WUKALA MAHAZ BARAI THAFAZ DASTOOR Versus FEDERATION OF PAKISTAN

1. AJMAL MIAN, C.J.---By this common judgment, I intend to dispose of the above two Constitution Petitions, which involve interpretation of Article 63A of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), relating to disqualification on the ground of defection, incorporated by the Constitution (Fourteenth Amendment) Act, 1997 (Act XXVI of 1997), assented to by the President on 3-7-1997 and gazetted on 4-7-1997. Constitution Petition No. 24 of 1997 was filed on 25-10-1997 by Wukala Mahaz Barai Tahafaz Dastoor, Lahore, which claims to be a body of professional lawyers. In the prayer clause the following reliefs have been prayed for:

"PRAYER CLAUSE

2. For the reasons stated above, it is prayed as under:

(i) The manner in which Writ Petition No.22131 of 1997 has been consigned to the limbo in the office of the Lahore High Court at the instance of functionaries of respondent Federation be declared to have infringed the Fundamental Right of equal protection of law guaranteed to each member of the Petitioner Body.

(ii) Relief as sought through the writ petition attached herewith may now be granted by the Supreme Court in exercise of jurisdiction vested in it under Article 184(3) of the Constitution.

(iii) It is further prayed that in the meanwhile, impugned 14th Amendment may be suspended and other interim reliefs sought through the interim application made in the writ petition be also allowed."

3. Whereas in Constitution Petition No.25 of 1997 (which was also filed on 25-10-1997) by Nawabzada Nasrullah Khan, a veteran politician, the following relief has been claimed:

4. "It is, therefore, respectfully prayed that by accepting this petition the Constitution (Fourteenth Amendment) Act, 1997 insetting Article 63A in the Constitution, be declared to be void and invalid on account of its inconsistency with and repugnancy to the fundamental rights and other provisions of the Constitution. "

5. The above two petitions are mainly founded on the ground that impugned Article 63A, Constitution (Fourteenth Amendment) Act, 1997 was void on account of inconsistency with the Fundamental Rights/the Basic Structures.

6. 2 The above two Constitution Petitions were fixed before a Bench of three learned Judges heaped by the then Hon'ble Chief Justice on 27-10-1997, when notice was ordered to be issued to the learned Attorney-General for Pakistan for 28-10-1997. On the latter date, the above two petitions again came up for hearing before a Bench headed by the then Hon'ble Chief Justice. Dr.Abdul Basit and Syed Iftikhar Hussain Gilani, learned counsel for the respective petitioners, argued the above petitions at length and requested for issuance of an interim order on Miscellaneous Application on the ground that session of the National Assembly had been summoned for 29th of that month. Learned Attorney-General was also heard for about 25 minutes. He asked for more time. Mr. S.Sharifuddin Pirzada also appeared and submitted that he would appear on behalf of Federation of Pakistan and requested that he should be heard. After noticing the above facts, the Court passed the following order:

7. "It was made known to all that proceedings would be concluded tomorrow (29-10-1997) by 11-00 a.m. and final orders would be passed. Mr.Zafar Ali Shah, M.N.A, has filed an application that he should be heard as he is a Member of National Assembly. Let notice be issued to the other side for tomorrow (29-10-1997)."

8. On 29-10-1997 the above petition again came up for hearing before the same Bench when the following order was passed:

9. "ORDER:

10. We have heard the learned Attorney-General for Pakistan. We enquired from him about the time frame to which he replied that he would be good for the day. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court is also present in the Court and states that he would argue on behalf of the Federation and would take about two days. Syed Zafar Ali Shah, M.N.A., is also present in the Court and has filed an application for impleadment as a party in the matter as he is directly affected by the subject-matter of this case.

11. Initially we were of the view that the proceedings should be concluded and final order should be passed, but it appears that now it is not possible as the hearing is to take place in detail for which sufficient time is required and secondly the Session of the National Assembly has been called today which will commence at 6-00 p.m. In the circumstances some order of interim relief is very essential.

12. It is submitted on behalf of the petitioners that Article 63A of the Constitution is not anti-defection law, but in essence it is anti-dissent and is violative of Articles 2A, 19, 55, 63, 66, 68, and 95 of the Constitution. Members of Parliament feel that in presence of the provisions mentioned above, if they speak freely and express their candid opinion according to their conscience and if that happens to be contrary to the policy of the ruling party, penal action would be taken and they would lose their seats.

13. In such circumstances we deem it fit and proper to grant interim relief in the terms that no adverse action shall be allowed to be taken against any member of Parliament in pursuance of newly-added Article 63A which is impugned in these petitions. This order shall remain operative till the final disposal of the petitions."

3. Since Dr.A. Basit, learned counsel for the petitioner in Constitution Petition No.24 of 1997, was not available in the Court when the above two petitions were taken up by us for hearing, we heard first Syed Iftikhar Hussain Gilani, learned counsel in the above Constitution Petition No.25 of 1997. In support of the above petition he urged that impugned Article 63A of the Constitution is violative of Articles 17, 19, 25, 63, 66 and 95 and, therefore, not enforceable. However, during the course of the arguments his contention was that only paragraph (a) to Explanation to clause (1) of the impugned Article is violative inter alia of Articles 19 and 66 of the Constitution.

14. ' Whereas Dr.A. Basit, learned counsel for the petitioner in Constitution Petition No.24 of 1997, has submitted that the entire Article 63A of the Constitution is violative of the basic structure of the Constitution and, therefore, is liable to be struck down. He did not subscribe to the above submission of Syed Iftikhar Hussain Gilani that only paragraph (a) to Explanation to clause (1) of Article 63A involves infraction inter alia of Articles 19 and 66 of the Constitution.

15. Ch. Muhammad Farooq, learned Attorney-General who had appeared in response to Court notice, has contended as follows:

(i) That the above Constitution Petitions are most maintainable as the petitioners, who are non-members of the Parliament, have failed to demonstrate that their fundamental rights were m any way violated, particularly keeping in view that above Article 63A was passed unanimously by the Parliament and none of the members of the Parliament had ever challenged the vires of the same before any Court of law; and

(ii) That even otherwise the impugned Article is intra vires and it does not violate any provision of the Constitution nor does it in any way affect the so-called basic structure of the Constitution.

16. Mr. S. Sharifuddin Pirzada, learned counsel who appeared for the Federation of Pakistan has urged as under:

(i) That in Pakistan the Courts have not accorded recognition to the doctrine of basic structure of the Constitution and, therefore, the same cannot be pressed into service; and

(ii) That in any case the impugned Article of the Constitution neither violates any provision of the Constitution nor the doctrine of basic structure.

17. Learned Attorney-General as well as Mr. S. Sharifuddin Pirzada pointed out that the impugned Article was passed unanimously pursuant to inter alia the observations made by this Court in a number of judgments stressing the need of its incorporation in the Constitution.

4. In order to appreciate the above contentions of the learned counsel, it will be pertinent to reproduce here in below the Preamble to the amending Act and the impugned Article 63A of the Constitution which read as follows:

18. "Whereas it is expedient further to amend the Constitution of the Islamic Republic of Pakistan in order to prevent instability in relation to the formation of functioning of Government; "

19. 63A. Disqualification on ground of defection, etc.---(1) If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorised in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

20. Explanation. ---A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of political party after such election by means of a declaration in writing-

(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or

(c) abstains from voting in the House against party policy in relation to any Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the Party, whose decision thereon shall be final. In cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring that seat vacant and amend it under the schedule of the bye-election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article--

(a) 'House' means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) 'Presiding Officer' means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article. " .

5. It will not be out of context to mention that on account of cancerous vice of floor crossing, Pakistan was unable to achieve stability in the polity of the country. In this 'regard, it may be advantageous to refer to the legislative history relating to defection. It may be stated that Act XIII of 1962 enacted on or about 15-7-1962 section 8 in the Political Parties Act, 1962 (hereinafter referred to as Act III of 1962), which provided as follows:-

21. "8 Certain disqualifications for being a member of the National Assembly or a Provincial Assembly.---(1) A person who has been an office-bearer of the Central or a Provincial Committee of a political party dissolved under subsection (2) of section 6 or who has been convicted under section 7 shall be disqualified from being elected as a member of the National Assembly or a Provincial Assembly for a period of five years from the date of such dissolution or conviction, as the case may be.

(2) If a person having been elected to the National or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from it, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for the un expired period of his term as such member unless he has been re-elected at a bye-election caused by his disqualification."

22. The above subsection (2) was omitted by Ordinance No.XXI of 1974 dated 26-10-1974 with effect from 8-5-1974. It may be pointed out that above quoted section 8 was re-enacted and amended several times but it did not contain any provision corresponding to above subsection (2) of section 8 of Act III of 1962.

23. It may further be stated that section 8-B was enacted by Act No.XII of 1985 on or about 24-12-1985 providing as under:

24. "8-B. Disqualification on ground of defection, etc.---If a member of a House--

(a) having been elected as such as a candidate or nominee of a political party, or

(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the un expired period of his term as such member, unless he has been re-elected at a bye-election held after his disqualification.

(2) If any question arises whether a member of a House has become disqualified under subsection (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the Election Commission.

(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision. "

25. It may also be mentioned that Ordinance No.X of 1990 dated 22-10-1990 added explanation to section 8-B of the Act, whereby inter alia defection was defined. The above explanation reads as under:

26. "Explanation.---For the purpose of this section--

27. (a). a member of a House shall be deemed to defect a political party if he--

(i) votes or abstains from voting in such House contrary to any direction issued by the disciplinary committee of the Parliamentary Party to which he belongs or, if there be no disciplinary committee of such Parliamentary Party, by the Parliamentary Party itself, without obtaining in either case prior permission of the disciplinary committee or, as the case may be, of the Parliamentary Party, and such voting or abstention has not been condoned by the Parliamentary Party within thirty days from the date of such voting or abstention;

(ii) accepts any office of or under the Government of a political party other than the one to which he belongs without obtaining the prior permission in writing of the Parliamentary Party to which he belongs;

(b) 'House' means a House of the Majlis-e-Shoora (Parliament) and includes a Provincial Assembly;

(c) 'disciplinary committee of a Parliamentary Party' means a committee of not less than five members who for the time being are elected by the Parliamentary Party concerned;

(d) 'Parliamentary Party' in relation to a member of a House belonging to political party, means the group consisting of all the members of the House for the time being to that political party; and

(e) 'political party' also includes an alliance or combination of two or more political parties which participate in an election under a common symbol. "

28. It may further be observed that subsection (2) of section 8-B was amended by Act XXIII of 1992 on or about 10-12-1992 adding the right of hearing to the affected member to be provided by the Election Commission. Then Ordinance No.XXX of 1993, dated 7-10-1993 amended the aforesaid subsection (2) and substituted subsection (2) of section 8-B of the Act by providing for the words "majority of the members of such parliamentary party of the House" in above subsection (2). Whereas under subsection (3) the forum of appeal in place of the Supreme Court, the Speaker of the National Assembly or the Chairman of the Senate, as the case may be, was provided. Since the above Ordinance XXX of 1993 expired on or about 6-2-1994, the original section 8-B of the Act stood revived. There was controversy about the legality and enforceability of the above section 8-B and because of the above reason the same could not be effectively pressed into service against the members of the Assemblies who indulged in floor crossing. The matter came up before this Court in 1990, in the form of an appeal (with the leave of this Court) in the case of Humayun Saifutlah Khan v. Federation of Pakistan (PLD 1990 SC 599), in which interpretation of section 8-B(2) was involved, but the case was remanded to the Peshawar High Court by the majority view for deciding the writ petitions from which the above civil appeal had arisen. However, I in my dissenting note on the question of remand observed as under:-

29. "3 As regards the question, whether the case should be remanded to the High Court for adjudication upon the vires of section 8-B of the Act or should this Court take upon itself to decide the above issue, I may observe that when an original Court fails to decide an important question, two courses are open to an Appellate Court in an appeal against such a judgment/order, namely, (i) to remand the case to the original Court or to decide the question itself if the facts/dictates of justice so demand. In the present case the question, whether section 8-B of the Act violates any fundamental right is a question of great public importance which affects the body politic of this country. The popularly elected members of the assemblies and the public-at-large should know, whether section 8-B of the Act is legally enforceable provision or not as it provides penalty against defection by an elected member of an assembly. It is a question of the nature, which can directly be brought before this Court under clause (3) of Article 184 of the Constitution which provides that 'without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

30. Then inter alia in the case of Khawaja Ahmad Tariq Rahim v. The Federation of Pal stan (PLD 1992 SC 646) in which the dissolution of the National Assembly and the dismissal of Mohtarma Benazir Bhutto in 1990 were assailed and one of the points which was agitated, was the effect of defection. Shafiur Rahman, J. in his leading opinion has highlighted the vice of defection in the following words:

31. "Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of 'public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State."

32. After that the effect of section 8-B of the Act was agitated before this Court in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly (PLD 1995 SC 66), in which on account of defection of two members of the N.-W.F.P. Assembly belonging to P.M.L. (N) and A.N.P., the Government of Pir Sabir Shah was toppled down and Mr. Sherpao's Government belonging to P. P. P. was installed. In the majority view of-7:5, it was held that the provisions of section 8-B (2) and (3) of the Act were in conflict with Article 63(2) of the Constitution to the extent of forum which under the Act was the Supreme Court; whereas in clause (2) of Article 63 of the Constitution the Chief Election Commissioner was the forum provided, and thus the latter shall prevail. On the other hand in the minority view, it was held that there was no inconsistency between subsection (3) of section 8-B of the Act and clause (2) of Article 63 of the Constitution and that above section 8-B was intra vires and was intended to suppress the mischief of floor-crossing which was for the good of the country.

