governor ­General’s Order provided that it shall be filled in accordance with the provisions made in that behalf by the Constituent Assembly pursuant to the proviso to subsection (3) of section 19 of the Indian Independence Act; and the Consti­tuent Assembly made such a provision in section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955, which was to the effect that whenever a vacancy occurred in the Assembly, the Speaker should within 7 days notify it in the Gazette, and if the vacancy was in respect of a member from a Governor’s Province, the Governor should appoint a Returning Officer who should conduct the election in accordance with the Rules in the Schedule to the Act. That section as well as the rules made provision for filling in the vacancies in respect of the members from other units also. At the time this Act was passed, the Establishment of West Pakistan Province had not taken place. The Act passed for this purpose came into force only in October 1955, and as under that Act the old Provinces of Punjab, North?West Frontier and Sind disappeared, section 8 of the Privilege Act referred to above was substituted by a new section under section 13 of the West Pakistan Act in respect of the filling in of casual vacancies in the Constituent Assembly. The new Constituent Assembly enacted the Constitution on 29th February 1956, and it came into force on 23rd March 1956. Article 1 of this Constitution provides that there should be two Provinces, one of East Pakistan and the other of West Pakistan set up by the Establishment of West Pakistan Act, 1955. Articles 43 and 44 provide that there shall be a Parliament of Pakistan comprised of the President and one House known as the National Assembly, consisting of 300 members, one?half elected from constituencies in East Pakistan and the other half from constituencies in West Pakistan. Provision is made in Articles 76 and 77 for the establishment of a Provincial Legislature consisting of 300 members in each of, the two Provinces. Pending the ? election of these Assemblies, it was provided under Article 223 (1) that the body function­ing as the Constituent Assembly of Pakistan, immediately before the Constitution Day, shall from that day be the National Assembly of Pakistan and Article 225 provides that the Assemblies of the Provinces functioning as such im­mediately before the Constitution Day shall exercise the powers conferred and duties imposed on the Provincial Assemblies by or under the Provisions of the Constitution. With “regard to the casual vacancies in. these Provisional Assemblies, Article 223 (2) in the case of National Assembly and Article 225 (3) in the case of Provincial Assemblies provide that those vacancies shall be filled in accordance with such rules as may be made in that behalf by the President. These rules have been framed and the main question for determination in this appeal is whether rule 5 of the Rules framed by the President in respect of casual vacancies in the Provisional National Assembly is ultra vires.

 

This question arose in the following circumstances. Mr. Mushtaq Ahmad Gurmani, the present Governor of West Pakistan, who was elected to the Constituent Assembly by the old Punjab Legislative Assembly in accordance with the Constituent Assembly Order XII of 1955, resigned his member­ship on the 18th of March 1956 and his resignation was accepted with effect from that day. The respondent, the Secretary of the National Assembly, notified the acceptance of Mr. Mushtaq Ahmad Gurmani’s resignation and the consequent vacancy. Then followed a Notification on the 24th May 1956, calling for nominations for filling the vacancy; and on 20th August 1956, a Notification was issued by the respondent publishing the names of the persons nominated and stating that a poll would be held for filling the vacancy on 28th August 1956. The petition out of which this appeal arises was filed by the appellant on the 22nd of August 1956, for a writ restraining the respondent from holding the by­ election. In view of this petition the election which had already been notified was not held, and 5th of September was fixed for the holding of the election. The appellant’s petition was dismissed on 31st August but this Court stayed the election till the 8th of September when the request of the appellant for further stay was refused, as both sides agreed that the holding of the election would not cause prejudice to the appellant in case the position he was taking in the appeal, viz. that the Rule in question was void was upheld. Sub­sequent to this order the election was fixed for the 18th September on which date Mr. Amjad Ali, the Minister for Finance, Government of Pakistan, was declared elected in the casual vacancy on a poll held that day.

