*M.A.. I.C.S. (Retd.), University of London, London.

Transcription

1 FUNDAMENTAL RIGHTS IN PAKISTAN Alan Gledhill* The dawn of independence in so many countries from 1947 onwards was probably one of the causes for the Universal Declaration of Human Rights by U.N.O. in Those responsible for its drafting emphasized that they only hoped to lay down basic principles and disclaimed any intention to define norms; the Rights were a common standard of achievement which all nations should undertake to promote by progressive measures. Nevertheless, with some adaptations and omissions, they were embodied in the draft constitution of Indonesia, 1949, where they remain fossilized. But the Rome Convention of 1950 is an expansion of the Declaration of 1948 in legal language and provides machinery for the enforcement of the Rights. The Rome Convention has been drawn upon for the Bill of Rights in the Nigerian Constitution, Most European countries have adhered to the Convention and it is conceivable that, in time, the Rome Convention may apply over a large part of the earth's surface. Although India might have availed herself of the Universal Declaration of 1948, the Constituent Assembly preferred to use language of its own choice for the formulation of its Bill of Rights. Complete originality could hardly be expected and the influence of the American Constitution is obvious. But the Indian Fundamental Rights have been the basis of the Bills of Rights in the constitutions of Pakistan, Malaya and Burma. In this paper it is proposed to deal with the Pakistan version of the Rights, to indicate differences from the Indian version and to refer to the attitude of the Pakistan courts in applying the Rights, when it differs materially from the attitude of the Indian courts. Though India has enjoyed the protection of the Fundamental Rights since 1950, it was not until 1956 in Pakistan that the Government of India Act, 1935, was replaced by a Constitution and the Fundamental Rights came into force. The Constitution of 1956 was abrogated in 1958 and for four years Pakistan was governed by " martial law." The Constitution of 1956 was enacted by a Constituent Assembly, indirectly elected; the Constitution of 1963 was promulgated by the President, who had been authorized to do so by a referendum to the elected members of the lowest tier of local government boards in Pakistan. Armed with this authority, the President had set up a commission to report on the constitution ; the commission had taken all reasonable steps to consult those who wished to give an opinion and the commissic n's report makes it abundantly clear that there was an almost unanimous demand for the restoration of the Fundamental Rights. Nevertheless, in the Pakistan Constitution of 1962, the Fundamental Rights appeared in *M.A.. I.C.S. (Retd.), University of London, London.

2 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 71 the guise of " Principles of Law-Making." These had the same status as India's Directive Principles ; that is to say, they were not enforceable in a court and were only binding on the consciences of legislators. There were some changes of language and most of them had undergone an expansion, usually epitomizing Indian and Pakistan decisions on the Rights. It is not difficult to find arguments in favour of the course taken and to justify it from Indian experience. India's Directive Principles have been faithfully observed by executives and legislatures without the threat of legal proceedings ; the enforcement of the Indian Fundamental Rights has not produced any startling enlargement of Indian liberty ; the protection of the Rights in property has almost been abolished by constitutional amendments ; the judges of the superior courts have been obliged to spend far too much time on writ petitions to the prejudice of the ordinary litigant; writ petitions have kept the wolf from the legal practitioner's door but have emptied the taxpayer's pockets. But all these arguments have little weight against the fact that Pakistanis clearly valued their Bill of Rights and it was not an exercise in democracy to try to fob them off with " Principles of Law-Making." After the National Assembly had been elected under the Constitution of 1962, it proceeded to amend the Constitution and, apart from the remedies for their infringement, the provisions of the Constitution of 1956 dealing with the Fundamental Rights, with a few amendments and omissions which will be indicated, have been restored by the Constitution (Amendment) Act, Let us first consider how the Rights are defined in India and in Pakistan. The order in which they appear differs in the two Pakistan versions and the Indian version but this cannot be regarded as of sufficient importance to justify further comment. We will deal with them in the order in which they appear in the Indian Constitution. Among the Rights to Equality, Pakistan l treats equality before the law positively as a Right available to the citizen only, whereas India 2 defines it negatively as a prohibition against the State in favour of citizens and non-citizens. The Pakistan Constitution of 1956 had no prohibition against discrimination on grounds of religion, race, caste, sex or place of birth, as India has in article 15 but, so far as the citizen is concerned, it would be to a considerable extent covered by the Right to Equality. A shortened version appears in the Constitution of 1962; 3 it does not include the exception in favour of backward classes and access may be refused to public places intended only for religious purposes. The general guarantee of equality of opportunity in the public services set out in article 16(1) of the Indian Constitution is not found in either Pakistan version but discrimination on grounds of race, religion, caste, sex, 1. Pak. Const, art. 5(1) (1956); Pak. Const. Right No. 15 (1962). 2. Ind. Const, art Pak. Const. Right No. 16 (1962).