33. That because of the above majority view in the case of Pir Sabir Shah (supra) the vires of section 8-B remained clouded. There was a lot of public demand as well as there were observations in more than one judgments by this Court to the effect that there should be effective legislation to eradicate the vice of floor crossing in order to bring about stability in the polity of the country. In the above background, Constitution (Fourteenth Amendment) Act was passed unanimously by the Parliament, which came into force on or about 5-7-1997. None of the members of the National Assembly or the Senate assailed the vires of the above provision till the filing of the above two Constitution petitions on 25-10-1997 by the non-members as stated above when there was tension obtaining between the Executive and the then Hon'ble Chief Justice. In Constitution Petition No.25 of 1997 an application Civil Miscellaneous No.861 of 1997 was filed on 27-10-1997 for suspending the operation of the above Constitutional Amendment, whereupon on 29-10-1997 the aforesaid interlocutory order was passed quoted hereinabove in para. 2.

6. Before dilating upon the merits as to the vires of the impugned Article, I may refer to the preliminary objection of Ch. Muhammad Farooq, learned Attorney-General, to the effect that the petitions are not maintainable for the reason that none of the petitioners is a member of the Parliament, who could have a cause of action, if any. On the other hand, Syed Iftikhar Hussain Gilani, learned counsel, has contended that in view of the various pronouncements of this Court the question of locus standi in a proceeding under Article 184(3) of the Constitution has lost significance as this Court even otherwise can take cognizance of any matter suo motu which may involve a question of public importance with reference to enforcement of the Fundamental Rights conferred by Chapter 1 of Part II. According to him, paragraph (a) to Explanation to clause(1) of Article 63A of the Constitution is violative of inter alia Article 19 of the Constitution, which is a question of public importance relating to the enforcement of a fundamental right; thus, it is a fit case, in which this Court should remove doubt as to the scope and import of above paragraph (a) to Explanation to clause (1) of Article 63A. He has relied upon the following passage from the judgment of this Court in the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416):

34. "The opening words 'without prejudice' in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, 'to the provisions of Article 199', the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two-forums it wishes to invoke, and if it be the Supreme Court then the power exercise able is subject to the limitation under Article 18.4(3), that is, that the element of 'public importance' must be involved in the enforcement of Fundamental Rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exercise able on its own terminology. The impression, if there is, that the trappings of sub Article 1(a) and 1(c) of Article 199 are also to be read into this Article appears to me to be without substance as there are no words in Article 184(3) to incorporate them except, of course, the words 'make an order of the nature mentioned in the said Article', which are specifically referable to nature of the order in sub-Article 1(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. The nature of the order, however, is the end-product of the judicial power exercised."

35. He has also referred to my following observation in my opinion in the case of Al‑Jehad Trust v.Federation of Pakistan (PLD 1996 SC 324):‑‑

36. "14. The above reports relied upon also support Mr.Khairi's ' contention. I am inclined to hold that not only a practising Advocate but even a member of the public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meanningless if there is no independent Judiciary available in the country. The independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus standi as the Constitutional questions raised in the appeal as well as in the aforesaid Constitution petition are of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus standi in the present case has lost significance for the reason that we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference .to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution even suo motu without having any formal petition. "

37. The aforequoted extracts from the above judgments indicate that this .Court has been liberal in entertaining Constitution Petitions which involved questions of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution.

38. Ch. Muharrmad Farooq, learned Attorney‑General, has also submitted that this Court should now take strict view as the above Constitutional provision has been lately misused/exploited inasmuch as it has become a common practice for parties to file a direct petition in this Court instead of approaching a High Court to the detriment of the private litigants. There is no doubt that this Court cannot as a matter of course entertain a Constitution Petition ' under Article 184(3) of the Constitution and allow a party to bypass a High Court which has jurisdiction under Article 199 of the Constitution inter alia to enforce the Fundamental Rights under clause (2) thereof. Indeed this Court should be discreet in selecting cases ‑for entertaining under Article 184(3) of the Constitution and only those cases should be entertained which in fact and in law involve questions of public ‑importance with reference to the enforcement of any of the Fundamental Rights referred to in Chapter 1 of Part II of the Constitution. In my view, a balanced, consistent and indiscriminate policy is to be evolved by this Court. Individual grievance or grievance of a group of persons cannot be agitated under above provision of the Constitution in the absence of a question of public importance affecting the public‑at‑large or a class of persons in large number unascertainable.

39. Since we have already entertained the above Constitution Petitions and have heard the learned counsel for the parties, I am inclined to hold that it would foster democratic norms if we were to render authoritative pronouncement as to the scope and import of above Article 63A.

7. I may now refer to the contention of the learned counsel, Syed Iftikhar Hussain Gilani, who has taken exception to paragraph (a) to Explanation to clause (1) of above Article 63A. His submission was that the above paragraph is couched in such a way that it is not confined to floor crossing but it also deals with the breach of party discipline which has been defined therein to mean violation of the party constitution, code of conduct and declared policies, which according to him is violative of Articles 19 and 66 of the Constitution as no member of the House can dare to speak out against the wishes of the head of the party. His further submission was that it is not necessary to declare above paragraph (a) to Explanation to clause (1) of Article 63A as violative of above Articles 19 and 66 of the Constitution as it is sufficient to hold that there is a conflict between the above provision and Articles 19 and 66 of the Constitution, and that since the former carries lesser right, it would yield in favour of the latter Article which carries a higher right.

40. Dr. A. Basit, learned counsel pursuant to his above contention, has submitted that Article 63A is violative of basic structure of the Constitution and, therefore, as a whole is ultra vires. According to him, the elements of basic structure of the Constitution in Pakistan are (i) Representative Government, (ii) Independence of Judiciary, and (iii) Islamic concept.

41. It will be appropriate to first take up the contention of Dr. Abdul Basit as if we were .to agree to his above submission, in that event, it would not be necessary to examine the vires of paragraph (a) to Explanation to clause (1) of Article 63A. It may be mentioned that in Pakistan the Courts have not accepted the theory of basic structure of the Constitution except that in a recent judgment in the case of Mahmood Khan Achakzai v. Federation of Pakistan and others (PLD 1997 SC 426) certain observations in respect thereof have been made in the opinion of Sajjad Ali Shah, the‑then C.J. and Saleem Akhtar, J.

8. We may first refer to the position obtaining in India as regards the theory of basic structure. In the cases of Shankari Prasad v. Union of India (AIR 1951 SC 458) and Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), it was held that under Article 368 relating to the amendment of the Constitution, the Parliament had the power even to curtail any of the Fundamental Rights conferred by Part III of the Indian Constitution. The above view was founded on the assumption that the expression "law" used in Article 13(2), which corresponds to our Article 8, was only applicable to a legislative measure and not to a Constituent measure. Then came the judgment of the Indian Supreme Court in the case of Golak Nath v. State of Punjab (AIR 1967 SC 1967), in which the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule was challenged on the ground that the Constitution (Seventeenth) Amendment by which it was included as well as First and Fourth Amendments abridging the fundamental rights were unconstitutional. The Indian Supreme Court took a contrary view and it was held that the word "law" in Article 13(2) of the Indian Constitution would not only cover a legislative measure but also a Constituent measure so the Parliament is barred under Article 368 to make any law taking away or abridging any of the Fundamental Rights under Part III of the Constitution.

42. Then came the judgment of the Indian Supreme Court in the case of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461), in which the validity of Kerala Land Reforms Act of 1963 was challenged. But during the pendency of the above case the aforesaid Act was amended in 1971 and was placed in the Ninth Schedule by the Twenty-Ninth Amendment. The petitioner was permitted to assail the validity of Twenty-Fourth, Twenty-Fifth and Twenty-Ninth Amendments to the Constitution. The above case was heard by a Bench of thirteen Judges including the Chief Justice. In the above case, seven of the Hon'ble Judges, Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna and Mukherjee, JJ., held that the power of amendment under Article 368 is subject to certain implied and inherent limitations and that in the exercise of amending power the Parliament cannot amend the basic structure or framework of the Constitution. Whereas six other Hon'ble Judges, namely, Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ., were by and large not prepared to accept any limitation on the plenary power of the Parliament to amend the Constitution. Khanna, J., however, held that the right to property does not form part of the basic structure or framework of the Constitution. He concurred with the former six Members of the Bench including the Chief Justice. It may be stated that Sikri, C.J., explained the concept of basic structure by giving illustrations: --(i) Supremacy of the Constitution, (ii) Republican and Democratic form of Government, (iii) Secular character of the Constitution, (iv) Separation of powers between the Legislature, the Executive and the Judiciary, and (v) Federal character of the Constitution.

43. In the case of Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299) the Constitution (Thirty-ninth Amendment) Act, 1975, which contained amendment in Article 329-A of the Indian Constitution, was assailed which incorporated a number of new clauses having far-reaching consequences as to the scope of challenge to the elections of the Prime Minister and of the Speaker of the House. Newly-added fourth clause to the above Article provided that no law made by the Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of the Parliament and such election shall not be deemed to be void. The above fourth clause was the matter of controversy before the Indian Supreme Court. The majority (Khanna, Mathew and Chandrachud, JJ.) held that above clause (4) of Article 329-A as introduced by the Constitution 39th Amendment was unconstitutional and, therefore, was liable to be struck down being violative of the principle of free and fair elections which was an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (i) it abolishes the forum without providing for any forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (ii) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election (as per Khanna, J.).

44. In the case of Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789) a Constitution petition was brought before the Indian Supreme Court to assail the taking over by the Central Government of the management of the mill under the Sick Textile Undertakings (Nationalisation) Act, 1974, and an order under section 18A of the Industries (Development and Regulation) Act, 1951. The petitioner in that case alongwith others challenged the Constitutional validity of clauses (4) and`(5) of the Constitutional 42nd Amendment. If these clauses were validly inserted in the Constitution, that would have pre-empted the challenge to the validity of the 39th Amendment which included the Nationalisation Act, 1974, in the Ninth Schedule. The Indian Supreme Court unanimously held that clauses (4) and (5) of Article 368 incorporated by the 42nd Amendment as unconstitutional, transgressing the limits of the amending power and damaging or destroying the basic structure of the Constitution. The above clauses (4) and (5) read as follows: .

45. "(4) No amendment of this Constitution (including the provisions of Part III) made or .purporting to have been made under this Article (whether before or after the commencement of section 55 of the Constitution (Forty-Second Amendment) Act, 1976) shall be called in question in any Court on any ground.

(5) For the removal of doubt, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article."

46. In the case of S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386) the Indian Supreme Court upheld the validity of Article 323A which provided Administrative Tribunals free from the jurisdiction of all Courts except the Supreme Court on the ground that the Parliament can make effective alternative institutional mechanism or arrangement for judicial review without violating the basic structure of the Constitution of such arrangement or mechanism are not less effective than the High Courts.

47. Whereas in the case of P. Sambamurthy and others v. State of Andhra Pradesh and another (AIR 1987 SC 663) the Indian Supreme Court speaking through the Chief Justice Bhagwati unanimously held that clause (5) of Article 371 D, which was introduced by Thirty-Second Amendment of the Constitution with effect from 1-7-1974, was unconstitutional. The main part of the above clause provided that the final order of the Administrative Tribunals to be set up under clause (3) of the above Article shall become effective upon its confirmation by the Government or on the expiry of three months. The proviso to the above clause (5) empowered the Government to modify or annul any order of the Tribunal. It was held that proviso was violative of the .rule of law which was clearly the basic and essential feature of the Constitution.

48. Then came the judgment of the Indian Supreme Court (which has some relevance to the instant cases) in the case of Shri Kihota Hollohon v. Mr. Zachilhu (AIR 1993 SC 412). In this case inter alia para. 7 of the Tenth Schedule to the Constitution which barred the jurisdiction of the Courts in respect of any matter connected with the disqualification of a member of the House under the Schedule was assailed. It was unanimously held that the same was invalid as it had the effect of amending the powers of the Supreme Court and the High Courts without following the procedure required in proviso to Article 368 (2). However, there was split of three to two as to the effect of such invalidity on the rest of the Schedule. Applying doctrine of severability the majority held that para. 7 was severable from the rest of the Schedule. In the above case the Court unanimously held that democracy is a basic feature of the Constitution.

49. However, in the case of Shri Raghunathrao Gampatrao v. Union of India (AIR 1993 SC 1267), in which Constitution (Twenty-Sixth Amendment) r Act, 1971, which de recognised the former Indian Rulers and abolished their privy purses and other privileges by repealing Articles 291 and 362 of the Indian Constitution by inserting Article 363A, was assailed. The Indian Supreme Court though held that the repealed provisions were integral part of the Constitution but did not agree that every integral provision constituted basic structure of the Constitution and, therefore, declined the petition.

50. In the case. of R.C. Pondyal v. Union of India (AIR 1993 SC 1804) inter alia Article 371-F(f) and sections 7(1-A) and 25-A of the Representation of the People Act were assailed on the ground that differential treatment was given by providing reserved seats in State Assembly for Sikkimese of "BhutiasLepchas" origin, but the Supreme Court by majority view held that the above different treatment was justified on the ground of historical considerations and that the above departures were not such as to negate fundamental principles of democracy.

