PLD 1990 SC 295




Pre Shafiur Rehman, J.

(a) Constitution of Pakistan (1973), Article. 185, 25(2)(3), 22(3)(b), 8—

Leave to appeal was granted in twelve cases to examine the question relating to the applicability and enforcement of Fundamental Rights under Articles 25 and 22 of the Constitution of the Islamic Republic of Pakistan., 1973, there being a difference of opinion between the judges of the High Court in the Intra-Court appeal bench and the judgment pronounced by the learned judge in Chambers. An authoritative pronouncement was in the circumstances, called for.[p. 299] A

Another elementary rule of constitution of constitutional instruments is that effect should be given to every word of the constitution. Hence, as a general rule, the Courts should avoid a constitution which renders any provision meaningless or in operative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory (11 Am. Jur., Constitutional law, Art.55).

The next rule in construing a constitutional provision is that it is the duty of the Court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode or ascertaining the meaning affixed or sentence by a deliberative body is by comparing it with the word and sentences with which it stands connect, and a constitutional provision or a phase in a constitutional provision must be read in connection with the context. Nascitur a sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a constitution must be construed with regard to the remained of the instrument and to the express intent of the constitutional convention in adopting it (11 Am.Jur., Constitutional Law. Art. 53)[p.305,306] B.

The Constitution is a fundamental or organic or Supreme Law standing on a somewhat higher petition than the other laws of the country.

The Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere.

The Court are creatures of the Constitution; they derive their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the constitution.

Under a Constitution prescribing a system where there is a trichotomy or sovereign powers the judicial power must from the very nature of things be vested in the judiciary.
[p. 306] C.

If there is an apparent or real conflict between two provisions of the Constitution, how is that conflict to be resolved? The problem thus raised is not peculiar to the interpretation of a Constitution but is common to the interpretation of all statutes. The principles for resolving such a conflict are well-known and are to be found in standard books on statutory contraction, but the Supreme Court of India has compendiously described them as “the principle of harmonious construction.” The name is a little, e unfortunate , for it might suggest that it is the function of the Court somehow to produce harmony between various provisions of a statute. But the principle underlying the rule of harmonious construction is itself correct if certain relevant considerations are borne in mind.. the principle of harmonious construction does not require a Court first to produce disharmony by construction in order that it may thereafter resolve it by harmonious construction. For , as the Judges said in the house of Lords in Warburton v. Loveland [(1832) 2 D. & CI.480,500,5 E. R. 499] ,

” No rule of construction can require that when the words of one part of a statute convey a clear meaning …it shall be necessary to introduce another part of a statute which speaks with less perspicuity to diminish the efficacy of the first part.”

The above passage was cited and applied by Barton J. in construing the provisions of section 89, 92 and 93 of the Commonwealth of Australia Act. He said.

” Applying those expressions to these sections I should say they amount to this ; section that section 89 has an absolutely clear meaning, the rule of construction do not require us to introduce another part of the statute which speaks with less perspicuity, and to apply that part to the construction of section 89. That would have the effect of diminishing the clearness of section 89, and appears to me to be an absolute inversion of the rule which is applicable in such a case. Hardcastle, in his work in the interpretation of section (3rd End.), p.111, says. “it is only when, as the court said in Palmer’s case, (1784) 1 Leach., 355, ” any part of an act of parliament is penned obscured, and other passages can elucidate that obscurity, recourse ought to be had to such context for that purpose. “[State of Tasmania v. Commonwealth of Australia (1904) 1 CLR 329 at 357]”

secondly the conflict between two provision may be merely apparent as when their objects or subjects are different:

“.. it is sometime found that the conflict of two statute is apparent only, as their objects are different and the language of each is restricted, … to its own object lines, without meeting”; (Maxwell, Interpretation of Statutes, 11th End., pp. 162-3).

“…distinct provision of the Constitution are repugnant to each other in such a way as to be irreconcilable only when they are related to the same subject or adopted for the same purpose and cannot be enforced without material and substantial conflict.”

If however, the conflict is not apparent but is real, the principle of harmonious construction comes into play. That principle was clearly enunciated by Venkatarama Aiyar, J. in Sri Venkataramana Deveru v. State of Mysore [(1958) S.C.R. 895 at p. 918] and be stated thus: when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect can be given to both . it follows from this that a construction which would render one provision wholly nugatory must be rejected in favour of a construction which given effect to both provisions….” [p. 308] D.