 

Under Article 141 of the Constitution, by?election to fill a casual vacancy should be held not later than three months from the date of the occurrence of the vacancy, unless the Chief Election Commissioner owing to climatic conditions extends the time, but even in that case the election should be held not later than six months from the date of the vacancy. As 18th of September, on which day the election was held, was beyond the period referred to in the above?mentioned Article, the President under Article 234 of the Constitution, which for the purpose of the removal of difficulties gives him power to amend or adapt any of the provisions of the Constitution, passed Order VII of 1956 on the 9th June 1956, adding a proviso to Article 141 of the Constitution to the effect that a by?election to fill a casual vacancy in the National Assembly functioning under clause (1) of Article 223 and a Provincial Assembly under clause (1) or (2) of Article 225 maybe held not later than six months from the date of the occurrence of the vacancy, and the Chief Election Com­missioner might notwithstanding anything in the first proviso hold a by?election after six months, but not later than nine months from the date of the occurrence of the vacancy. ‘Subsequent to the dismissal of appellant’s petition by the High Court the President passed another Order No. 11 on the 5th September 1956 ” under Article 234 amending clause (2) of Article 223 by inserting after the words “Any casual vacancy” the following words:?

 

“Which having existed immediately before the Constitu­tion Day in the body functioning as aforesaid has not been filled on that day in the National Assembly or which occurs on or after that day.”

 

Both these Orders were made retrospective in effect. The validity of these orders also has been questioned before us.

 

As indicated already the majority of the Judges, four out of five, who heard the appellant’s petition dismissed it. One of the contentions placed before the High Court was that there was lack of bona fides in the framing of the Rule in question, but this ground was given up at the time of the hearing. The main questions considered by the Bench were whether rule 5 fixing the electoral colleges was hit by Articles 4 and 5 of the Constitution; whether Article 141 applied to casual vacancies and if so the President had powers to amend that Article; and whether section 8 of the Consti­tuent Assembly Privileges Act as amended by section 13 of the West Pakistan Act was the provision governing the filling in of the casual vacancy in question or the Rules framed by the President. On the first point four of the Judges held that the classification made with regard to the electoral college in rule 5 was reasonable and Articles 4 and 5 of the Consti­tution did not affect the validity of that rule. As regards Article 141, Constantine, J, with whom Muhammad Baksl1, J, agreed held that that article was applicable to the vacancy in question, but that the President’s Order extending the period mentioned in that Article was valid, while Inamullah and Wahiduddin, JJ. took the view that Article 141 did not apply to the casual vacancy during the transitional period and that the President’s order was beyond the scope of Article 234. All the four Judges agreed that section 8 of the Privileges Act as amended by the West Pakistan Act did not apply. Lari, J. however was for allowing the petition of the appellant. He considered that the, classification in rule 5 was unreasonable and arbitrary clearly offending Article 5, that Article 141 did apply to casual vacancies and the President’s order extending the period mentioned in that Article was ultra vires; and that section 8 of the Privileges Act as amended by the Establish­ment of West Pakistan Act governed the case in question.

 

The contentions advanced before us by Mr. Mahmud Ali for the appellant may be summarised as follows:

 

1. The vacancy in question was a vacancy in the Consti­tuent Assembly as it occurred prior to the Constitution Day and therefore the provision made for the filling in of the casual vacancies in that Assembly viz. section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955 as amended by section 13 of the Establishment of West Pakistan Act, which under Article 224 continues in force, applied. Conse­quently the by?election should have been held in accordance with the latter provision under which the present West Pakistan Provincial Assembly of which the appellant is a member is the electoral college for filling a casual vacancy in the Constituent Assembly.

 

2. Assuming that the rules framed by the President under paragraph 2 of Article 223 applied to the vacancy in question rule 5 of those rules is ultra vires as it conflicts with Article 5 and amended section 8 of the Constituent Assembly (Proceedings and Privileges) Act, 1955.

 

3. Article 141 applies to all casual vacancies and the by­ election should have been held within the time fixed in it. The difficulty that arose from the election not having been held in the time fixed under the Constitution was one created by the Government and the President had no power to amend the Article to remove such difficulties.

 

Before dealing with these points it will be convenient to set out here Articles 5, 141, material portions of Articles 223, 224 and rule 5 of the rules framed by the President under Article 223 (2) as on the true constructions of these provisions the arguments in this case have largely turned.