9. There is no doubt that in India the. majority of the Judges of the Indian Supreme Court have held in favour of the doctrine of basic structure of the Constitution. However, there seems to be no uniformity among them as to the subjects items which are covered or can be covered by the above doctrine. I have already, pointed out hereinabove that Sikri, C.J. in the case of Kesavananda_ Bharati (supra) had given illustration of basic structure of the Constitution by stating (i) supremacy of the Constitution, (ii) Republican and democratic form of Government, (iii) secular character of the Constitution, (iv) separation of powers between the Legislature, the Executive and the Judiciary, and (v) Federal I character of the Constitution. Whereas in other cases which include the, above cited cases the Indian Supreme Court, also included rule of law, harmony and balance between the fundamental rights and directive principles, independence of judiciary and unamendability of the basic structure as the parts of the basic structure of the Constitution. See S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386) (supra), Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1989) (supra), Kumar Padma Prasad v. .Union of India (AIR 1992 SC 1213) and I. Manilal Singh v. Dr. H. Borobabu'Singh and another (AIR 1994 SC 505).

51. It may also be pointed out that the Indian Supreme Court pressed into service the doctrine of basic structure of the Constitution when an impugned Constitutional amendment was of such a nature, which was to destroy any of the basic features of the Constitution, without which the State could not have been run as was originally mandated by the Framers of the Constitution. Any change or deviation as to the working of a limb of the State which did not destroy any of the basic features of the Constitution had been upheld by the Indian Supreme Court as is evident from the judgment in the case of S.P. Sampath Kumar v. Union of India (supra). (AIR 1987 SC 386), wherein normal Courts were substituted by Tribunals subject to appeal to the Supreme Court, which was upheld by the Indian Supreme Court. Nor the Indian Supreme Court pressed into service the doctrine of basic structure in a case, when the amendment in the Constitution has strengthened the democratic norms in the larger interest of the country; thus Constitution (Twenty-Sixth Amendment) Act, 1971, which de recognized the former Indian Rulers and abolished their privy purses, was upheld in the case of Shri Raghunathrao Campatrao v. Union of India (supra) (AIR 1993 SC 1267).

52. 10 We may now refer to the judgment of the , Supreme Court of Bangladesh, Appellate Division, rendered in the case of Anwar Hussain Chowdhry v. Government of the People's Republic of Bangladesh (1989 BLD (Supplement) 1). In the above case the facts were that on 8-5-1982 General Hussain Muhammad Ershad as the Chief Martial Law Administrator amended the Schedule to the proclamation of 24-3-1982 (which was considered as a mini Constitution), whereby he assumed powers to set up permanent Benches of the High Court Division with seats at such places and for such areas as may be specified by notification. Initially permanent Benches were set up at three places, Rangpur, Comilla and Jessore, and later on at three other places, namely, Chittagong, Sylhet and Barisal areas were also established. The High Court Division at Dhaka continued to function with truncated jurisdiction. Judges were transferred to six permanent Benches. By a further amendment of the Proclamation by Proclamation Order No.lll of 1986, dated 17-6-1986, these permanent Benches were designated as Circuit Benches and it was provided that when Article 100 of the Constitution was to be revived the Circuit Benches shall be deemed to be sessions of the High Court Division at Dhaka under that Article. The Martial Law was withdrawn by a Proclamation on 10-11-1986 and the Constitution was fully revived on the same day. The Constitution (Seventh Amendment) Act, 1986 (Act I of 1986) was published in the official Gazette on 11-I1-1986, whereby the Proclamation etc. were ratified and confirmed and declared to have been validly made not to be called in question in or before any Court, Tribunal or Authority on any ground whatsoever. -However, subsequently it was realised that aforesaid Proclamation Order No.lIl of 1986, dated 17-6-1986 was no longer an operative law and, therefore; the Chief Justice issued a fresh notification on 24-11-19$6 in exercise of his powers under Article 100 appointing, with the approval of the President, the same six places where Circuit Benches were functioning during the Martial Law period to be the places in which sessions of the High Court Division may be held on such dates and for such period as may be specified by him. The above notification was followed by another notification of the Chief Justice specifying the jurisdiction to be exercised by each session and the areas covered by them. There was unrest on account of the above establishment of the Benches. Thereupon, the Constitution (Eight Amendment) Act, 1988 (Act No.XXX of 1988) was enacted on 9-6-1988, substituting Article 100 altogether providing that the High Court Division shall have a permanent Bench each at the same places where Circuit Benches and sessions were held during the Martial, Law period and the period following. Judges of the High Court Division were made transferable to the permanent Benches. It was also provided that in consultation with the Chief Justice, the President shall assign the area in relation to which such permanent Bench shall have jurisdiction, powers and functions conferred or may be conferred on the High Court Division by the Constitution or any other law. It was also provided that the High Court Division at Dhaka shall have like jurisdiction, powers and functions over the unassigned area. On I1-6-1988 the President issued notification assigning areas of the six permanent Benches and on the same date the Chief Justice issued notification relating to the permanent Benches. The above Eighth Amendment in the Constitution was challenged before the Supreme Court of Bangladesh, where the majority of 3 to I struck down the impugned amendment of Article 100 and the notifications on the ground that there was implied limitation on the power of amendment of the Constitution and that there was difference between legislative power and Constituent power. It was further held that the Parliament by exercising the power of amending the Constitution could not amend the basic structure of the Constitution. All the learned Judges recorded their separate opinions. It will suffice to refer to Justice Shahabuddin Ahmed's opinion from the majority view, which is quite exhaustive. In his above opinion his Lordship accepted the basic structure theory as under:

53. "Article. 1 which provides that Bangladesh is a unitary, independent, sovereign Republic'. Like the permanent seats of the other two Organs, namely the Executive and the Legislature, seat of the Supreme Court is in the capital of the Republic. This integrated Supreme Court is a part of the basic structure of the Constitution; it cannot be damaged directly or indirectly. Separation of the High Court Division from the Supreme Court is not permissible because it is an integral part of the Supreme Court, nor is it permissible to create a separate High Court under the Supreme Court as it will run counter to the unitary character of the State opening a door for ultimate disintegration of the State. Status of the High Court Division of the Supreme Court is higher than that of a Provincial High Court in a Federal State, such as India or Pakistan. High Court is headed by a Chief Justice who is inferior in rank and status not only to the Chief Justice of the country but also to other Judges of the Supreme Court. But the High Court Division as an integral part of the Supreme Court is headed by the Chief Justice of the country and its territorial jurisdiction is co-extensive with that of the Appellate Division, that is all over the Republic."

54. His Lordship reached the above conclusion after referring a number of judgments of foreign jurisdiction including the historic decision of the United States Supreme Court in the case of Marbury v. Madison (U.S. 2 Law Ed. 5-8 p.135) handed down by Marshal, C.J. and from which he quoted the following passage:

55. "That the people had an original right to establish for their future Government such principles, as in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent." (Emphasis supplied).

56. In the body of the opinion Shahabuddin Ahmed, J. highlighted that democracy, Republican Government, Unitary State, separation of powers, independence of the Judiciary and fundamental rights were the basic structures of the Bangladesh Constitution. His Lordship struck down the above Eighth Amendment for the reason that it affected the unitary character of the Judiciary and its independence by making the Judges transferable to the Benches. .

57. Whereas A.T.M. Afzal, J. (as his Lordship then was) in his dissenting opinion pointed out that it is inconceivable that the Makers of the Constitution had decided on all matters for all people of all ages without leaving any option to the future generation. He also pointed out that if it was right that the Makers of the Constitution wanted the so called "basic features" to be permanent features of the Constitution there was nothing to prevent them from making such a provision in the Constitution itself. In support of the latter reason he highlighted that the Constitution makers could provide a similar provision as of sub-Article- (1 A) in Article 142 providing for a more difficult procedure of referendum in case of amendment of some of the provisions of the Constitution and by not so providing they manifested that there was no other provision of the Constitution so basic that it would need a referendum to be incorporated in the Constitution.

58. The above case seems to be only case of the Supreme Court of Bangladesh where the doctrine of basic structure of the Constitution was pressed into service by the Bangladesh Supreme Court in order to save the Judiciary from being divided and its independence being jeopardised.

59. ~11. We may now refer to Pakistani case-law. Mr.S.Sharifuddin Pirzada, learned counsel for the Federation, has referred to the following judgments to point out that the basic structure theory has been consistently rejected by this Court and the High Courts.

(i) In the case of State v. Zia-ur-Rehman (PLD 1973 SC 49), Hamoodur Rahman, C.J. made the following observation on the point of basic structure of the Constitution:

60. "It will be observed that this does not say that the Objectives Resolution is the grund norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that flow from it. I did not describe the Objectives Resolution as 'the cornerstone of Pakistan's legal edifice' but merely pointed out, that one of the learned counsel appearing in the case had described it as such. It is not correct, therefore, to say that 1 had held it, as Justice Ataullah Sajjad has said in his judgment, I to be a transcendental part of the Constitution' or, as Justice Muhammad Afzal Zullah has said, to be a I supra-Constitutional instrument which is unalterable and immutable'."

(ii) In the case of The Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151, this Court has held, inter alia, as under:

61. "We are not unmindful of these provisions but after our decision in Ziaur-Rahman's case we are no longer in a position to say that the Martial Law Regulations, under which the executive actions impugned in the present cases were taken, have not acquired the status of a 'law' within the meaning of these Articles. In any event it is not possible for us to declare that a provision of the Constitution is not law because it seeks to oust the jurisdiction of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot strike it down. We can only interpret it, according to the accepted rules of interpretation and define its nature and scope."

(iii) Whereas in the case of Islamic Republic of Pakistan v. Wali Khan, M.N.A. (PLD 1976 SC. 57) (supra) Hamoodur Rahman, C.J. after referring to some cases of Indian jurisdiction made following observations: " but it is unnecessary for us to enter into this controversy, as this Court is committed to the view that 'the judiciary cannot declare any provision of the Constitution to be invalid or repugnant' to the national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to the one prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution', vide State v. Zia-ur-Rahman

62. (PLD 1973 SC 49)."

(iv) Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v. United Mills Ltd., Karachi (PLD 1977 SC 397), wherein at page 410 Muhammad Gul, J, who delivered the opinion on behalf of the Supreme Court, observed as follows:-

63. " In Pakistan, this Court in the case of Zia-ur-Rahman (PLD 1973 SC 49) has however firmly laid down the principle that a Constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as 'national aspirations' or an 'abstract concept' so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra-Constitutional instrument. In the instant case, the two amendments are not questioned for want of competency or any other formal defect."

(v) Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457).

64. In the above case Muhammad Haleem, C.J. after referring to the Indian cases in which certain amendments of the Constitution were held to be violative of basic structure reiterated this Court's dictum in Zia-ur-Rahman's case by quoting "That a Constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "national aspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra-constitutional instrument

(vi) Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lahore 725), in which a Full Bench of the Lahore High Court observed that "Thus the scope of sub-clause (b) of clause (2) of Article 58 cannot be enlarged by any ratio or rule similar to the "basic structure" theory, as pronounced in India. Even otherwise this theory has not been accepted by the Supreme Court of Pakistan in Fauji Foundation's case (PLD 1983 SC 457)".

(vii) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Kar. 404).

65. In the above case a Full Bench of the High Court of Sindh comprising myself and six other learned Judges after referring to some of the above cases of the Indian Supreme Court has held that a Constitutional provision cannot be struck down on the ground of being violative of the basic structure or of the framework of the Constitution.

12. From the above case-law, it is evident that in Pakistan the basic structure theory consistently had not been accepted. However, it may be pointed out that in none of the above reports the impugned Article was such which could have been treated as altering the basic feature/structure of the Constitution. If the N Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment.

66. I may now advert to the observations of Sajjad Ali Shah, the then C.J. and Saleem Akhtar, J. in the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) (supra). The former observed as under:-

67. "26. It is not necessary to dilate upon the case of Zia-ur-Rahman any further for the reason that at present we are concerned only with Objectives Resolution in the Constitution appended as preamble. Even in that capacity it invariably has remained preamble in all the four Constitutions including the Interim Constitution of 1972 and therefore, it has to be read for the purpose of proper interpretation in order to find out as to what scheme of governance has been contemplated. Let us assume that it does not authoritatively provide grund norm and also it does not describe specifically the basic structure of the Constitution, even then also it does help in interpreting and understanding the scheme of governance and salient features of the Constitution which are described therein including Islamic provisions, federalism and Parliamentary form of Government and fully securing independence of Judiciary. Islamic provisions are very much embedded in the Constitution of 1973 as Article 2 thereof envisages that Islam shall be the State religion of Pakistan and Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Further, Article 228 provides for setting up Council of Islamic Ideology. Similar provisions existed in Articles 197 and 198 of the Constitution of 1956 and Articles 199 to 207 of the Constitution of 1962. Similar Islamic provisions existed in the Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting federalism, Parliamentary form of Government blended with Islamic provisions.

68. 27 In the Constitution of 1973 in its original form Article 238 provides for amendment of the Constitution and Article 239 lays down the procedure for such amendment and is composed of seven clauses. Clause (7) provided that a Bill to amend the Constitution which would have effect of altering the limits of a Province could not be passed by the National Assembly unless approved by resolution of Provincial Assembly of that Province by votes of not less than two-thirds of total membership of that Assembly. This shows anxiety of the Constitution-makers of that time not to make it easy to alter the limits or boundaries of a Province unless Assembly of that Province consented with votes of not less than two-thirds of the total membership of that Assembly. This anxiety was justified in the aftermath of loss of East Pakistan. Article 239 was amended by P.O. No.20 of 1985 and substituted by P.O. No.14 of 1985 which are protected for validity by Constitution (Eighth Amendment) Act No.XVIII of 1985. Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provision providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of Majlis-e- Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eight Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution."