3 72 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 7 : 70 residence and place of birth is prohibited, with a proviso enabling reservation of posts for a limited period for areas of classes to be specified to secure their adequate representation in the Pakistan public services. 4 The corresponding Indian provision 5 is unlimited in point of time but limited in application to backward classes. Another Pakistan proviso, not found in the Indian version, enables the reservation of posts and services to be specified for either sex. Pakistan has a provision, corresponding to article 16(3) of the Indian Constitution, enabling a residence qualification to be imposed on aspirants to service under a State Government or local government board, 0 but no provision corresponding to India's article 16(4) permitting appointments to office in a religious institution to be restricted to adherents of that religion. The abolition of untouchability in article 17 of the Indian Constitution is reproduced in the Pakistan Constitutions, 7 but Pakistan has not followed India in abolishing titles. 8 The seven democratic freedoms of the citizen collated in article 19 and treated with some degree of similarity are, for the most part, treated separately in Pakistan but freedom of speech may, as in India before the Constitution (Sixteenth Amendment) Act, be reasonably restricted in the interests of State security, friendly relations with foreign states, public order, decency, morality or in relation to contempt of court, defamation and incitement to an offence. 9 As in India, freedom of assembly in Pakistan must be exercised peaceably, without arms and may be reasonably restricted in the interests of public order, 10 and freedom of association may be reasonably restricted in the interests of morality and public order. 11 In the Pakistan Constitution of 1956 the Rights of free movement and settlement and the Right to deal with property were dealt with together in one article 12 but they are dealt with separately in the Constitution of 1962, 13 the latter coming appropriately before the Right to compensation for expropriation. As in India, 14 these Rights may be reasonably restricted in the public interest but not in the interests of a scheduled tribe. Whereas in India the Right to follow an avocation may be reasonably restricted in the interests of the general public and the State may prescribe professional or technical qualifications or 4. Pak. Const, art. 17 (1956); Pak. Const. Right No. 17 (1962). 5. Ind. Const, art. 16(4). 6. Pak. Const, art. 17(2) (1956) ; Pak. Const. Right No. 17(2) (1962). 7. Pak. Const, art. 20 (1956) ; Pak. Const. Right No. 19 (1962). 8. Ind. Const, art Ind. Const, art. 19(1) (a) and (2). 10. Ind. Const, art. 19(1 )(b) and (2) ; Pak. Const, art. 9 (1956); Pak. Const. Right No. 6 (1962). 11. Ind. Const, art. 19(l)(c) and (3) ; Pak. Const, art. 10 (1956); Pak. Const. Right No. 7(1962). 12. Pak. Const, art. 11 (1956). 13. Pak. Const. Rights Nos. 8 and 7 (1962). 14. Ind. Const, art. 19(1 )(d), (c) and (f) and (5).