 

Article S.?(1) All citizens are equal before law and are entitled to equal protection of law:

 

(2) No person shall be deprived of life or liberty save in accordance with law.

rticle 141.?Whenever the National Assembly or a Pro­vincial Assembly is dissolved, a general election for the reconstitution of the Assembly shall be held not later than six months from the date of dissolution; and whenever a casual vacancy occurs in any such Assembly, a by?election to fill the vacancy shall be held not later than three months from the date of the occurrence of the vacancy:

 

Provided that the Chief Election Commissioner may, if in his opinion climatic conditions so require, hold a by?election at any time after three months, but not later than six months from the date of the occurrence of the vacancy.

 

Article 223.?(1) Until the first meeting of the National Assembly constituted in accordance with the provisions of the Constitution, the body functioning as the ‘ Constituent Assembly of Pakistan, immediately before the Constitution Day, shall, as from that day, be the National Assembly of Pakistan.

 

(2) Any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as maybe made in that behalf by the President

 

Article 224.?(1) Notwithstanding the repeal of the enact­ments mentioned in Article 221, and save as it otherwise expressly provided in the Constitution, all laws (other than those enactments), including Ordinances, Orders?in?Council, Orders, rules, by?laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra territorial validity, immediately before the Constitution Day, shall so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority.

 

Rule 5.?(1) When the seat of any member of the Assembly elected by the Province of East Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who are at the time of such by?election members of the Provincial Assembly of East Pakistan, and if at the time of such by?election that Provincial Assembly stands dissolved persons entitled to vote to fill the vacancy shall be only those members of the Assembly who have been elected by the Province of East Pakistan.

 

(2) When the seat of any member of the Assembly elected by the Province of West Pakistan falls vacant, a person shall be elected thereto and at such election only those persons shall be entitled to vote who have been elected to the Assembly by the Province of West Pakistan.

 

In elaborating the first point Mr. Mahmud Ali argued that the words “a casual vacancy in the National Assembly” in paragraph 2 of Article 223 referred to a vacancy occurring on or after the Constitution Day and therefore, the rules the President framed under paragraph 2 will apply only to those vacancies and not to the ones that had occurred before that day. On the learned Attorney?General contending that vacancies in the Constituent Assembly which were unfilled by the Constitution Day automatically became under Article 223 (1) vacancies in the National Assembly, Mr. Mahmud Ali submitted that the words the body func­tioning as Constituent Assembly in that paragraph referred only to the persons who were members of that Assembly immediately before the Constitution Day and not to the seats of the Constituent Assembly which were vacant that day. In support of this contention he cited the decision of the Supreme Court of India in Raj Rajendra Malojirao Shitole and another v. State of Madhya Bharat (A I R 1954 S C 259 at p. 263) where an Act passed by the State Legislature of Madhya Bharat and impug­ned on the ground that that body was not constituted as per the instrument which brought it into existence was held to be valid despite the above defect because under Article 382 of the Indian Constitution which is similar in effect to Article 225 of our Constitution, bodies functioning as State Assembly immediately before the Constitution Day were empowered to exercise the powers conferred and perform duties imposed on State Assemblies by the Constitution. In coming to this conclusion the learned Judges made the following observation on which Mr. Mahmud Ali relied.

 

“The Constitution?makers wanted to indicate the arrange­ments made by them for the interval with certain amount of definiteness in order to avoid any disputes during the interim period as to who the body or authority was, to exercise the powers conferred by the provisions of the Constitution. They therefore chose the formula that whichever body or authority or House or Houses of Legislature was actually functioning immediately before the commencement of the Constitution would be the body or authority or the House that would exercise the powers and perform, the duties conferred by the provisions of the Constitution on the House, body or authority specified in the Constitution. They did not take any risk on this question and the bodies actually functioning were like `persona designata’ invested with powers conferred by the Constitution.”