69. His Lordship further observed;

70. "Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It, therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are. "

71. In the above case Saleem Akhtar, J. observed as follows:-

72. "34. It can thus be said that in Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature, characteristic or structure of the Constitution. The theory of basic structure has, thus completely been rejected. However, as discussed hereunder every Constitution has its own characteristics and features which play important role in formulating the laws and interpreting the provisions of the Constitution. Such prominent features are found within the realm of the Constitution. It does not mean that I impliedly accept the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its own characteristics.

73. .

44. Apart from the fact that Constitution confers and guarantees fundamental rights, Article 8 prohibits the Federal Government, Majlise-Shoora (Parliament), a Provincial Government and a Provincial Assembly from making any law which takes away or abridges such fundamental rights. It further declares that the law made to the extent of such contravention shall be void. This by itself is a limitation on the Legislature. Clause (2) of Article 8 reads as follows:-

74. 'The State shall not .make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention be void.'

75. Significantly by employing the words 'any law', the intention of the Constitution seems to be that Article 8 will apply to all laws made by the Majlis-e-Shoora (Parliament) be it general or any law to amend the Constitution. Likewise no enactments can be made in respect of the provision of the Constitution relating to Judiciary by which its independence and separation from Executive is undermined or compromised. These are in-built limitations in the Constitution completely independent from political morality and force of public opinion."

13. Mr. S. Sharifuddin Pirzada, learned counsel appearing for the Federation, has submitted that the above-quoted observations of Sajjad Ali Shah, the then C.J. and Saleem Akhtar, J. cannot be treated as an operative part of the judgment in view of their finding contained in the short order in para. 10(2) of the opinion of Sajjad Ali Shah, the then C.J., which read as under:-

76. "2. What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment. "

77. His further submission was that in view of the above para. 2 of the short order and because of the above-quoted observations of Saleem Akhtar, J. contained in para. 34 of his opinion that "It does not mean that I impliedly accept the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its own characteristics", his Lordship's observations contained in above-quoted para. 44 cannot be treated as a finding of having accepted the basic structure theory.

78. Mr. S. Sharifuddin Pirzada has also invited our attention to Saleem Akhtar J.'s observation to the effect that the term "law" used in Article 8 of the Constitution includes the Constitution itself, and submitted that the same is not correct as it runs counter to Articles 5, 61, 63, 137, 175(2), 199 and 202 of the Constitution, wherein the terms "law" and the "Constitution" have been used in contradistinction. I am inclined to hold that the words "any law" used in clauses (1) and (2) of Article 8 of the Constitution do not include any provision of the Constitution which is evident from the above referred Articles, wherein the word "law" and the word "Constitution" have been used in contradistinction. There is a well-defined distinction between "Legislative power" and "Constituent power". The above Articles apparently were framed keeping in view the above distinction. In this view of the matter, the same cannot be treated as synonymous connoting the same meaning. As a corollary, it must follow that the validity of a Constitutional provision cannot be tested on the touchstone of Article 8 of the Constitution.

14. Reverting to impugned Article 63A of the Constitution, it may be pointed out that Dr. A. Basit, learned counsel appearing for the petitioner in Constitution Petition No.24 of 1997, has candidly conceded that the impugned Article cannot be struck down on the ground that it was in conflict with any of the Fundamental Rights as guaranteed by the Constitution. His submission was that the above impugned Article is violative of the basic structure of the Constitution as pointed out hereinabove. In our view, it is not necessary in the instant case to hold that the basic structure theory is applicable in Pakistan as we are inclined to hold that the impugned Article is not violative of any of the alleged three basic structures highlighted by Dr. A. Basit, namely, representative form of Government, Islamic concept of democracy and independence of Judiciary. The impugned Article will bring stability in the polity of the country as it will be instrumental in eradicating cancerous vice of the floor-crossing. It is also in consonance with the tenets of Islam and Sunnah as the same enjoined its believers to honour their commitments if the same are not in conflict with the teachings of Islam and Sunnah. We are unable to subscribe to the learned counsel for the petitioner's submission that paragraph (a) to Explanation to clause (1) of Article 63A rendered a member of the Parliament ineffective or non-entity as he cannot speak anything against the party constitution, code of conduct and declared policies of the party. In our view, paragraphs (a), (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution are to be read together. The basic object of the impugned Article contained in paragraphs (b) and (c) to the Explanation to clause (1) thereof is to ensure that a member of the Parliament should not vote contrary to any direction issued by the Parliamentary Party to which he belongs nor he should abstain from voting in the House against the party policy in relation to any bill. The above basic object is not violative of any Constitutional provision or any. Constitutional principle. It may be stated that paragraph (a) to the aforesaid Explanation prohibits a member of the Parliament from committing a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies. The breach referred to in this paragraph should be relatable to the objects specified in the aforementioned paragraphs (b) and (c) to the Explanation to clause (1) of the impugned Article if a member is to be disqualified from the membership on the ground of defection. The above view gets support, if we were to examine impugned Article 63A in juxtaposition with Article 63 of the Constitution as the latter Article inter alia covers acts/omissions on the part of a member of the Parliament generally committed by him outside the Parliament.

79. We are unable to agree with the submission of the learned Attorney-General, Ch. Muhammad Farooq and Mr. S. Sharifuddin Pirzada, learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1) of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in conformity with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intentment. A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament, and I for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament.

15. Dr. A. Basit, learned counsel, has particularly referred to clause (6) of the impugned Article, which provides that "Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to any action under this Article" and submitted that the same is hit by the doctrine of basic structure as in most of the above Indian Supreme Court cases the exclusion of the jurisdiction of the High Courts and the Supreme Court was treated as a breach of the basic structure of the Constitution. It will suffice to observe that it has been consistently held by this Court that the question, as to whether a superior Court has jurisdiction in a particular matter or not, is to be decided by the Court itself. No provision of whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above question as laid down inter alia by the dictum in the case of State v. Zia-ur-Rehman (supra). Furthermore' the simpliciter factum that a particular provision of the Constitution contains a non-abstante clause will not itself be sufficient to deny the jurisdiction of the superior Courts if the impugned action/order is without jurisdiction, coram non judice or mala fide. In this behalf reference may be made to the case of Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) in which the scope of Article 270A of the Constitution which contained a non abstante clause and which was couched in the broadest possible wordings was in issue. It was held that the Court had the jurisdiction to interfere with the acts performed without jurisdiction, coram non judice and mala fide. In our view, the above clause (6) of Article 63A does not debar a High Court or M this Court from examining an order passed under the above Article in terms of the aforesaid judgment.

16. We may observe that in Pakistan instead of adopting the basic structure theory or declaring a provision of the Constitution as ultra vires to any of the Fundamental Rights, this Court has pressed into service the rule of interpretation that if there is a conflict between the two provisions of the Constitution which is not reconcilable, the provision which contains lesser right must yield in favour of a provision which provides higher rights. This was adopted first time by me in the case of Al-Jehad Trust (PLD 1996 SC 324) wherein the following was held with reference to conflict between Article 203-C and Article 209(7) of the Constitution:

80. "Since there is a conflict between the above two Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of Judiciary should be secured as provided by the founder father of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of Judiciary from the Executive. Keeping in view the various provisions of the Constitution, it is not possible to' reconcile the above provisions of Article 203-C and Article 209. In such a situation, the question arises, which of the Articles should prevail. One view can be that since Article 203-C was incorporated subsequent to Article 209, the former should prevail. The other view can be that since Article 209 was incorporated by consensus by the framers of the Constitution and whereas Article 203-C was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of Judiciary and the separation of Judiciary, the former should prevail. I am inclined to prefer the latter interpretation as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fair play. A person cannot be appointed on adverse terms in a new Court without his consent. "

81. The same was explained by me in the case of Shahid Nabi Malik v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32).1 after quoting the following extracts from Corpus Juris Secundum, Vol. 16, page 97; and Halsbury's Laws of England, Fourth Edition, Vol. 44, page 532, para. 872:

82. Corpus Juris Secundum. Vol. 16, nape 97:

24. Conflicting provisions in general. ---Although apparently conflicting provisions will be reconciled wherever possible, in case of a conflict in the provisions of a Constitution,, if one or the other must yield, the one which, under the law, is the lesser right will yield. ,

83. With respect to Constitutional construction, distinct Constitutional provisions are repugnant to each other only when they relate to the same subject, are adopted for the same purpose, and cannot be enforced without substantial conflict. While apparently conflicting provisions of a Constitution will be reconciled wherever possible, if one or the other must yield, that one which, under the law, is the lesser right will yield to the other."

84. Halsbury's Laws of England Fourth Edition, Vo1.44, 12.532:

85. "872. Statute to be construed as a whole.---For the purposes of construction, the context of words which are to be construed includes not only the particular phrase or section in which they occur, but also the other parts of the statute.

86. Thus a statute should be construed as a whole so as, so far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute. Where the meaning of sweeping general words is in dispute, and it is found that similar expressions in other parts of the statute have all to be subjected to a particular limitation or qualification, it is a strong argument for subjecting the expression in dispute to the same limitation or qualification.

87. It is sometimes said that where there is an irreconcilable inconsistency between two provisions in the same statute, the latter prevails; but this is doubtful, and the better view appears to .be that the Courts must determine which is the leading provision and which the subordinate provision, and which must give way to the other. " held as under

88. "7. A perusal of the above-quoted extracts from the aforesaid treatises indicates that even when there is a conflict in Constitutional provisions, efforts should be made to reconcile the same but where it is not possible, the provision which relates to a lesser right will yield to the provision which contains a higher right. In the case of Al-Jehad Trust (supra), since clause (7) of Article 209 of the Constitution related to the security of tenure of the Judges of the superior Courts which is sine qua non for ensuring independence of Judiciary as enjoined and guaranteed by the Constitution, it is a clause containing a higher right relating to one of the dominant objects of the Constitution, whereas the clauses contained in Article 203-C of the Constitution as to the appointment of a sitting Chief Justice of a High Court or a sitting Judge of a High Court to the Federal Shariat Court without his consent for a period of two years (which makes him susceptible to clause (4-B) of Article 203-C, which empowers the President to modify the terms of appointment of a Judge or assigned to a Judge any other office and require a Judge to perform such other functions as the President may deem fit or to pass such other order), are provisions containing a lesser right. In this view of the matter, the former provision, namely, clause (7) of Article 209 was to prevail over the latter provision. "

89. The above principle was reiterated by Saleem Akhtar, J. in his opinion in the case of Mahmood Khan Achakzai v. Federation of Pakistan (supra) as under:

90. "43. It is a well-recognised principle of interpretation of Constitution that if two provisions conflict with each other the Courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of the Constitution guaranteeing fundamental rights, independence of Judiciary and democratic principles blended with Islamic provisions. Thus, it is the lesser right which must yield in favour of higher rights. Reference may be made to Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), Halsbury's Laws of England, -4th Edition; Vol.44, page 532 and para. 872 and Corpus Juris Secundum, VoI.16, page 97. Ajmal Mian, J, while explaining his observation in the case of Al-Jehad Trust (PLD 1996 SC 324), relating to conflict between Article 209(7) carried higher right preserving the independence of Judiciary and should prevail over Article 203-C which negated the same."

91. We are, therefore, inclined to hold that in case of an irreconcilable conflict between two provisions of the Constitution, the same is to be resolved by applying the above principle of interpretation. It is not necessary to press into t service the basic structure theory. It may be pointed out that in the case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), this Court has held that no provision of the Constitution can be declared as ultra vires on the F ground that the same is in conflict with Article 2A of the Constitution.

17. Syed Iftikhar Hussain Gilani, learned counsel for the petitioner in Constitution Petition No.25 of 1997, has submitted that the above paragraph (a) to Explanation to clause (1) of Article 63A is capable of being misused or exploited. It will suffice to observe that if an individual case is brought before us the same will be examined, but at this juncture we cannot assume that the above clause would be exploited or would be misused by the leader of a political party. There seems to be no conflict between paragraph (a) to Explanation to clause (1) of the above Article 63A with Articles 19 and 66 of the Constitution, as the above paragraph does not expressly provide that a member cannot express his views in exercise of his right under above Article 66 on any matter which is brought before the House. The above paragraph (a) to above Explanation is to be construed in conjunction with Articles 66 and 19 and efforts should be made to F preserve the right of freedom of speech on the floor of the House subject to reasonable restrictions, without which a Parliamentary form of Government cannot be run effectively. It may be pointed out that freedom of speech in a Parliamentary form of Government, subject to reasonable restrictions, is sine qua non; hence the above paragraph (a) cannot be. construed in a manner which would defeat the basic feature of the Parliamentary form of Government.

18. The upshot of the above discussion is that the above impugned Article is not violative of any provision of the Constitution. However, in order to avoid future unnecessary litigation and to provide guideline, we may clarify the following points:

(i) That paragjaph (a) is to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of occurred within the House.

(ii) That the above paragraph (a) to Explanation to clause (1) of Article 63A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.

92. With the above clarification, boat the above Constitution Petitions are disposed of.

93. (Sd.)

94. AJMAL MIAN, C.J

95. I agree with the conclusion subject to my opinion separately recorded.

96. (Sd.)

97. Saiduzzaman Siddiqui, J.

98. I agree that the petitions are maintainable and the impugned Article is not violative of my provision of the Constitution. However, in view of the importance of the case, I have added my own note.

99. (Sd.) . .

100. Irshad Hasan Khan, J

101. I respectfully agree with the proposed judgment subject to my note to be appended.

102. (Sd.)

103. Raja Afrasiab Khan, J

104. I have written a separate note

105. (Sd.)

106. Mamoon Kazi, J

107. (Sd.)

108. Sh. Riaz Ahmad, J

109. I agree

110. (Sd.)