4 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 73 nationalize any commercial enterprise, 15 the Pakistan Constitution of 1956 restricted this right to any lawful avocation, subject to the imposition of technical qualifications, a licensing system and liability to nationalization. 16 The Constitution of 1962 adds that the State may regulate commerce and industry in the interests of free competition. 17 As the relevant articles for the most part reproduce provisions of the Code of Criminal Procedure, 1898, there is little room for differences in the constitutional protection of life and liberty. In Pakistan, as in India, no person may be deprived of life or liberty save in accordance with law ; 18 nulla poena, nullum crimen sine lege. 19 But India's prohibition of double punishment and self-conviction 20 finds no place in the Pakistan Constitutions. In both countries every arrested person, unless he is an enemy alien or a person preventively detained, must be informed of the grounds of his arrest, be allowed to consult and be defended by a legal practitioner of his own choice and be produced before a magistrate within twenty-four hours. 21 Both countries require the approval of an advisory board for the preventive detention of a person for more than three months but, whereas India requires the board to be composed of persons qualified for appointment as judges of a High Court, 22 the Pakistan Constitution of 1956 required the board to be nominated, in a case of detention under a central statute, by the Chief Justice of Pakistan, in a case of detention under a provincial statute, by the Chief Justice of the provincial High Court. 23 The Constitution of 1962 went further in requiring the President or the Governor to nominate, in addition, a senior member of the civil service. 21 In both countries a detenu is entitled to grounds, from which the detaining authority may exclude facts he thinks should be kept secret in the public interest, and the detenu must be given the earliest opportunity of making a representation. 25 The provisions of the Indian Constitution, which empower Parliament to prescribe classes of cases which need not be referred to an advisory board, to set maximum periods of detention for different classes of detenus and to lay down the procedure to be followed by an advisory board 2G are not reproduced in the Pakistan Constitutions. 15. Ind. Const, art. 19(l)(g) and (6). 16. Pak. Const, art. 12 (1956). 17. Pak. Const. Right No. 8 (1962). 18. Ind. Const, art. 21: Pak. Const, art. 5(2) (1956); Pak. Const. Right No. 1 (1962). 19. Ind. Const, art. 20(1); Pak. Const, art. 6 (1956); Pak. Const. Right No. 4 (1962). 20. Ind. Const, art. 20(3). 21. Ind. Const, art. 22(1) and (2); Pak. Const, art. 7(1) and (2) (1956); Pak. Const. Right No. 2(1) and (2) (1962). 22. Ind. Const, art. 22(4). 23. Pak. Const, art. 7(4) (1956). 24. Pak. Const. Right No. 2(4) (1962). 25. Ind. Const, art. 22(5) and (6) ; Pak. Const, art. 7(5) (1956); Pak. Const. Right No. 2(5) (1962). 26. Ind. Const, art. 22(7).

5 74 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 7 : 70 Though the language differs, the Pakistan version being briefer, forced labour, except for public purposes, is prohibited in both countries ; ' 27 India does not expressly prohibit slavery but forbids discrimination in imposing compulsory public service on grounds of religion, race, caste or class. The Pakistan Constitution of 1962 permits the imposition of compulsory service as a criminal punishment. India's prohibition of the employment of children in hazardous activities 28 is not reproduced in the Pakistan Constitution. As India purports to be a secular State and Pakistan an Islamic State, one would expect to find greater differences between their Rights relating to religion than there actually are. India guarantees the Right to profess, practice and propagate religion, which may be restricted in the interests of public order, morality or health ; secular activities associated with religious practice may be regulated by law and a law providing for social welfare or reform cannot be impugned as repugnant to the Right. 29 In Pakistan every citizen has the Right to profess, practice and propagate religion, subject to law, public order and morality.' 60 Prima facie this would seem to give legislatures unlimited discretion to restrict the Right but the Pakistan Supreme Court has repelled any such interpretation; the Right may only be restricted by a law made in the interests of public order or morality. 31 India allows any religious denomination the Right to establish and maintain religious and charitable institutions but this Right also may be restricted in the interests of public order, morality and health. A denomination may manage its own affairs in matters of religion; it may acquire property but its administration may be regulated by law. 32 In Pakistan a denomination may establish, maintain and manage religious institutions but this Right is, like the Right to profess a religion, "subject to law, public order and morality, " 33 which expression must be given the restricted meaning set out above. In both countries the question has been posed whether the expropriation of wakf or debutter property is permitted by the Constitution. In India it has been held that it is not, as the same trusts are imposed on the compensation paid, 31 but it has been held otherwise in Pakistan. 35 India forbids taxation for the maintenance of a religion, 35 while Pakistan protects a person from being taxed to maintain any religion 27. Ind. Const, art. 23; Pak. Const, art. 16 (1956); Pak. Const. Right x\o. 3 (1962). 28. Ind. Const, art Ind. Const, art Pak. Const, art. 18(a) (1956) ; Pak. Const. RightNo. 10(a) (1962). 31. Jibendra v. E. Pakistan, P.L.D S.C Ind. Const, art Pak. Const, art. 18(b) (1956) ; Pak. Const. Right No. 10(b) (1962). 34. Surayapal Singh v. U.P., A.I.R All Md. Mahdi Ali Khan v. E. Pakistan, P.L.D Dacca Ind. Const, art. 27.