 

But this observation only makes it clear that the pro­visional Legislatures were the Legislatures functioning imme­diately before the Constitution. It merely compares the bodies so functioning with persona designata invested with powers and does not say that the bodies were persona designata. However it relates more to the competency of the provi­sional Legislatures than to their composition and the decision is not relevant as the question before the learned Judges was an entirely different one.

 

One of the definitions of the word `body’ in the Oxford Dictionary is `an artificial person created by legal authority for certain ends.’ We have no doubt that the expres­sion `body’ in the first paragraph of the Article 223 of our Constitution was used to indicate the artificial person the assembly and not only its members. If the intention was that the provisional National Assembly should consist of only those who were members of the Constituent Assembly on the Constitution Day the paragraph in question would have said so specifically; but in the nature of things that could never have been the intention. Article 44 fixed 300 members as the strength of the National Assembly while the Constituent Assembly consisted of only 80 members. It was absolutely necessary to make this smaller body function as National Assembly during the interim period as there was no other convenient alternative. But there was no reason whatsoever to reduce further the strength of the interim assembly by leaving out the vacant seats and confining it only to the seats that were occupied immediately before the Constitution Day. Article 44 further provides parity between the two wings of Pakistan in the composition of the National Assembly and the importance of maintaining this parity cannot be over?emphasized. That the question of parity between East and West Pakistan was the most important question in the framing of our Constitution is common knowledge. In fact the Constituent Assembly which under Article 223 automatically became the interim National Assembly was itself composed on the basis of parity. The interpretation contended for by Mr. Mahmud Ali, it accepted, would lead us to this absurd result that the Constituent Assembly having itself been constituted on the parity basis and having framed the Constitution on that basis decided for no conceivable reason that for the interim period the parity need not be maintained. We therefore consider that under Article 223 (1) the entire strength of the Constituent Assembly became the strength of the interim National Assembly and consequently the vacancies A in the Constituant Assembly which remained unfilled by the Constitution Day automatically became the vacancies in the interim National Assembly.

 

The learned Attorney?General relied in this connection also on President’s Order XI of 1956 dated 4th September 1956 passed under Article 234 amending Article 233 (2) so as to make it clear that the expression “casual vacancy” mentioned there included a vacancy which having arisen before the Constitution Day remained unfilled by that day Mr. Mahmud Ali argued that this order was beyond the scope of Article 234. In the view we take of the first paragraph of Article 223 we do not think it necessary for the purposes of this case to deal with this contention.

 

It therefore follows that the vacancy in question could be filled in only in accordance with the Rules framed by the President under the second paragraph of Article 223. As for the provision for filling up vacancies in the Constituent Assembly on which Mr. Mahmud Ali strongly relied, it does not specify the electoral college for the “casual vacancy”. Under the original section 8 of the Constituent Assembly (Proceedings and Privileges Act), 1955 the election to a casual vacancy in that Assembly was to be held in accordance with the rules in the schedule to that Act, but those rules specified only the persons who could nominate the candidates for election and not the persons who were ­entitled to vote. The electoral colleges indicated in the Constituent Assembly Order of 1955 disappeared with the coming into force of the Establishment of West Pakistan Act and section 8 of the Constituent Assembly (Proceedings and Privileges) Act 1955 was amended by section 13 of the West Pakistan Act but even this amended provision does not specify the electoral college for a casual vacancy in the Consti­tuent Assembly. For instance the amended section 8 states that as far as West Pakistan is concerned the Governor should take steps to fill the vacancy and appoint an election officer who should hold the election according to the rules in the Schedule to the Act. Rule 2 of the Schedule provides that any person who is a member of the Legislative Assembly of the Province may nominate any person to be a candidate but there is nothing in it or in the other rules to indicate the persons entitled to vote. This aspect of the matter does not appear to have been considered by the Court below, and when it was pointed out in this Court Mr. Mahmud Ali contended that it should be taken that persons entitled to nominate the candidates were the persons entitled to vote for the casual vacancies, as otherwise that provision of the Act would not make sense We are unable to accept this contention as the right to vote is a right that has to be specifically conferred. The provision which according to Mr. Mahmud Ali should have been applied in the by?election to the vacancy in question was therefore of no effect. Even if it had specified the electoral college it could not apply, as from the Constitution Day it ceased to be in force when the Constituent Assembly with its full strength automatically became the Provisional National Assembly. The argument that Article 224 kept the provision alive overlooks the words “save as otherwise expressly provided in the Constitution” occurring in it. As provision for filling in casual vacancies in the National Assembly has been made in Article 223 (2) the c provision relating to the casual vacancies in the Constituent Assembly is not saved by Article 224.