111. Ch. Muhammad Arif, J

112. SAIDUZZMAN SIDDIQUI, J.---I have had the advantage of going through the judgment proposed to be delivered by my Lord the Chief Justice in the above mentioned two petitions filed under Article 184 (3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be called as 'the Constitution') to challenge the validity of Article 63A of the Constitution, inserted in the Constitution through Constitution (Fourteenth Amendment) Act, 1997 (hereinafter to be referred as 'the 14th Amendment'). I agree with the conclusion of Hon'ble Chief Justice that Article 63A inserted through 14th Amendment after Article 63, in the Constitution is a valid Constitutional provision. However, in view of the importance of the issue, I have recorded my separate reasons for the above conclusion.

113. Article 63A has been inserted in the Constitution through the 14th Amendment. The Bill containing the 14th Amendment was passed by the two Houses of Parliament without a vote of dissent on 1-7-1997 and it received the assent of President on 3-7-1997. To understand the background of the passage of the 14th Amendment Bill in the Parliament in its true perspective, it is necessary to state here briefly the history of legislation in the country on the subject of defection and floor-crossing.

114. The earliest attempt to seek a legislation on this subject found expression in the two identical motions (Private Members Bill) introduced by two members of the then National Assembly of Pakistan. Messrs Ch.Azizuddin and Yusuf Haroon, in the Assembly on 5-9-1958. However, before any action could be taken on these Bills, the country was placed under Martial Law on 7-10-1958, resulting in the dissolution of Assemblies and abrogation of the Constitution of 1956. The first legislative measure, therefore, dealing with the vice of floor-crossing/defection by elected members of a political party, was introduced by promulgating the Political Parties Act, 1962 (hereinafter to be called as 'the Act') which came into effect on 15-7-1962. Subsection (2) of section 8 of the Act was in these terms:--

115. "(2) If a person, having been elected to the National or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from it, he shall, from the date of . such withdrawal, be disqualified from being a member of the Assembly for the unexpired period of his term as such member unless he has been re-elected at a bye-election caused by his disqualification. "

116. At the time the Act was promulgated, the Constitution of 1962 was enforced in its original form. Chapter-1 in Part II of the Constitution of 1962 with the heading "Fundamental Rights" containing Articles 6 to 19, was subsequently substituted on 16-1-1964 through Constitution (First Amendment) Act, 1963 (Act I of 1964). Simultaneously, Schedule IV was also added in the Constitution of 1962 which besides giving protection to the Act, provided immunity to various Presidential Orders, Martial Law Regulations, Central Acts, Ordinances and West Pakistan Acts, specified in the Schedule, from being challenged on the ground of repugnancy to Article 6 of the Constitution of 1962. Section 8(2) of the Act thus held the field until it was omitted with retrospective effect from 8-5-1974 by Act XXI of 1975 passed on 18-2-1975. In the meantime, Constitution of 1973 was adopted. While the Constitution Bill was being piloted in the Assembly, the then Law Minister, Mr. Abdul Hafeez Pirzada, in his speech delivered in the Assembly on that occasion, stressed the need for discouraging the tendency of opportunism, adventurisn and defiance by the members of political parties of the whip of the party whip. These observations of the then Law Minister found expression in the proviso to subclause (5) of Article 96 of the Constitution which reads as follows:--

117. "Article 96:--

(1) A resolution for a vote of no confidence may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be moved in the National Assembly unless, by the same resolution, the name of another member of the Assembly is put forward as the successor.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in. the National Assembly.

(5) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the President shall call upon the person named in the resolution as the successor to assume office and on his entering upon office his predecessor and the Federal Ministers and Minister of State appointed by him shall cease to hold office:

118. Provided that, for a period of ten years from the commencing day or the holding of the second general election to the National Assembly whichever occurs later, the vote of a member, elected to the National Assembly as a candidate or nominee of a political party, cast in support of a resolution for a vote of no-confidence shall be disregarded if the majority of the members of that political party in the National Assembly has cast its votes against the passing of such resolution.

(6) If a resolution referred to in clause (1) is not passed, another such resolution shall not be moved until a period of six months has elapsed."

119. After adoption of Constitution of 1973, though subsection (2) of section 8 of the Act, which provided for disqualification of an elected member of an Assembly who after his election on the ticket of a political party defects or withdraws from that party, was omitted from the Act, but the proviso to clause (5) of Article 96 of the Constitution of 1973 which provided that if a member of Assembly elected as a candidate or nominee of a Political party casts his vote on a resolution of no-confidence contrary to the majority vote of that party shall be disregarded, served as an effective check against the defection of elected members of the Assembly of a political party. Article 96 remained part of the Constitution of 1973 until 2-3-1985 when it was omitted by Presidential Order No. 14 of 1985. After omission of Article 96 of the Constitution of 1973, there was no law in the field in Pakistan dealing with floor-crossing or defection by the elected members of the Assemblies belonging to a political party. To fill this gap, Act XXII of 1985 was passed by the then Assembly of Pakistan on 24-12-1985, which added following section 8-B in the Act:--

120. "8B. Disqualification on ground of defection, etc.---If a member of a House,--

(a) having been elected as such otherwise than at a candidate or nominee of a political party, or

(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall from the date. of such defection or withdrawal, be disqualified from being a member of the House for the un expired period of his term as such member, unless he has been re-elected at a bye-election held after his disqualification.

(2) If any question arises whether a member of a House has become disqualified under subsection (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the Election Commission.

(3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision.

121. Explanation.---In this section, 'House' means a House of the Majlis-e-Shoora (Parliament) and includes a Provincial Assembly."

122. By Ordinance X of 1990 promulgated on 22-10-1990, the following Explanation was added to section 8B of the Act:--

123. "Explanation. ---For the purpose of this section (a) a member of a House shall be deemed to defect a political party if he--

(i) votes or abstains from voting in such House contrary to any direction issued by the disciplinary committee of the Parliamentary Party to which he belongs or, if there be no disciplinary committee of such Parliamentary Party, by the Parliamentary Party itself without obtaining in either case prior permission of the disciplinary committee or, as the case may be, of the Parliamentary Party, and such voting or abstention has not been condoned by the Parliamentary Party within thirty days from the date of such voting or abstention;

(ii) accepts any office or under the Government of a political party other than the one to which he belongs without obtaining the prior permission in writing of the Parliamentary Party to which he belongs;

(b) 'House' means a House of the Majlis-e-Shoora (Parliament) and includes a Provincial Assembly;

(c) 'Disciplinary Committee of a Parliamentary Party' means a committee of not less than five members who for the time being are elected by the Parliamentary Party concerned;"

124. Ordinance VIII of 1991 promulgated on 1-2-1991 repealed Ordinance X of 1990 and re-enacted the above explanation added to section 8B ibid on 22-10-1990. Ordinance VIII of 1991 was, however, not placed before the Assembly as required by Article 89 of the Constitution of 1973 with the result it lapsed after 4 months of the date of its promulgation and consequently stood repealed under the Constitution. With the repeal of Ordinance VIII of 1991, the Explanation added to section 8B of the Act also stood repealed from the statute book. Before the general elections of 1993, Ordinance XXX of 1993 was promulgated by the Caretaker Government on 7-10-1993, which made the following amendments in section 8B of the Act:

125. Amendment of section 8B, Act III of 1962.--In the Political Parties Act, 1962 (III of 1962), in section 8B,--

(a) in subsection (2), for the words 'Election Commission' the words ' majority of the members of such Parliamentary Party of the House' shall be inserted; and

(b) for subsection (3), the following shall be substituted, namely:---

126. "The member against whom decision has been made by the Parliamentary Party under subsection (2) may, within ten days, prefer an appeal before the Speaker of the National Assembly or Provincial Assembly or the Chairman of the Senate, as the case may be, who shall decide the appeal within thirty days."

127. Ordinance XXX of 1993 was also not placed before the Assembly as required by Article 89 of the Constitution of 1973 and accordingly, it stood repealed on the expiry of 4 months from the date of its promulgation, and consequently the amendments introduced by it in the Act were also repealed.

128. This Court on more than one occasion in its judgments, pointed out the vice of defection and floor crossing by the elected representatives and impressed upon the need to eliminate this unhealthy and immoral practice from the body politics of the country. Shafiur Rehman, J. in the case of Kh. Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646) highlighted the vice of defection by elected representatives of the Assemblies in these words:--

129. "The preamble to our Constitution prescribes that 'the State shall exercise its powers and authority through the chosen representatives of the people'. Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or oh account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character, which he no longer represents, and to fight a re-election. This will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the worldly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that 'sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust' and the State is enjoined to 'exercise its powers and authority through the chosen representatives of . the people'. An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. he cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular .standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but 'mockery of the democratic Constitutional process'. The other enumerated evils contained in first ground precede, accompany or follow the defection."

130. I also had the occasion of examining this immoral practice of defection by elected representatives on Islamic Principles of polity in the case of Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) and my observations were as follows:--

131. "Defection in its concept and political parlance refers to an act of political opportunism to obtain immoral gains and worldly advantages through exploitative approach of one's representative and political status. Such acts cannot be justified on any known principle of Islamic polity. Islam ordains the believers to stand by their promises and fulfil their commitments. In Verse 91 of ( ) God has ordained:---

132. The translation of the Verse is as follows:--

133. "91. Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after the asseveration of them, and after ye, have made Allah surety over you. Lo: Allah knoweth what ye do."

134. Similarly, in Verse No.77 of ( ) God has ordained as follows:

135. "77. Lo: those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no. portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom. "

136. In Verse No.34 of ( ) the direction to faithfuls to fulfil their commitments is as follows:--

137. .... and keep the covenant. Lo: of the covenant it will be asked."

138. In Verse No.27 of ( JWUI Lr ) the commandment of God to discharge the trust is in these words:-

139. "27. O ye who believe. betray not Allah and His Messenger, nor knowingly betray your trusts. "

140. Similarly in ' Mishkhat-ul-Masabih, various sayings of Holy Prophet (peace be upon him), have been quoted as under:-

141. "Abu Hurairah reported that the Messenger of Allah said: The signs of a hypocrite are three. When he talks, he speaks falsehood; and when he promises, he breaks, and when he is entrusted, commits treachery, Agreed upon it. (Add Muslim added: Even though he keeps fasts, prays and thinks that he is a Muslim.)

151. Abdullah-b-Aamr reported that the Messenger of Allah said: Whoso has got four things in him is a true hypocrite, and whoso has got a habit therefrom in him has got in him a habit of hypocrisy till he gives it up; when he is trusted, he is unfaithful; and when he speaks, he speaks falsehood; and when he makes promise, he proves treacherous, and when he quarrels, he commits sin--- Agreed.

152. Ibn Omar reported that the Messenger of Allah said: The parable of a hypocrite is a goat roaming between two goats going once unto this and once unto that. "

142. The narration of above Islamic Principles make it clear that Islam requires the believers to carry out their promises and commitments whenever made (except where such promises are made against any express Injunction of Islam), and refrain from committing the breach of any trust. A person who seeks election as a candidate of a political party on its ticket, holds out to his party and the electorate his abiding faith on the manifesto of his party. His defection from the party after election, therefore, amounts to his refusal to carry out his promise and commitment besides constituting a breach of the trust reposed in him by his electorate. Such an act of defection cannot be justified on any known principle of morality muchless on any recognised Code of Islamic Polity. As pointed out in the celebrated passage in Khawaja Ahmed Tariq Rahim's case (supra), quoted earlier in this judgment, if a person after his election as a candidate of a political party finds himself unable to subscribe to the programme and policy of that party, the only honourable course for him is to renounce his representative character, which reflects his abiding faith to the programme and policies of that party, and seek a fresh mandate from his electorate on the basis of his changed loyalties. This course will be fully in accord with the principles of Islamic polity. The manifest intention behind section 8B of the Act is to promote principled politics by rooting out corrupt practices embedded in our body politics. A legislation based on such cherished objectives cannot be described as un-Islamic or unconstitutional under Article 2A of the Constitution of 1973. I, accordingly, hold that section 8B of the Act is neither in conflict with Article 2A of the Constitution of 1973 nor it contravenes any express or known Injunction of Islam.

143. The then learned Chief Justice in his majority opinion in Sabir Shah's case (supra) drew the attention of Legislature towards the need for improvement in the legislation to deal with the vice of defection and floor-crossing by elected members of the Assembly and in this connection referred to the amendments introduced by the Indian Legislature by adding clause (2) in Article 102 and the 10th Schedule in the Indian Constitution, as follows:--

144. "38. It appears clearly from what is stated above that on the subject of defection law is to be framed by the Legislature and has to be construed or interpreted by the Courts as it t . On the subject of defection the law which holds the field is the Political Parties Act, 1962 which cannot be improved by the Courts during interpretation in the sense that some thing can be added to it which is not put there by the Legislature. We cannot and should not make any comments on the merits or demerits of defection because these questions are to be left open to be determined by competent forum where such questions can be raised and vires of law are questioned. It would be pertinent to mention that neighbouring country India also faced the same problem which has been solved in 1985 by both major parties one in Government and other in opposition, by agreeing upon Constitutional Fifty-Second Amendment Bill, which has been incorporated in the Tenth Schedule to the Constitution of India suitably amending Article 102 thereof as well. Resultantly, now in the Indian Constitution law on the subject of defection is categorical' and explicit and grounds of defection mentioned in detail."

