P L D 1990 KARACHI 342

Per Tanzil-ur-Rahman Actg. C.J.(a) Constitution of Pakistan (1973), Articles 29 TO 40:
In this judgment the Honorable Supreme Court, while giving an exhaustive
discourse on the principle of interpretation of the Constitution, observed that:–

The harmony and the consistency between Article 25 and Article 22 of the constitution is obvious notwithstanding the generality of the one and the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the ground of sex and sex alone. If in Article 22 the word “sex” had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under Article 25 would have become impermissible in educational institutions with regard to admission therein. The girls would have sought admission in institution exclusively reserved for boys and the boys would have sought reservation in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls was kept exclusive for the purpose of and within the limitation of clause (3) of Article 25. As the two Articles 25 and 22 stand at present, the general rule is that “sex” cannot be adopted as the sole criteria for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article 25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively creating to the needs of the male population and also educational institutional institutions catering exclusively the female population in our society. However, when an educational institution is thrown open for co-education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation of Constitutional mandate.”

“The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females. Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility.”

An lastly, invoking the principles of policy contained in Article 37 of the Constitution in aid to the provision of the Constitution of Article 25(2), it was observed that:–

“However, the consensus has developed that the basic principles of policy should be considered to be a part of the Constitution and other Provisions of the Constitution should not be interpreted totally losing sight of it. A harmony should be struck as far as possible without of course enforcing in positive terms the basic principles of policy or allowing them to supersede the fundamental rights or in any manner curtailing what is mandated in the Constitution. To that extent the learned counsel for the appellants is justified in referring to the affirmative, terms of the basic principles of policy contained in Article 37 calling upon the State to make technical and professional educational institutions generally available and higher education equally accessible to all on the basis of merits.” [p. 353, 354] C D

“Although the Directive Principles of State Policy confer no legal rights and create no legal remedies, they appear to be like an instrument of Instructions, or general recommendations addressed to all authorities in the Union reminding them of the basic principles if the new social and economic order which the Constitution aims at building. These fundamental axioms of State Policy, though of no legal effect, have served as useful beacon-lights to Courts. It has been held in the context of the directive principles that legislation making the land resources of the country effectively available to the larger mass of the cultivating community in acquisition of the lands for a Public purpose. Restrictions imposed by laws on the freedom of the citizen may well be reasonable if they are imposed in furtherance of the directive principles. Thus these principles hace helped the Courts in exercising their power of judicial review. They will, therefore, not only form dominating background to all State action, legislative or executive, but also a guide, in some respects, to Courts. The directive principles are but an amplification of the Preamble to the Indian Constitution which bases the authority of the Constitution of India on the solemn resolve of the people of India to secure to all its citizens justice in the social, economic and political fields: Liberty in all spheres, Equality of status and opportunity: and the promotion among them all of Fraternity assuring the dignity of the individual and the unit of the Nation.” [p. 354] F.
Order accordingly.

Advocate for the Petitioners (in C.Ps. Nos.D-168 to D-170, D-241 of 1990)

Hyder Raza Naqvi .

Advocate for the Petitioner (in C.P. No.D-176 of 1990).

A. Ghaffar Siddiqui.

Advocate for the Petitioner (in C.P.No.D-206 of 1990).

Mrs. Rasheeda Patel.

Advocate for the Petitioner (in C.P. No. D- 225 of 1990).

Abu Tahir Muhammad.

Advocate for the Petitioners (in C.P. No. D-258 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.P. No. D-265 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.Ps. Nos. D-274 to D-278) of 1990)

Obaidur Rahman and Muhammad Tasnim.

Advocate for the Respondents (in all Civil Petitioners).

Abdul Hafeez Lakho A. -G.

Date of hearing: 28th and 29th March, 1990.

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