 

As for the second point, namely, that rule 5 of the National Assembly (Filling of Casual Vacancies) Rules 1956 framed by the President is in conflict with Article 5 of the Constitution and section 8 of the Privileges Act, as amended by section 13 of the West Pakistan Act, the question of the rule being in conflict with the last?mentioned provision does not arise in view of the above conclusion that that provision F ceased to be in force from the Constitution Day. Regarding the alleged conflict with Article 5 of the Constitution, the, contention of the learned Attorney?General was that the term `law’ in Articles 4 and 5 refers to laws other than constitutional laws, that rule 5 i.e., the rule in question, relates to a constitutional matter and therefore it is not affected by the aforesaid Article. In support of this contention he relied on the decision of the Supreme Court of India in Shankari Prasad Sirtgh Deo and others v. The Union of India and others (AIR 1951 SC458) where it was held that Article 13 (2) of the Indian Constitution which is to the same effect as Article 4 of our Constitution did not apply to Constitutional Laws. Referring to the term `law’ in Article 13 (2) of the Indian Constitution the learned Judges observed that the framers of the Constitution “must have had in mind what is of more frequent occurrence,        i.e., invasions of the rights of the subjects by the legislative and the executive organs of the State by means of laws and       rules made in exercise of their legislative power and not the         abridgement or nullification of such rights by alteration of the      Constitution itself in exercise of sovereign constituent power”. Mr. Mahmud’ Ali did not dispute the proposition with which we, with respect, agree, but he distinguished this       decision on the ground that there the provisions considered were amendments of the Constitution by the provisional Parliament, while in the present case we are concerned with rules framed regarding elections. These rules, he argued, were on the same footing as the Electoral Laws, which the National Assembly is authorised to enact under Article 144 of the Constitution, would be when enacted. According to him, if those electoral laws when enacted are inconsistent with Article 5 they would be void to the extent of the inconsistency and the same would be the effect if the rule in question is considered to be in conflict with Article 5 This contention overlooks the facts that rule 5 of the Rules framed by the President is not a mere rule about the conduct of the elections but is on the other hand a provision conferring the right to vote on certain persons which is a constitutional matter. It is therefore on the same footing as Article 143 which specifies the qualifications of the electors and is a part of the Constitution. That Article H does not apply to the transitional period and the framers of the Constitution instead of making a provision for elections during that period left it to the President to frame rules not only in respect of the vacancies in the National Assembly but also with regard to the vacancies in the Provincial Assemblies. Articles 223 (2) and 225 (3) which give the Presi­dent these powers do not impose any limitations. That being so, rule 5 which is impugned as unconstitutional is a provision of the Constitution applicable during the transitional period, and the ordinary limitations imposed on, the delegated legislation do not apply. These are not rules framed under the powers conferred by a legislature, but are rules which the framers of the Constitution intended to be a part of the Constitution during the interim period.