145. It is axiomatic that every political party in this country condemned, in strongest term, the vice of floor-crossing and defection by the elected members of the Assemblies and promised to eliminate this evil from the body politic of the country, if voted to power but as would appear from the history of legislations narrated above that when in power, the political parties turned a blind eye towards this immoral practice. Therefore, before the advent of last general election in the country in 1997, there was a public outcry against the vice of defection and floor crossing by elected representatives of Assemblies, and under tremendous pressure of public opinion the two major political parties held out promises to their electorate that if voted to power they will do away with the vice of defection and floor-crossing by members of Assemblies elected on the ticket of a political patty, through legislative measures. In the above stated background when the 14th Amendment Bill was moved in the two Houses of Parliament by the Ruling party it was not only supported by the main opposition parties in the Parliament but it was carried through without a vote of dissent.

146. Notwithstanding the fact that 14th Amendment was passed by the Parliament without any vote of dissent and no challenge to its validity or constitutionality has been thrown by any of the parties in the Parliament or by any elected member of the Parliament, the petitioners as members of the public and claiming to represent the public opinion, have impugned the validity of 14th Amendment in these petitions under Article 184 (3) of Constitution directly, before this Court. I would, however, not like to go into the question of locus standi of the petitioners as I subscribe to the view taken by the Hon'ble Chief Justice regarding maintainability of these two petitions under Article 184(3) of the Constitution.

147. Mr. Iftikhar Hussain Gilani, the learned counsel for petitioner in Civil Petition No.25 of 1997 challenged only the validity of clause (a) of the Explanation appended to Article 634 of the Constitution on the ground that it contravened Articles 19 and 66 of the coonstitution. The learned counsel argued that sub-clause (a) does not deal with the conduct of an elected member of the political party within the Parliament but makes the breach of party discipline or violation of the Constitution, Code of Conduct and declared policy of the party, whenever committed, as an act of defection. The learned counsel, accordingly, argued that clause (a) of Article 63A bears no nexus to the act of defection or floor-crossing and is merely a device to keep the elected representative of a political party hostage at the whims of the party leader thereby robbing him of his right to represent his electorate and to exercise his right of dissent or speech as a representative of his constituency.

148. Dr. Abdul Basit, the learned counsel for Wukala Mohaz Barai Tahafuze-Dustoor, the petitioner in Civil Petition 24 of 1997, however, contended that whole of Article 63A was ultra vires of the Basic Structure of the Constitution which according to the learned counsel are (i) a representative Government, (ii) independence of Judiciary and (iii) Islamic features of the Constitution. According to learned counsel, the concept of representative Government under the Constitution, does not contemplate existence of political parties and therefore, a Parliamentary democracy can function without existence of political parties. The learned counsel contended that the Legislature while amending the Constitution does not exercise Constitutional power but only legislative power and therefore, the scope of amendment is very limited. According to Dr. Basit, the entrenched and essential features of the Constitution cannot be changed in the garb of amendment of Constitution, which is only a legislative power. The learned counsel very heavily relied on the pronouncement of the Supreme Court of Bangladesh in the case of Anwar Hussain Chowdhury and others v. Republic of Bangladesh (Civil Appeals Nos.42 and 43 of 1998) in support of his contention that the Courts have power to declare an amendment in the Constitution ultra vires on the ground of being repugnant to basic structure of the Constitution. The learned counsel further argued that the newly-added. Article 63A by providing that the Supreme Court and the High Court shall not entertain any legal proceedings or exercise any jurisdiction or make any order in relation to any action under Article 63A, acted against the concept of independence of Judiciary and specially item No.55 of the legislative list in the Fourth Schedule which permitted legislation only enhancing the jurisdiction of the Apex Court.

149. The learned Attorney-General and Mr. S.S.Pirzada, the learned Senior Advocate Supreme Court, representing the Federation of Pakistan, on the other hand contended that the basic structure theory has not been accepted by the Courts in Pakistan. Referring to the views of Indian Supreme Court on the theory of basic structure of the Constitution, Mr. Pirzada pointed out that the Indian Supreme Court in the beginning did not- accept the theory of basic structure of the Constitution and held in two cases decided in 1951 and 1965 that the Parliament in exercise of its constituent powers could amend Part III of the Indian Constitution which contained fundamental rights. However, this view was departed in 1967 in Golak Nath's case and it was held that Parliament by amendment in the Constitution cannot change the basic structure of the Constitution. This view too has undergone change and the latest view expressed by the Indian Supreme Court in this behalf is that the Parliament in exercise of its constituent power can amend and abridge the fundamental rights short of their abrogation. Large number of cases were cited at the Bar by the learned counsel in support of their respective contentions which will be referred at appropriate stages.

150. The first question which arises for consideration in these case is, what is the extent of the power of Parliament in Pakistan to amend the Constitution. The necessary corollary to this question is, whether the power to amend the Constitution conferred on the Parliament under the Constitution is unlimited or it is circumscribed by the concept of basic structure, entrenched feature or fundamental principles of the Constitution. The second question which needs attention in these cases is, whether the power to amend the Constitution is a legislative power or a Constituent power of the Parliament. The third and the last question which is to be addressed in these cases is, to what extent the superior Courts through exercise of their power of judicial review, can exercise control over the power of the Parliament to amend the Constitution.

151. The question whether the Parliament in Pakistan has unlimited power to amend the Constitution or its power to amend the Constitution is confined within the limits of basic structure, or entrenched features or fundamental principles of the Constitution, has not been answered by this Court so far authoritatively with reference to any concrete case of amendment introduced in the Constitution by the Parliament. However, from the observations of general nature made by this Court in various cases, it can be inferred that the theory of basic structure of Constitution with reference to the power of Parliament to amend the Constitution has not found favour with this Court. However, before referring to the cases wherein this Court did not accept the theory of basic structure of the Constitution with reference to the power of Parliament to amend the Constitution, it will be useful to first refer to the relevant provisions in the Constitution dealing with the power of Parliament to amend the Constitution. The power to amend the Constitution is contained in Part XI of the Constitution, which consists of Articles 238 and 239. While Article 238 is still in its original form, the present Article 239 was substituted in place of original one by P.O. 20 of 1985. I am reproducing here both the original as well as substituted Article 239, which are as follows:--

152. Original Article 239:

153. "239. Constitution Amendment Bill.---(1) A Bill to amend the Constitution shall originate in the National Assembly and when the Bill has been passed by the votes of not less than two-thirds of the total membership of the Assembly it shall be transmitted to the Senate.

(2) If the Bill is passed by the Senate by a majority of the total membership of the Senate it shall be presented to the President for assent.

(3) If the bill is passed by the Senate with amendments, it shall be reconsidered by the National Assembly; and if the Bill as amended by the Senate is passed by the Assembly by the votes of not less than two-thirds of the total membership of the Assembly, it shall be presented to the President for assent.

(4) If the Bill is not passed by the Senate within ninety days from the day of its receipt the Bill shall be deemed to have been rejected by the Senate.

(5) The President shall assent to the Bill within seven days of the presentation of the Bill to him, and if he fails to do so he shall be deemed to have assented thereto at the expiration of that period.

(6) When the President has assented to or is deemed to have assented to the Bill, the Bill shall become Act of Parliament and the Constitution shall stand amended in accordance with the terms thereof.

(7) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be passed by the National Assembly unless it has been approved by a Resolution of the Provincial Assembly of that Province passed by the votes of not less than two-thirds of the total membership of that Assembly. "

154. Substituted Article 239:

155. "239.---(1) A Bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House.

(2) If the Bill is passed without amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall, subject to the provisions of clause (4), be presented to the President for assent.

(3) If the Bill is passed with amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall be reconsidered by the House in which it had originated, and if the Bill as amended by the former House is passed by the latter by the votes of not less than two-thirds of its total membership it shall, subject to the provisions of clause (4), be presented to the President for assent.

(4) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be presented to the President for assent unless it has been passed by the Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership.

(5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution. "

156. In State v. Zia-ur-Rahman (PLD 1973 SC 49), this Court stated the limit of the scope of examination of the Constitutional provision by the superior Courts in exercise of their power of judicial review, as under:-

157. "Having said this much about the Constitutional position of the Courts and their relationship with the other equally important organ of the State, namely; the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the Judiciary can, in the exercise of its judicial power, strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the Judiciary as the Constitution of the country, the Judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view, however, solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. In fact that document contains the expression of the will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the Judiciary. It follows from this that under our own system too the Objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been replaced or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it. If it appears only as a preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof. This does not, however, mean that the validity of no Constitutional measure can be tested in the Courts. If a Constitution measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional document."

158. In Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 151) this Court while examining the amendment made in clause (2) of Article 281 of the Interim Constitution with reference to the power of President contained in Article 279 of the Interim Constitution made these observations:--

159. "It will be observed that sub-clause (c) of clause (1) gives to the President for a short period of less than one year powers of even making amendments in the Constitution but it is contended that this power is only ancillary to the powers given by sub-clauses (a) and (b) thereof. These provisions have been modelled on the lines of some of the relevant provisions of section 9 of Indian Independence Act, 1947. Clause (c) of the said section 9(1) also gave a similar power to the Governor-General to make, inter alia, modifications in the Government of India Act, 1935 but no Court has held that this power was controlled by the other clauses of the said section. The decisions cited by the learned counsel himself take the view that the powers of the Governor-General were co-equal to those of the British Parliament itself in that behalf (vide Moulvi Tamizuddin Khan v. Pakistan (PLD 1955 Sindh 96). This Court also held in the case of Dawarkadas v. The State PLD 1957 SC (Pak.) 72 that the Governor-General had in exercise of his power to make additions validly incorporated section 92-A in the Government of India Act, 1935. This contention, therefore, cannot be accepted. The power given by sub-clause (c) of clause (1) of Article 279 of the Interim Constitution was in no way controlled by the other clauses. The amendment was competently made.

160. The further contention that in any event no amendment under Article 279 of the Interim Constitution would be intra vires if it had the effect of repealing the Constitution or destroying it does not fall to be considered in this case, because, the amendment under challenge has by no means done that. The amendment, as already pointed out, merely added , some words to the existing Article 281 of the Interim Constitution by way of clarification which may well come within sub clause (b) of clause (1) of Article 279."

161. In Islamic Republic of Pakistan v. Wali Khan (PLD 1976 SC 5-7), the Federal Government had made reference to this Court seeking decision on the order passed by the Government dissolving and banning the activities of a political party, under section 6(2) of the Political Parties Act, 1962 on the grounds that the political party was operating in a manner prejudicial to the sovereignty and integrity of the country. During the course of hearing of this reference before this Court, the question regarding the Constitutional validity of the amendment made in Article 17 of the Constitution was raised which was decided as follows:-

162. "Mr. Pirzada, has, in our view, also rightly pointed out that if section 6 is, as was at one stage suggested by the learned Attorney-General, to mean that power has been given thereunder to the Federal Government to dissolve a political party then the provisions of section 6 would themselves be violative of the Constitutional guarantee given by Article 17 of the Constitution, which originally read as follows:-

163. ' 17.---(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. Every political party shall account for the source of its funds in accordance with law.'

164. Clause (2) was, however, deleted by the Constitution (First Amendment) Act, 1974, passed on the 8th May, 1974. This deleted the original clause (2) and substituted in its place two new clauses to the following effect:-

165. 'Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within 15 days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance with law.'

166. It will be observed that Article 17 is in Chapter 1, Part II of the Constitution, which deals with Fundamental Rights. The Constitution, therefore, guarantees to every citizen, who is not in the service of Pakistan, the right to form a political party or to be a member of a political party and this right is subject only to reasonable restrictions imposed by law, in the interest of the sovereignty or integrity of Pakistan. Such a law must, nevertheless, provide that whenever. the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall, within 15 days of such a declaration, refer the matter to the Supreme Court whose 'decision' shall be final.

167. It will be further noticed that in the original Article 17, the only power given to the State was to impose reasonable restrictions by law on the right of association in the interest of morality or public order and the right to form a political party was only hedged in with the condition of accounting for the source of its funds, but now it has been further provided that reasonable restrictions may also be imposed by law in the interest of the sovereignty and integrity of Pakistan. In such a case the law may also give to the Executive the power to declare that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan but after making the said declaration, it must refer the matter to the Supreme Court for its decision. This amended clause does not say that as a. result of the Executive's declaration the party shall stand dissolved.

168. Mr. Pirzada has, therefore, firstly contended that the power to impose reasonable restrictions did not extend to the dissolution of the party. if, therefore, the Legislature by the amendment of subsection (1) of section 6 of the Political Parties Act sought to take away the power given by the Constitution to the Supreme Court and vested it in the Executive, then to that extent subsection (1) of section 6 of the Political Parties Act was ultra vires the Constitution.

169. He has also raised the question as to whether a provision of a Constitution relating to a fundamental right could at all be made so as to abridge or take away that right. We are told that the Supreme Court of a neighbouring country by a majority of six to five actually took such a view in the case of Golak Nath v. State of Punjab (AIR 1967 SC 1943), but this view was modified subsequently by a larger Bench by a majority of seven to six in the case of Kesavanauda v. State of Kerala (AIR 1973 SC 1461), to the extent that 'while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest'. The minority, of course, took the view that the power to amend is 'wide and unlimited' and that the power to amend includes the power to repeal. The minority view in the last-mentioned case is in line with the decisions of that Court prior to 1967 Vide: Shankari Prasad v. Union of India (AIR 1951 SC 458) and Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), but it is unnecessary for us to enter into this controversy, as this Court is committed to the view that 'the Judiciary cannot declare any provision of the Constitution to be invalid or repugnant' to that national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to the prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution', vide State v. Zia-ur-Rahman (PLD 1973 SC 49). Even otherwise, as conceded by Mr.Pirzada himself, the amendment effected in Article 17 in 1974 was neither a total abrogation of the right to form a political party nor in any manner an unreasonable restriction of such a right; its validity is not open to question. We entirely agree. No such wide right can be conceded as would tend to destroy the very existence of the country. Indeed no country in the world gives such a right in an unlimited form as has been pointed out by Mr. Pirzada himself by reference to the Constitutions and laws of various countries including the U.S.A. and Great Britain."