6 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 75 other than his own 37 and there must be no discrimination against any community in granting tax exemptions or concessions in relation to a religious institution. 38 Except in an educational institution founded under a trust requiring religious instruction, India forbids religious instruction in institutions wholly maintained by public money. In State-aided institutions a pupil or his guardian must give consent, before he can be given religious instruction or obliged to attend religious worship. 39 In Pakistan, no pupil can be obliged to receive instruction or attend worship in any religion except his own. A denomination may provide instruction in any educational institution maintained by it. 40 Recognition of such an institution by the State cannot be denied on the ground that the management vests in the denomination. 41 India has two articles grouped under the heading "Cultural and Educational Rights." Any section of citizens has a Right to conserve its language, script and culture according to all three versions of the Fundamental Rights, 12 but, whereas the other Rights in this group in India are based mainly on culture, the corresponding provisions in Pakistan have a more religious tinge. In India no citizen may be denied admission to any educational institution maintained or aided by the State on grounds of religion, race, caste or language. 43 The omission of " place or birth" is presumably deliberately intended to permit of the establishment of schools in remote areas, solely for the use of local residents. The amendment of article 15 by the Constitution (First Amendment) Act, 1951, permits special provisions for educationally backward citizens, scheduled castes and sehedulcd tribes. But the corresponding provision in Pakistan makes race, religion and place of birth, but not language, forbidden grounds for refusing admission to a State-aided institution; public authorities may make special provisions for backward classes. 44 India permits minorities, whether based on religion or language, to establish educational institutions of their choice and forbids discrimination in granting aid on the ground that such institutions are managed by a minority. 4 '' In Pakistan it is only religious minorities that have the Right to establish educational institutions; 40 they have no constitutional right to financial aid. 37. Pak. Const, art. 21 (1956) ; Pak. Const. Right No. 11 (1962). 38. Pak. Const, art. 13(4) (1956); Pak. Const. Right No. 12(4) (1962). 39. Ind. Const, art Pak. Const, art. 13(1) and (2) (1956); Pak. Const. Right No. 12(l)and (2) (1962). 41. Pak. Const, art. 13(5) (1956) ; Pak. Const. Right No. 12(5) (1962). 42. Ind. Const, art. 29(1); Pak. Const, art. 19 (1956) ; Pak. Const. Right No. 18. (1962). 43. Ind. Const, art. 29(2). 44. Pak. Const, art. 13(3) (1956); Pak. Const. Right No. 12(3) and (6) (1962). 45. Ind. Const, art Pak. Const, art. 13(5) (1956) ; Pak. Const. Right No. 12(5) (1962).

7 76 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 7 : 70 We are now left with the Rights relating to expropriation. Ignoring the special provisions governing expropriatory State laws enacted immediately before or after the Constitution came into force, India's article 31, as first enacted, provided that no person should be deprived of property save by authority of law ; no property should be acquired or taken possession of for public purposes, save under a law providing for compensation. The Supreme Court of India held these provisions to be cumulative and that an owner, irrespective of the method by which he had been deprived, was entitled to compensation, which must amount to the market value. 47 As this would have involved India in claims for compensation which it could not meet, in 1955 the Constitution (Fourth Amendment) Act amended article 31, but not retrospectively, so that the prohibition of expropriation unauthorized by law had to be read disjunctively from the provisions regarding compensation, which was only payable when property had been acquired or requisitioned by the State or for a State-controlled or State-owned corporation; the amount of compensation or method of assessment was to be laid down by the legislature and was no longer justiciable. In the Pakistan Constitution of 1956, while expropriation without authority of law was forbidden, the Right to compensation was restricted to cases of acquisition or taking possession for a public purpose of immoveable property and interests in commercial and industrial undertakings; the amount of compensation was justiciable. 48 Subject to what remains to be said, the position is the same under the Constitution of The Right to compensation in India could not be pleaded against existing laws, laws imposing taxes or penalties, laws for promotion of public health or preventing danger to life or property and laws relating to evacuee property. 50 The Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1954, gave ad hoc constitutionality to twenty statutes, mainly dealing with the abolition of zamindari rights, and protected five specified classes of legislation from avoidance for repugnancy to the property Rights and equal protection of the laws. 51 The Pakistan Constitution of 1956 protected existing laws, laws preventing danger to life, property and public health, laws relating to evacuee property and laws providing for the taking over by the State for a limited period the management of property for the benefit of the owner. 52 The category last mentioned is one of the five protected by article 31A of the Indian Constitution. In the Pakistan Constitution of 1962, these provisions are reproduced, except that instead of 47. W. Bengal v. Subodh, [1954] S.C.R. 587 ; Dwarkadas v. Sholapur S. 6- W. Co., [1954] S.C.R Pak. Const, art 15 (1956). 49. Pak. Const. Right No. 14 (1962). 50. Ind. Const, art. 31(5). 51. Ind. Const, arts. 31 A, 31B and Schedule Pak. Const, art. 15(3) (1956).

