The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Tanzil-ur-Rahman, Actg. C.J.

(a) Constitution of Pakistan (1973), Articles 25, 22 & 37:

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

“Thus, there is no bar to the superior judiciary in the performance of the functions and duties and in exercise of its jurisdiction and powers to act or to declare law in accordance with those principles. To put it differently, the judiciary like other organs and authorities is immune relatable to principles of policy. If it takes any action or declares any law in accordance therewith, there is nothing in this Article to prevent it from doing s. this discussion on the bars relating to the enforcement of, or actions in accordance with, the principles policy leads to an irresistible conclusion that qua the judiciary (through it cannot direct policy) there is nothing to prevent itself from acting on those principles subject of course to some other constitutional limitations and important compulsions qua the statute law which would be spelt out separately”. [p. 354] E

We may, however, add that Islam is the greatest exponent of equality before law. The famous Hadith of the Holy Prophet (Allah’s Blessing be on him) is very significant in this respect, when he said, “It was the usual practice in the past that if ordinary persons committed a crime they were punished, but if an important person was found guilty he was let off. If Muhammad’s daughter, Fatima, is ever found guilty of stealing I would have her hand cut off.” We may also refer to a passage from “Introduction to Islam” by Dr. M. Hamidullah, Central Cultural Islamique, Paris, a renowned Scholar Islam, published by Sh. Muhammad Ashraf, Lahore 1968 page 125, while discussing about equality before law; a context relevant to the present case, writes:–

“310. It goes without saying that if a chieftain has himself a bad conscience, having committed a prohibited thing, he would have little courage to reproach others about that thing. Therefore Islam has struck at the root and the source of this kind of evil, and declared that nobody is exempt from obligations, not even the sovereign, not even the Prophet. The teaching as well as the practice of the Prophet Muhammad, followed by his successors, requires that the head of the State should be fully capable of being cited before the tribunals of the country, without the least restriction. The Islamic traditionals of the country, without the least restriction. The Islamic tradition has been that judges never hesitated in practice to decide even against their sovereigns in cases of default. [p.359] N, O & P.

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.