170. (The underlining is by us).

171. In Federation of Pakistan v. United Sugar Mills Ltd. (PLD 1977 SC 397), this Court while considering the amendments introduced in Article 199 of the Constitution, by section 8 of the Constitution (Fourth Amendment) Act, 1975, observed as follows:-

172. "This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vires of the two provisions of the Amending Act set out in the beginning. Learned counsel, however, did not assail the amendments on the larger ground as was done in Golak Nath's case (AIR 1967 SC 1943) decided in the Indian Jurisdiction. In that case a narrowly divided Supreme Court ruled that the Indian Parliament lacked the power to amend Part III of the Indian Constitution which provides for Fundamental Rights. However, the majority view in that case was modified later in the case of Kasavnuda (AIR 1973. SC 1461) again by a narrow majority. In Pakistan, this Court in the case of Zia-ur-Rehman (PLD 1973 SC 49) has, however, firmly laid down the principle that a Constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as 'national inspirations' or an 'abstract concept' so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra-Constitutional instrument. In the instant case, the two amendments are not questioned for want of competency or any other formal defect."

173. In the case of Fauji Foundation -4. Shamimur Rehman (PLD 1983 SC 457) this Court reiterated the principles relating to power of judicial review exercised by superior Courts in relation to legislative actions, as follows:

174. "Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, ' it is not because the judicial power is superior in degree or dignity to the legislative power' but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its Constitutional limits.

68. Clearly, therefore,, the scope of judicial review is confined to the' enforcement of the Constitution as supreme law. Aside from the inherent prerogative to interpret the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the legislation. It, however, does not extend to prying into the affairs of the Legislature. "

175. In the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) a seven-member Bench of High Court of Sindh consisting of Ajmal Mian, C.J. (as he then was), Saiduzzaman Siddiqui, J. (as he then was), Saleem,Akhtar, Haider Ali Pirzada, Syed Abdul Rehman, Mamoon Kazi and Abdul Rasool Agha, JJ.) relying on the decision of this Court in Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) and Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), held that the Courts cannot declare a Constitutional provision ultra vires on the touchstone of Article 2A of the Constitution and that the basic structure theory in relation to the power of Parliament to amend the Constitution propounded by the Indian Supreme Court has not been accepted by the Courts in Pakistan. These were the precise observations of the Court in Sharaf Faridi's case:--

176. "Mr. Sharaf Faridi has vehemently contended that the Objectives Resolution is a supra-Constitutional provision, whereas Mr. Khalid M. Ishaque appearing as amicus curiae has contended that the Objectives Resolution has now become part of the Constitution and, therefore, is to be given effect. He has not urged that it is a supra-Constitutional provision. It will suffice to observe that Article 270A which was originally incorporated by President's Order No. 14 of 1985 was substituted by the Act No.XVIII of 1985 with effect from 30-12-1985 whereby the National Assembly and the Senate reaffirmed the various amendments made in the Constitution. In the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar and others reported in PLD 1989 SC 26 Full Bench comprising of the learned Chief Justice and nine learned Judges of the Supreme Court; proceeded on the assumption that Article 270A was competently incorporated. In this view of the matter, I am inclined to hold that it is not open to this Court to hold that any of the Constitutional provisions is violative of the Objectives Resolution.

8. As regards the submission that the aforesaid amendments in the Constitution were destructive to the basic structure of the Constitution, it may be observed that Mr.G.M. Qureshi has relied upon the Indian Supreme Court's judgments in support of his submission. In this regard, it may be mentioned that in the case of Shankari Prasad v. Union of India (AIR 1951 SC 458) the Indian Supreme Court held that the amendment of the Constitution curtailing fundamental rights contained in Part III of the Indian Constitution passed by the Parliament was valid. The aforesaid view was reaffirmed by the Indian Supreme Court in the case of Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845). However, the above view was overruled by the Indian Supreme Court in the well known case of L.C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643) in which it was held that the Indian Parliament was not competent to curtail any of the fundamental rights provided in above Part III of the Indian Constitution. The above view had come up for consideration before the Indian Supreme Court in the case of his holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another, in connection with the Constitution 24th Amendment Act which was passed by the Indian Parliament to get over the above decision of the Indian Supreme Court in Golak Nath's case. a Special Bench of 13 Judges unanimously upheld the Constitutional validity of the aforesaid Constitution 24th Amendment Act, 1971 and in doing so it overruled its earlier judgment in Golak Nath's case. It further held that all Articles including those relating to fundamental rights can be amended provided that the basic structure and framework of the Constitution are not altered. According to the Indian Supreme Court in the above case the following were the basic structure and framework of the Indian Constitution:

(i) Supremacy of the Constitution:

(ii) Republican and Democratic form of Government:

(iii) Secular character of the Constitution;

(iv) Separation of powers between the Legislature, the Executive and the Judiciary;

177. (v Federal character of the Constitution

178. The above view was reaffirmed in the subsequent cases by the Indian Supreme Court. In this regard, reference may be made to the case of Smt. Indira Nehru Gandhi v. Raj Narain, reported in AIR 1975 SC 2299, in which clauses (4) and (5) inserted in Article 329 by Constitution 39th Amendment Act of 1975 were assailed. It may be stated that clause (4) purported to deny the right of appeal against an election to the Parliament. It was held that the same was liable to be struck down on the ground that it violated the principle of free and fair election which was an essential postulate of democracy and which in its turn was a part of the basic structure of the Constitution.

179. I may observe that in the above Fauji Foundation case (PLD 1983 SC 457) some of the above judgments of the Indian Supreme Court were considered but the Honourable Supreme Court has not accorded its approval to the above doctrine of basic structure and framework of the Constitution."

180. In Mahrnood Khan Achakazi v. Federation of Pakistan (PLD 1997 SC 426) this Court examined the Constitutional validity of Constitution (Eighth Amendment) Act, 1985 (hereinafter to-be referred as 'Eighth Amendment'). The then learned Chief Justice while examining the scope of the power of the Parliament to amend the Constitution, made the following observations regarding theory of basic structure of the Constitution:--

181. "27. In the Constitution of 1973 in its original form Article 238 provides for amendment of the Constitution and Article 239 lays down the procedure for such amendment and is composed of seven clauses. Clause (7) provided that a Bill to amend the "Constitution which would have effect of altering the limits of a Province could not be passed by the National Assembly unless approved by Resolution of Provincial Assembly of that Province by votes of not less than two-thirds of total membership of that Assembly. This shows anxiety of the Constitution makers of that time not to make it easy to alter the limits or boundaries of a Province unless Assembly of that Province consented with votes of not less than two-thirds of the total membership of that Assembly. This anxiety was justified in the aftermath of loss of East Pakistan. Article 239 was amended by P.O. No.20 of 1985 and substituted by P.O. No. 14 of 1985 which are protected for validity by Constitution (Eighth Amendment) Act No.XVIII of 1985. Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provision providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained .and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution."

182. Saleem Akhtar, J. who was also a Member of the Bench which decided Achakzai's case (PLD 197 SC 426) in his separate opinion (Fatal Ilahi Khan, Irshad Hasan Khan and Munawar Ahmad Mirza, JJ. agreeing with Saleem Akhtar, J.) recorded in that case after reviewing the Constitutional history of Pakistan and referring to the law laid down by this Court defining the scope of judicial review in respect of legislative measures, concluded as follows:

183. "34. It can, thus, be said that in Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature,; characteristic or structure of the Constitution. The theory of basic structure had thus completely been rejected. However, as discussed hereunder every Constitution has its own characteristic and features which play important role in formulating the laws and interpreting the provisions of the Constitution. Such prominent features are found within the realm of the Constitution. It does not mean that I impliedly accept the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its own characteristics.

184. 35 Mr.Ismail Qureshi contended that the Objectives Resolution which was included in the 1956 Constitution as a Preamble is the key to the Constitution. This Resolution was moved in the First Constituent Assembly and has continued to be adopted as a Preamble to the Constitution. By Eighth Amendment, Article 2A was added, which has made the Objectives Resolution a substantive part of the Constitution, but to say that it is the basic structure in the sense the Indian Supreme Court has adopted, does not hold force. Mr.ismail Quershi has contended that every building has a structure. He has referred to the meaning of structure as given in Black's Law Dictionary and contended that structural alteration or change affects the vital and substantial portion of a thing which changes its characteristics which destroys the fundamental purpose of its erection and contemplated uses. As observed earlier, there are some characteristic features in every Constitution which are embedded in the historical, religious and social background of the people for whom it is framed. It cannot be denied that every Constitution has prominent feature, characteristics and picture-frame studded with public aspiration, historical inspiration, geographical recognition, political formulations and people's expectation. These winding paths which roll into the stream, with the passage of time and tide do affect the flow in their own perspective which to the rigid theory would amount to unpardonable change but to a flexible theory it would be a natural result of such confluence and influence. Doubtless, Pakistan owes its creation to ideological belief which is so manifestly reflected in the Objectives Resolution that it has always remained the Preamble of almost all our Constitutions and has been source of guidance to all. The provisions of the Constitution though not rigidly encircled by it, always remain within its horizon subject to all such 'fin , changes which manifest different shades of the same colour. A Constitution is the aspiration of the people. It is the experience of the past, the desires of the present nation and last but not the least a hope for the future. A Constitution is a document for all times to come. It cannot be made rigid because such rigidity if confronted with the social aid political needs of the time, is likely to create cracks in it. The consistent view of the superior Courts of Pakistan is more real and should be followed and maintained.

185. I now turn to the views of Indian Supreme Court expressed on the controversy in number of reported cases from time to time. But before doing so, I would like to reproduce here the original and the amended provisions in the Indian Constitution relating to the power of Parliament to amend the Constitution. The power of Parliament to amend the Constitution and the procedure thereof is contained in Article 368 of Indian Constitution. The original and the amended Article 368 of the Indian Constitution reads as under:-

186. "Original Article 368: Procedure for Amendment of Constitution:

368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

187. Provided that if such amendment seeks to make any change in--

188. (a)Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter 4 of Part V, Chapter 5 of Part VI, or Chapter I of Part XI, or

(c) Any of the Lists in the Seventh Schedule, or

(d) The representation of States in Parliament, or

(e) The provisions of this Article,

189. The amendment shall also require to be ratified by the Legislatures o1 not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent."

190. Amended Article 368:

191. "368. Power of Parliament to amend the Constitution and procedure therefor.--(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

192. Provided that if such amendment seeks to make any change in--

(t) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(g) Chapter 4 of Part 5, Chapter 5 of Part VI, or Chapter of Part XI, or (h) Any of the Lists in the Seventh Schedule, or

(i) The representation of States in Parliament, or

(j) The provisions of this Article,

193. The amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. "

(3) Nothing in Article 13 shall apply to any amendment made under this Article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article (whether before or after the commencement of section 55 of the Constitution (Forty-Second Amendment) Act, 1976 shall be called in question in any Court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article."

194. Article 368 was amended twice by the Indian Parliament. It was first amended by section 3 of the Constitution (24th Amendment Act) of 1971 which substituted Article 368 consisting of only sub-clauses (1) to (3), sub-clauses (4) and (5) of Article 368 were later substituted by section 55 of the Constitution (42nd Amendment) Act, 1976. The Indian Parliament through Constitution (First Amendment) Act, 1951 inserted Articles 31-A and 31-B in the Indian Constitution. Article 31-A aimed at saving laws providing compulsory acquisition by the State of certain kinds of properties while Article 31-B validated certain Acts. The laws saved and validated under Articles 31-A and 31-B of Indian Constitution but for such saving and validation could be challenged under Article 13 of the Indian Constitution which provided that all laws to the extent of inconsistency with the fundamental rights mentioned in Part III of Indian Constitution, were void. In the case reported as Shankari Prasad v. Union of India (AIR 1951 SC 458) the Constitutional validity of Constitution (First Amendment) Act and insertion of Articles 31-A and 31-B in the Indian Constitution was challenged on the ground of their inconsistency with the provision in Part III of Indian. Constitution but a Bench of five learned Judges of the Supreme Court of India repelled the contention, as follows:-

195. "13. Although 'law' must ordinarily include Constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and Constitutional law, which is made in exercise of constituent power. Dicey defines Constitutional law as including 'all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State'. It is thus mainly concerned with the creation of the three great organs of the State, the Executive, the Legislature and the Judiciary, the distribution of Governmental power among them and the definition of their mutual relation. No doubt our Constitution-makers, following the American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however, difficult, in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from Constitutional amendment. We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion 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 alterations of the Constitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with .restrictions that its exercise must be difficult and rare. On the other hand, the terms of Article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two Articles each of which is widely phrased, but conflicts in its operation ,with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the, considerations adverted to above, we are of opinion that in the context of Article 13 'law' must be taken to mean Rules or Regulations made in exercise of ordinary legislative power and not Amendments to the Constitution made in exercise of constituent power, with the result that Article 13(2) does not affect amendments made under Article 368."