The words relevant for understanding the full impact of Article 25(2) of the Constitution of 1973 are “discrimination” and “alone”. The ordinary meaning of “discrimination” is very inoffensive. It means “making a distinction or difference between things; a distinction; a difference ; a distinguishing mark or characteristic;
The power of observing accurately, or of making exact distinctions; discernment”. The Oxford English Dictionary, Volume III).

Clause (2) of Article 25 prohibits distinction on the basis of sex alone However the very next clause (3) controls the rest article 25 by providing that” nothing in this article shall prevent the state from enacting any special provision for the protection of women and children”. It implies, therefore, that while the difference on the basis of sex can be created and maintained, it be done only in those cases where it operates favorably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making 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. All pervasive nature of this constitutional provision is self evident. In interpreting Constitution and also in giving effect to the various legislative measures , one distinction has to be consistently kept in view and it is that classification based on reasonable is permissible and not violative of the principle. This aspect of the matter was dealt with in a case in the Indian Jurisdiction in Kathi Raning Rawat v. State of Saurashtra (A I R 1952 Supreme Court 123) in the Judgment of the Chief Justice in the following words:

“Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in art. 5 and 6, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one other of the provisos to the articles. but the position under article 14 is different. Equal protection claim under that article are examined with the presumption that the state action is reasonable and justified. This presumption of constitutionality stems from the power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to its policies.”

The harmony and the consistency between Article 25 and art 22 of the constitution is obvious notwithstanding the generality of 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 off 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 confided instead of consistency between article 25 and 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 reservations exclusively for boys and the boys would have sought reservation in institutions reserved exclusively for girls unless it was shown as a fact the institution for girls was kept exclusive for the purpose of and within the fact that the limitation of clause (3) of article 2. As the two article 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 catering to the needs of the male population and also education institutional institutions catering exclusively the female population in our context and 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 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 amount to gross violation of constitutional mandate.[p. 309,310] E, F, G&H

There are three distinguishing features of that case which must be noticed at once. the first is that in the Indian Constitution was the state against which there was prohibition. The university of Madras was held to be not a state. In our Constitution the prohibition is against the law which discriminates. If the instruction or the statutory instruments challenged qualifies as law then it is liable to be struck down under Article 8, if found discriminatory. Who takes the action under t, is immaterial. In this case it is not in dispute that the prospectus qualifies as law on the subject of admission in Medical Colleges.

In our Constitution it is only the aid receiving institutions from public revenue which are mentioned, without referring to management or authority in control of it. It follows, therefore , that it the pubic revenues are coming to the aid of institution either wholly or in part, then the institution comes within the purview of Article 22(3) (b) and it is immaterial whether the state is managing or someone else. Article 22 of our Constitution is subject to law but in Article 29 of the Indian Constitution no such subordination to law is mentioned.

There being no repugnance between Article 25 and Article 22, the two have to be read harmoniously. No discrimination on the ground of sex alone can be permitted except on the ground of reasonable and intelligible classification. Such classification in our Society permits for the present establishment of educational and professional institutions exclusively for the females or exclusively for the males. However, where co-education is permitted and the institution is not reserved for one sex alone, the fixation of number on the ground of sex will directly be opposed to the requirement of Article 25(2) unless it is justified as a protective measure for women and children under Article 25(3).
[p.311,312] I, J & K.

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 to. A harmony should be struck as far as possible without of course enforcing in positive terms the basic principle of policy or allowing them to supersede the fundamental rights or in any manner curtailing 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 institutions generally available and higher education equally accessible to all on the basis of merit.

In view of the relief that we are granting and the public nature of the controversy involved, we would condone the delay that has taken place in filing Civil Appeals No. 428 of 1987 and 430 of 1987 and convert the Civil Petition for leave to appeal No. 133/88 into appeal and allow it condoning the delay in terms in which other appeal are being decided.[p. 312] L & M.

Order accordingly.

Advocate for Appellants (in all Appellant except C.As. 420, 427, 428 of 1987 and C.P. 133 of 1988):
Abid Hassan Minto, Advocate SC and Sh. Masud Akhtar, Advocate-on-record.

Advocate for Appellants (in C.A. 420of 1987):
Taqi Ahmad khan, Advocate SC and Ch. Mehdi Khan Mehtab, Advocate-on-record.

Advocate for Appellants (in C.As. 427 and 428 of 1987):
Ch. Muhammad Ashraf, Advocate SC and Rana Maqbool Ahmad Quadri, Advocate-on-record.

Advocate for Respondent(in all Appeals and Petition):
Maqbool Elahi Mlik, Advocate-General, Punjab and Rao Muhammad Yousaf Khan, Advocate-on-Record.

Date of hearing: 26th March, 1989.

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