 Even if it is assumed that the rule in question comes within the expression ‘law’ in Article 4 it cannot be said that it conflicts with Article 5. That provision denotes two concepts “equality before law” and “equal protection of law”. According to Mr. Mahmud Ali the expression “all are equal before law” should be taken as having the same connotation as “equality before law” in Article 14 of the Indian Constitution and he defined the expression as meaning that like should be treated alike. At the outset he argued that there was no practical difference between the two expressions as they both aim at equal status, but in his reply he submitted that there was a difference which he illustrated by saying that if his contention that the provisions made for filling in the casual vacancy in the Constituent Assembly applied to the vacancy in question is rejected and it is held that the President had to find an electoral college he would rely on the “all are equal before law” part of the Article as making it obligatory on the President in the conferment of the right to vote not to make an arbitrary discrimination between the two provinces. But if his contention regarding the earlier provision is upheld then the other part of the Article viz., “equal protection of law” would apply. The equal protection clause in the American Constitution has been regarded not only as prohibiting discriminating and partial legislation but also as having reference to the way the law is administered. It is however not necessary in this case to discuss this subject at any length as it was not disputed that for the application of either of the principles equality between the parties con­cerned is (not ?) essential, that mere differentiation or inequality in treatment does not amount to discrimination in con­travention of Article 5 and that the Article prohibits only x unreasonable or arbitrary differentiation having no rational basis with reference to the legislation. In addition to these principles which have to be borne in mind in dealing with cases of impugned classifications the following observation in Wilis Constitutional Law of U. S. A. 1936 Ed. 579 has also to be kept in view:?–

 

“If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis”.

 On this part of the case the learned Attorney?General contended that the two Provincial Assemblies were not alike and therefore the question of equal treatment did not L arise. The East Pakistan Assembly was elected by direct election on adult franchise, while the Assembly of West Pakistan was elected indirectly and in the case of Punjab, Sind, North?West Frontier Provinces by members elected to the Legislative Assembly of the Province from the constituencies included in the districts of the Province. Mr. Mahmud Ali while conceding that there was this difference between the two Assemblies argued that the difference was not of sufficient importance with reference to the object of legislation and he also referred to the fact that both the legislatures were given the same power and status during the interim period under the Constitution: But in our opinion the difference is important with reference to the object of the impugned rule. As pointed out by Constantine, J. in the judgment under appeal the process by which the West Pakistan Assembly was elected cannot be said to have resulted “in a faithful reproduction of the political complexion of the former Assemblies in the corres­ponding section of the new Assembly”. The recognition of this legislature as a Provisional Provincial Assembly under the Constitution does not make it more representative than what it really is. The difference is material enough to afford a reasonable ground of differentiation.

 Another point urged by the learned Attorney General in this connection was that in fact there is no discrimination made by the rule in question as according to it in case East Pakistan Assembly stood dissolved the electoral college for East Pakistan Province would be the same as for the Province of West Pakistan. Mr. Mahmud Ali’s reply was that in view of Article 225 of the Constitution under which the present Provincial Assemblies shall continue to act as such during the period of transition, their dissolution during that period is not possible, and therefore there is no chance of East Pakistan having the same electoral college as West Pakistan. It is unnecessary to decide in this case whether the Provincial Assemblies can during the period of transition be dissolved, as assuming, without deciding it, that they cannot be so dissolved and therefore there is J discrimination, it is quite clear that the differentiation as already indicated is not without a rational basis having regard to the object of the enactment.

 The object of the rule was to find an electoral college for the “casual vacancy” in the National Assembly and in this respect the President had in East Pakistan the Assembly of that Province, which was the original electoral college for the Constituent Assembly as far as that Province was concerned. As for West Pakistan he had before him the of West Pakistan Assembly as well as the precedent of the first Constituent Assembly itself having co?opted in 1950 members from the old Punjab Province when its Assembly din, stood dissolved under section 92?A Government of India Act. He preferred to follow the precedent of the Constituent Assembly by constituting the members elected from West Pakistan the electoral college and directing an election by single transferable vote. Mr. Mahmud Ali’s contention is that the President should have taken the present West Pakistan Assembly as the electoral college as in effect it is the successor of the old electoral colleges or in the alternative, he should have revived the old electoral colleges as he did in respect of the casual vacancies for the West Pakistan Provincial Assembly. His objection to, the electoral college selected by the President is that persons who do not belong to the old Punjab Province have practically no chance of being elected as 21 out of 40 members of the National Assembly come from that area. He pointed out that if there be a vacancy of the Karachi seat no representative of Karachi would be entitled to vote. He also referred to the great disparity in the number of electors between the electoral college of East Pakistan and that for West Pakistan suggesting that this in effect dis­enfranchised certain sections of persons. In this connection he cited three decisions of the Supreme Court of United States of America. Two of them dealt with the 15th Amendment of the American Constitution which provides against the denial or abridgement of the right of citizens of the United States to vote “on account of race, colour, or previous condition of servitude”. In the third case where the right to equal protection of the law was invoked a complaint that the constituencies were of glaringly unequal populations was dismissed by a majority of Judges who heard the case. None of these cases seems to us relevant to the point under consideration. There is no question here of discrimination on the ground of race or religion, nor are we concerned with the question of delimitation of constituencies.