8 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 77 protecting "existing laws," the protection is extended to all laws in force before the Constitution (First Amendment) Act, The operative clause in each of the three Bills of Rights under consideration is in substantially the same language. Any law or custom in force at the commencement of the Constitution [or, in Pakistan now> of the Constitution (First Amendment) Act, 1963] which is inconsistent with a Fundamental Right is void to the extent of the inconsistency ; " the State " shall not make any law which abridges a fundamental Right and any law which contravenes this injunction is void to the extent of the contravention. 54 It is agreed in India and Pakistan that, as a constitution is not retrospective, repugnancy between an existing law does not invalidate anything done under the law before the Fundamental Rights began to operate 55 but the question whether a law repugnant to a Fundamental Right is under eclipse or void ab initio still awaits a full answer. Differences of opinion in India were to a large extent disposed of in India when the Supreme Court declared that the doctrine of eclipse can only be invoked if the impugned law is valid when made but a shadow is cast upon it by a supervening inconsistency. 56 Pakistan takes the opposite view and holds that, in the instant context, "void" can only mean "under eclipse.' 557 In India it is held that, when a law purports to authorize restrictions on a Fundamental Right in language wide enough to cover restrictions within and outside the permissible constitutional limits, it must be declared void, 58 but in Pakistan it has been held that the Fundamental Rights may be read into laws which do not negative the observance of the constitutional safeguards; for instance a law dealing with criminal procedure will not be declared void because it omits to state that an accused person may be defended by a pleader of his choice and must be produced before a magistrate within twenty-four hours of his arrest; if these injunctions are, in fact, observed, no objection can be taken. 59 But it cannot be maintained that all Fundamental Rights must be read into all laws liable to be impugned for repugnancy to them ; if, for instance, a law authorizes expropriation, it is impossible to read into it provisions for the ascertainment and payment of compensation where the circumstances are such that the Fundamental Right demands them. 60 The Pakistan courts shew a greater reluctance than the Indian courts to strike down a law. In both India and Pakistan the scope of the Fundamental Rights is so restricted that they can only be pleaded against a law. There is no 53. Pak. Const. Right No. 14(3) (1956). 54. Ind. Const, art. 13 ; Pak. Const, art. 4 (1956); Pak. Const, art. 6 (1962). 55. Keshavan v. Bombay, A.I.R S.C. 128 ; Md. Bashirv. W. Pakistan, P.L.D 1958 Lah Deep Chand v. UP., A.I.R S.C E. Pakistan v. Md. Mehdi Ali Khan, P.L.D S.C Romesh Thappar v. Madras, [1950] S.C.R Behram Khan v. State, P.L.D Kar Abdul Aziz v. D. M. Lahou, P.L.D. Lah. 104.

9 78 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 7 : 70 law permitting most human activities ; no law is necessary to permit a man to eat or drink or sleep or walk ; the only laws dealing with such activities are restrictive laws, such as a law forbidding the drinking of liquor or its purchase otherwise than from a licensed vendor or during prescribed hours. In an Indian case a publisher pleaded an infringement of his Fundamental Right to carry on his avocation, when the State Government decided to buy the copyright in school textbooks and permit those only to be used in recognized schools. Obviously the publisher was going to lose a lot of business, but it was held that this was done in the exercise of the executive power, which covered every act coming within the scope of those matters assigned to the State, which were not forbidden by law or the Constitution. There was no inconsistency between any law and the Fundamental Right pleaded. 61 This point does not appear to have been argued in Pakistan yet, but the general attitude of the Pakistan courts does not suggest that they would give a different answer. In the Pakistan Constitution of 1956, the Right to an effective remedy in the Supreme Court for the infringement of a Fundamental Right, including the issue of a writ of habeas corpus, mandamus, certiorari, prohibition or quo warranto, was, as in India, a Fundamental Right itself 62 and the same remedies could be obtained from a High Court 63 but there is no such provision in the Constitution of As already explained, in that Constitution, as originally promulgated, no law was subject to judicial review for repugnancy to a "Principle of Law-Making." The Supreme Court was deprived of its writ jurisdiction and the preexisting High Court writ jurisdiction was replaced by powers to make, on the application of an aggrieved person, when satisfied that no other adequate remedy was available, an order directing any functionary of the Centre, a Province or a local board to do what he was legally bound to do or refrain from doing what the law forbade or to declare any act of any such functionary illegal. Subject to the same conditions the Court could, on the application of any person, satisfy itself on the legality of the custody in which any person was held or require any holder of a public office to establish his authority to hold it. Gi An appeal would lie to the Supreme Court on a certificate of the High Court that a substantial question of constitutional law was involved or by special leave of the Supreme Court. r,:> The Constitution (First Amendment) Act, 1963, further empowered a High Court, on the application of an aggrieved person, if satisfied that no other adequate remedy was available, to give such directions to any person or authority, including any Government or functionary within its territorial jurisdiction, as would be appropriate to enforce any Fundamental Right. r,fi 61. Ram Jaitaya v. Punjab, [1955] 2 S.C.R Ind. Const, art. 32 ; Pak. Const, art. 22 (1956). 63. Ind. Const, art. 226 ; Pak. Const, art. 170 (1956). 64. Pak. Const, art. 98 (1962). 65. Pak. Const, art. 58 (1962). 66. Pak. Const, art. 98(2)(c) (1962).

10 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 79 The amendment puts a Pakistan High Court in the same difficulty as an Indian High Court was before the Constitution (Fifteenth Amendment) Act, 1963, gave it jurisdiction if the cause of action arose within its territorial jurisdiction. If a petitioner living in East Pakistan has a cause of action arising in that Province against the Central Government or an authority located in West Pakistan, he can only move the West Pakistan High Court for a direction protecting his Fundamental Right under article 98. Moreover, in a petition of this kind, the applicant cannot rely on the violation of another's Fundamental Right; he is in the same position as a shareholder of an Indian company, whose petition was dismissed because he could not impugn a statute which abridged not his but the company's Fundamental Right. 67 In any case he has to convince the court that, if he has a remedy by suit or other proceeding, it would be inadequate. He is obviously in a less favourable position than an Indian petitioner for a writ to protect his Fundamental Right. As Pakistanis have only enjoyed the protection of the Fundamental Rights while the Constitution of 1956 was in force and since the enactment of the Constitution (First Amendment) Act, 1963, there has not been the opportunity to build up a body of case-law comparable to that in India and Pakistanis do not seem to have had the same enthusiasm for litigation in this field as Indians. Nevertheless, it would be impossible in this paper to attempt to give a summary of the Pakistan caselaw ; one cannot do much more than mention a few cases which may be of interest, usually on account of differences of opinion from the Indian courts. Obviously where the same or nearly the same language is used to define a Right, there is not much scope for differences in interpretation except in the case of so vaguely worded a Right as "equal protection of the laws." In Pakistan it has been held that this implies : (1) No person or class shall be denied a protection of the laws enjoyed by other persons in their lives, liberty, property and pursuit of happiness. (2) All persons shall be treated alike in like circumstances as regards privileges conferred and liabilities imposed. (3) Classification of persons or things is not repugnant to the equality doctrine, provided it is not arbitrary or capricious but rational and reasonable, bearing a fair and substantial relation to the object of the legislation. (4) It is not for the courts to demand scientific accuracy from legislation in the classification adopted. It must be upheld unless its relevancy is too remote or fanciful, e.g., race, colour or religion must be rejected. 68 The Indian courts have laid down more numerous and more precise principles to be inferred as comprised in this Right. An Indian lawyer 67. Chiranjit Lai v. Union, A.I.R S.C Jibendra v. E. Pakistan, P.L.D S.C. 9.