 The contentions of Mr. Mahmud Ali assume that the classification should be perfect and unassailable, but that that is not the standard which Courts should have in view is clear from the following observations in the judgment of this Court in Jibendra Kishore Achharyya Chowdhary and others v. The Province of East Pakistan and others (P L D 1957 S C (Pak.) 9), delivered on the 17th January 1957:?–

 

“Whatever else the expression equal protection of law” may mean, it certainly does not mean equality of operation of 1rgislation upon all citizens of the State.

 But notwithstanding the disinclination of the Court to give an all?inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the law which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalisation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legis­lature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts”.

 Applying these tests we find that the classification made in the rule in question cannot be said to be unreasonable or arbitrary. The difficulty pointed out by Mr. Mahmud Ali of candidates from areas other than the old Punjab Province not having a chance in the present electoral college is not relevant in view of the object of the West Pakistan Act which was to integrate the former Provinces and units of this part of the country. The mere disparity in number of electors between the two electoral colleges cannot, in our opinion, be a sufficient ground for rejecting the classification, as unreasonable or arbitrary. As regards the suggestion that the old electoral college could have been revived as has been done in the case of the “casual vacancies” in the West Pakistan Assembly it may be that that course was not followed because as pointed out by Inamullah, J. in the judgment under appeal the Constituent Assembly for reasons best known to itself had not given representation in the Provincial Assembly of West Pakistan to certain class of persons to whom it had given representation in the Constitutent Assembly.

 As for the third point namely that the elections should have been held within the time fixed in Article 141 it is clear from the part of the Constitution in which the Article occurs that it does not apply to the transitional period. As bas been N pointed out already Article 223 (2) which gives the President power to frame the rules for the “casual vacancy” does not impose any limitation on his exercise of that power and the rules which he framed were intended to be, a part of the Constitution during the period of transition. Rule 3 of these Rules is to the effect that when a “casual vacancy” occurs the Speaker of the Assembly shall within 7 days of its occurrence give notice in the official Gazette and as soon as may be reasonably practicable thereafter steps shall be taken to fill the vacancy in accordance with the rules. It is this rule that would apply to the elections in the period of transition and not Article 141. Even if it is considered that Article 141 does not apply the fact that the election was held beyond the time fixed in that Article does not invalidate it. As has been pointed out by Wahiduddin, J. in the judgment under appeal the Article is directory and the following passage quoted by him from Maxwell on the Interpretation of Statutes is a P complete answer to the argument of Mr. Mahmud Ali on this point 😕

 “On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescription seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time.

 Thus, the 13 Hen. 4 (c. 7), which required justices to try rioters ‘within a month’ after the riot, was held not to limit the authority of the justices to that space of time, but only to render them liable to a penalty for neglect.

 To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would, in effect, put it in the power of the, person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for accep­tance”.(10th Edition p. 3867 Maxwell Interpretation of Statutes.)

 The object of fixing a time limit in Article 141 was to secure the prompt holding of by?elections. This was done obviously because in the past there were several instances o casual vacancies remaining unfilled for a long time. If the provision fixing the time limit is not considered as merely directory than the very object of fixing the limit would bet defeated for if once it is to be found that an election held beyond time is not valid then it would help the persons who are interested in not holding the by?elections and cause prejudice to the right of the people of the area concerned to have their representatives in the Assembly. We have how­ever no doubt that the Article itself is not applicable to this case In this view it is unnecessary to discuss the question whether the President’s order amending this Article is ultra vires.

 We therefore dismiss the appeal and make no order as to costs.

 A.H.                                                                                                     Appeal dismissed.

 

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