11 80 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 7 : 70 might say that similarity of treatment was enough and question the relevance of the "pursuit of happiness" but he would be unlikely to quarrel with the rest of this declaration as far as it goes. Indian minds have pondered on the compatibility of punishing persons for sedition with parliamentary government, which appears to involve references to the character and conduct of political opponents which a self-respecting businessman would not use when speaking of a business rival; the Allahabad High Court has held that section 124A of the Penal Code is repugnant to the Right of Freedom of speech. 69 It has been held in Pakistan that there is no such repugnancy; what the section punishes is bringing Government into contempt, i.e., attacking the existing system, not the persons actually in power. 70 Regarding the "reasonable restrictions" on the democratic freedoms the Pakistan Supreme Court has said that they must be imposed with due regard for the public requirements they are designed to meet. Anything arbitrary or excessive will be outside the bounds of reason but, in considering the disadvantage imposed on the subject in relation to the advantage to the public, the Court must clearly appreciate the public need which has to be met. The Court should consider whether the restraint bears excessively on the subject or is the minimum required to preserve the public interest. 71 The Indian courts have had occasion to examine the bearing of the Fundamental Rights on section 144 of the Code of Criminal Procedure, which empowers a magistrate to issue ex parte orders in urgent cases of nuisance or apprehended danger. Without being obliged to declare void any part of it, they have observed that many Fundamental Rights are involved and some orders which may be passed under it may not be in the particular interest which authorizes constitutional abridgement of the Right. 72 In Pakistan it has been held that a peremptory order prohibiting a "religious" meeting on the subjective satisfaction of the District Magistrate that this was necessary to prevent a public disturbance was not a violation of the Right of assembly. 73 The exposition of the Right to follow an avocation in Pakistan is somewhat different from that in India. In the first place only a " lawful " avocation is protected and this might be regarded as empowering a legislature to declare any profession unlawful. In a case involving a statute directing the winding-up of a company conducting lotteries, Shabir Ahmed, J., said that this was precisely what was intended. 74 But this was a minority view. The majority view was that a legislature may not prohibit the carrying on of a business, unless it involves doing unlawful acts, in this case committing offences under section 294A of 69. Ram Nandan v. U.P., A.I.R All State v. Abdul Ghajfar Khan, P.L.D Lah East &> West Steamship Co. v. Pakistan, P.L.D S.C Dattatriya v. A.D.M. t 1951 N.L.J Abdul Hameed v. D. M. t P.L.D Lah Progress of Pakistan Co. Ltd. v. Registrar, P.L.D Lah. 887.

12 1965] FUNDAMENTAL RIGHTS IN PAKISTAN 81 the Penal Code. In another case, ramarkable for the dictum that a Fundamental Right is like the moon and morality like the disc of light surrounding it, a distinction was drawn between "legal" and "lawful," the latter being defined as what is not opposed to the spirit of the moral or judicial law. 7:> Though in Pakistan it is expressly provided that any avocation may be regulated by a licensing system, this does not prevent correction by the courts of a licensing authority who acts arbitrarily or capriciously. 76 India confines the ban on retroactive laws to those imposing penalties on conviction for a criminal offence. Other penalties, such as eviction from public property 7T or enhancement of the period of preventive detention 78 may be imposed by an ex post facto law. But in a Pakistan case an Ordinance, enabling the making of Orders requiring dealers in foodgrains to be licensed and the seizure of unlicensed stocks, expired in June. The petitioner's unlicensed wheat was seized in September and another Ordinance made subsequently continued the Orders made under the first Ordinance. This was held to infringe the principle nulla poejia sine lege. In India a police officer, acting under a statute enacted to implement an agreement with Pakistan to endeavour to restore to their relatives persons in both countries, who had got separated from their relations during the mass migrations which followed independence, took into custody a person he suspected of being an "abducted person" and sent him to a camp where enquiries would be instituted with the object of putting him in touch with his relatives. The "abducted person" demanded his release on the ground that his Fundamental Right to be produced before a magistrate within twenty-four hours had been violated. He succeeded in the High Court but the State Government appealed. Obviously, on a parity of reasoning, a lunatic or revenue defaulter or judgment-debtor taken into custody could demand his release. The Indian Supreme Court held that the Right was not available to a person arrested on a warrant of court; it only applied to a person arrested without a warrant for having committed or being suspected of having committed or being about to commit a criminal or quasi-criminal act. 80 Subsequently in a Pakistan case, in which the Indian case was cited, the facts were identical and the statute involved, the (Pakistan) Recovery of Abducted Persons Ordinance, 1949, was the counterpart of the Indian statute last mentioned. Yet the Pakistan court held that the Right was available to all persons arrested without warrant, whether under the Code of Criminal Procedure, 1898, or not Mehtab Jan v. Municipal Committee, P.L.D Lah Frontier Textile Mills v. Textile Commissioner, P.L.D Lah Brij Bhukan v. S D.O.. A.I.R Pat Pralhad v. Bombay, A.I.R Bom Md. Waris Shah v. W. Pakistan, P.L.D Lah Punjab v. Ajaib Singh, [1953] S.C.R Sakhi Daler Khan v. Superintendent, P.L.D Lah. 813.