196. In 1964, the Indian Parliament through Constitution (17th Amendment) Act amended Article 31 A and the 9th Schedule of the Indian Constitution. The validity of the Constitution (17th Amendment) Act and amendment of Article 31 A and the 9th Schedule of the Indian Constitution were challenged before the Indian Supreme Court on the ground of their inconsistency with the provisions contained in Part III of the Indian Constitution in the case reported as Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845). A Bench of Supreme Court of India consisting of five learned Judges, with majority of 3 to 2 upheld the validity of Constitution (17th Amendment) Act, 1969 following the decision in Shankari Prasad's case, as follows:-

197. "19. Then it is urged that the power to amend, which is conferred by Article 368, does not include the power to take away the fundamental rights guaranteed by Part 111. The provisions of the impugned Act is to take away a citizen's right to challenge the validity of the Acts added to the Ninth Schedule, and that means that in respect of the said Acts, the relevant fundamental rights of the citizens are taken away. We do not think there is any dictionary meaning of the word 'amend' is to correct a fault or reform but in the context, reliance on the dictionary meaning of the word is singularly inappropriate, because what Article 368 authorises to be done is the amendment of the provisions of the Constitution. It is well-known that the amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their place of new provisions. Similarly, an amendment of the Constitution which is the subject-matter of the power conferred by Article 368, may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend in the context is a very wide power and it cannot be controlled by the literal dictionary meaning of the word 'amend'.

20. The question about the validity of the Constitution (First Amendment) Act has been considered by this Court in Shankari Prasad Singh v. Union of India (1952 SCR 89): (AIR 1951 SC 458). In that case, the validity of the said Amendment Act was challenged on several grounds. One of the grounds was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter 4 of Part V and Article 226 in Chapter 5 of Part VI, and so. they required ratification under clause (b) of the proviso to Article 368. This contention was rejected by this Court. Patanjah Sastri, J., as he then was, who spoke for the unanimous Court, observed that the said Articles 'did not either in terms or in effect seek to make any change in Art. 226 or in Articles 132 and 136', and he added that it was not correct to say that the powers of the High Courts under Article 226 to issue writs for the enforcement of any of the rights conferred by Part III or of this Court' under Articles 132 and 136 to entertain appeals from orders issuing or-refusing to issue such writs were in any way affected. In the opinion of the Court, the said powers remained just the same as they were before; only a certain class of cases had been excluded from the purview of Part III. The fact that the Courts could not exercise their powers in respect of the said class of cases, did not show that the powers of the Courts were curtailed in any way or to any extent. It only meant that certain area of cases in which the said powers could have been exercised, had been withdrawn. Similarly, the argument that the amendments were invalid because they related to legislation in respect of land, was also rejected on the ground that the impugned Articles 31A and 31B were essentially amendments of the Constitution which Parliament alone had the power to make. "

198. Two years later, the views expressed by the Indian Supreme Court in Shankari Prasad and Sajjan Singh's case were departed in Golak Nath v. State of Punjab (AIR 1976 SC 1643). Golak Nath's case was heard by a Bench of 11 learned Judges of the Indian Supreme Court and by a majority of 6 to 5 overturned the ratio decidendi in Shankari Prasad and Sajan Singh's cases, as under:-

199. "53. The aforesaid discussion leads to the following results:-

200. The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is 'law' within the 'meaning of Article 13 of tile Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

(4) On the application of the doctrine of 'prospective overruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962 as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Article 13, 14 or 31 of the Constitution."

201. To get over the effect of the judgment of Indian Supreme Court in Golak Nath's case, the Indian Parliament amended Article 368 of Indian Constitution (the amended Article 368 is already reproduced earlier) through Constitution (24th Amendment) Act, 1971. The amended Article 368 vested the Indian Parliament with specific power to amend any provision of the Constitution including those relating to Fundamental Rights and further made Article 13 of the Indian Constitution inapplicable to an amendment of Constitution under Article 368. A special Bench of Supreme Court of India consisting of 13 learned Judges in the case of Kesavananda v. State of Kerala (AIR 1973 SC 1461) unanimously upheld the validity of Constitution (24th Amendment) Act. The learned Bench in Kesavananda's case further, by a majority of 9 to 4, held as follows:-

202. "The view by the majority in these writ petitions is as follows:-

(1) Golak Nath's case is overruled;

(2) Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;

(3) The Constitution (Twenty-Fourth Amendment) Act, 1971 is valid;

(4) Sections 2(a) and 2(b) of the Constitution (Twenty-Fifth Amendment) Act, 1971 is valid;

(5) The first part of section 3 of the Constitution (Twenty-Fifth) Amendment Act, 1971 is valid. The second part, namely, 'and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy' is invalid;

(6) The Constitution (Twenty-Ninth Amendment) Act, 1971 is valid.

203. The Constitution Bench will determine the validity of the Constitution (Twenty-Sixth Amendment) Act. 1971 (relating to abolition of privy purses and privileges of princes) in accordance with law."

204. The decision of Indian Supreme Court in Kesavananda Bharatia's case has so far held the field as the Indian Supreme Court in all its later decisions followed the ratio decidendi of Kesavananda's case. It will, therefore, be appropriate to examine the decision in Kesavananda's case in some detail.

205. In Shankari Prasad and Sajjan Singh cases, the Indian Supreme Court held that power to amend the Constitution was not an ordinary legislative power but a constituent power and, therefore, in exercise of this legislative power under Article 368 of the Indian Constitution, the Indian Parliament was authorized to amend any part of the Constitution of India including the provisions relating to fundamental rights contained in Part III of the Constitution. In Golak Nath's case, the Indian Supreme Court found that the power to amend the Constitution conferred on Indian Parliament under Article 368 of Indian Constitution was an ordinary legislative power which could be exercised subject to the constraint mentioned in Article 13(2) of Indian Constitution. Therefore, while exercising the power to amend the Constitution, the Indian Parliament could not take away, abridge or curtail the effect of the fundamental rights contained in Part III of the Constitution. The Indian Supreme Court further found that Fundamental Rights mentioned in Part III of the Constitution were given a transcendent position in the Scheme of Indian Constitution and therefore, they were beyond the reach of the Parliament. The judgment of Indian Supreme Court in Kesavananda's case, if I may say so with respect, successfully reconciled the two conflicting views expressed by that Court in Shankar Prasad's case which was followed in Sajjan Singh's, and the Golak Nath's cases. The Supreme Court of India in Kesavananda's case while examining the validity of Constitution (24th Amendment) Act, held that the amendment introduced in Article 368 of the Constitution by 24th Amendment, did not enlarge the power of the Parliament but only stated explicitly what was implicit in the language of Article 368 before amendment. The power to amend the Constitution conferred on the Parliament by Article 368 of the Indian Constitution was held to include the power to amend every part of the Indian Constitution including the Fundamental Rights contained in Part III of the Indian Constitution provided the amendment did not change the basic structure and foundation of the Constitution and the amendment in fundamental rights did not amount to totally destroying or abrogating them. To the extent of giving effect to the Directive Principles of State Policy, contained in Part IV of the Indian Constitution, the Supreme Court of India in Kesavananda's case held that the fundamental rights could be abridged or curtailed short of their abrogation. The basic structure of Indian Constitution was described in Kesavananda's case by the learned Judges constituting the Bench as follows:-

206. Per M.Sikri. C.J.

(i) Supremacy of Constitution;

(ii) Republic and Democratic form of Government;

(iii) Secular Character of the Constitution;

(iv) Separation of power between the Legislature, the Executive and the Judiciary;

(v) Federal Character of the Constitution.

207. Shelat and Grover, JJ.

208. Added to the above, two more features:--

(i) the dignity of the individual secured by various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV, and

(ii) the Unity and Integrity of the nation,

209. Hedge and Mukheriea, JJ.

210. Referred to 'basic elements of the fundamental features of the Constitution.

211. Reddy, J.

212. Referred to fundamental rights, essential element or structure of the Constitution or the identity of the Constitution.

213. Following the ratio decidendi of Kesavananda's case the Supreme Court of India in the case of Sint. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299) by a majority of 3 to 2 struck down clause (4) of Article 329A on the ground that it violated the principle of free and fair election which was an essential postulate of democracy and in turn found to be a structure of Indian Constitution. The decision in Sint. Indira Nehru Gandhi's case, therefore, added the concept of free and fair election as one more attribute to the basic structure of Indian Constitution.

214. In Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789) the validity of sections 4 and 55 of Constitution of India (42nd Amendment) Act, 1976 came up for consideration before a Bench of 5 learned Judges of Supreme Court of India. By section 4 (ibid), Article 31C of Indian Constitution was amended and its scope was enlarged. Section 55 (ibid), introduced clauses (4) and (5) in Article 368 of the Indian Constitution which conferred upon Indian Parliament a vast and undefined power to amend the Constitution. In so far section 55 of the Constitution (42nd Amendment) Act, 1976, which added clauses (4) and (5) in Article 368 of the Indian Constitution, was concerned, all the five learned Judges of the Bench held that these clauses were beyond the amending power of Parliament as it removed all limitations on the power of Parliament to amend the Constitution and therefore, it was invalid. However, section 4 of the Constitution (42nd Amendment) Act, 1976, which enlarged the scope of Article 31C of the Indian Constitution was struck down by the Indian Supreme Court by a majority of 4 to 1 on the ground that the amendment had the effect of enlarging the scope of Article 31C to such an extent that it virtually abrogated Articles 14 and 19 contained in Part III of the Constitution. Article 31C of the Indian Constitution was, accordingly, held valid only to the extent it was upheld by the Supreme Court in Kesavananda Bhartia's case. The comparative importance . of provisions relating to Fundamental Rights and the Directive Principles of Policy contained in the Indian Constitution were examined by the Indian Supreme Court, as follows:-

215. "45. The main controversy in these petitions centres round the question whether the directive principles of State Policy contained in Part IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every other consideration and all other contentions are in the nature of by-products of that central theme of the case. The competing claims of Parts III and IV constitute. the pivotal point of the case because, Article 31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19. The 42nd Amendment by its section 4, thus, subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles.

46. The question of questions is whether in view of the majority decision in Kesavananda Bharati (AIR 1973 SC 1461) it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy, are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two Articles are not a part of the basic structure of the Constitution that they can be allowed to be abrogated by a Constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament. "

216. The decision in Minerva Mill's case added four more features namely, (i) limited power of the Parliament to amend the Constitution; (ii) the harmony and balance between Fundamental Rights and Directive Principles of Policy; (iii) Fundamental Rights in certain cases, and (iv) power of judicial review in certain cases as the basic structure of Indian Constitution.

217. The last case in series, which I would like to mention here arose out of the Constitution (52nd Amendment) Act which added following clause (2) in Article 102 and a new Schedule 10 in the Indian Constitution:--

218. '[(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]"

"TENTH SCHEDULE

219. Interorgagon ---In this Schedule, unless the context otherwise,--

(a) 'House' means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;

(b) ' Legislature party' in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 3 or, as the case may be, paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;

(c) ' original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;

(d) 'paragraph' means a paragraph of this Schedule.

2. Disoualification on Ground of defection ---(I) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the house,-

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

220. Explanation. ‑‑‑For the purposes of this sub‑paragraph,‑‑

(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;

(b) a nominated member of a House shall, ‑‑‑

(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188.

(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

(3) A nominated member of a House shall be disqualified for being a member of the House if the joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty‑Second Amendment) Act, 1985, is a member of a house (whether elected or nominated as such) shall,‑‑

(1) where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub‑paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;

(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub‑paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub‑paragraph (3) of this paragraph.

3. Disqualification on ‑ground of defection not to apply in case of split. ‑‑ Where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of the split in his original Political Party and such group consists of not less than one‑third of the members of such Legislature party,‑‑‑

(a) he shall not be disqualified under sub‑paragraph (1) of paragraph 2 on the ground‑‑‑

(i) that he has voluntarily given up his membership of his original political party, or

(ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorized by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and

(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph.

4. Disqualification on ground of defection not to apply in case of merger. ‑‑‑(1) A member of a House shall not be disqualified under sub paragraph (1) of paragraph 2, where his original political party merges with another political party and he claims that he and any other members of his original political party‑‑‑

(a) have become members of such other political party, or as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new `political party or group, as the case may be, shall be deemed to be the political party , to which he belongs for the purposes of sub paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub‑paragraph.

(2) For the purposes of sub‑paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the Legislature party concerned have agreed to such merger.

221. 5 Exemption. ---Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,--

(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or

(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.

222. 6 Decision of questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such house and his decision shall be final:

223. Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning or Article 212.

224. 7 Bar of iurisdiction of Courts.---Notwithstanding anything in, this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.

225. 8 Rules.---(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make Rules for giving effect to the provisions of the Schedule, and in particular, and without prejudice to the generality of the foregoing, such Rules may provide for-

(a) the maintenance of registers or other records as to the political parties if any, to which different members of the House belong;

(b) the report which the leader of a Legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;

(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and

(d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question.

(2) The Rules made by the Chairman or the Speaker of a House under subparagraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved they shall be of no effect.

(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105 or, as the case may be Article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the Rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.]"

226. The validity of the above Schedule 10 added in the Indian Constitution was challenged before the Supreme Court of India in the case reported as Kihota Holohon v. Zachilhu (AIR 1993 SC 412) on the ground that it violated the rights and immunities granted to a member under Article 105(2) of the Indian Constitution besides curtailing the right of freedom of speech of such member. The Supreme Court of India with a majority of 3 to 1 repelled the contention, as follows:-

227. "

18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides:

228. "105. Powers, privileges etc., of the Houses of Parliament and of the Members and committees thereof.---(1)... ... ... ... ... ... ... .. ... ...

(2) No Member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings."

229. The freedom of speech of a Member is not an absolute freedom. That part, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any 'Court' for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing.

230. Secondly, on the nature and character of electoral rights this Court in Jyoti Basu v. Debi Ghosal (1982) 3 SCR 318: (AIR 1982 SC 983) observed:--

231. 'A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So, is the right to be elected. So, is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation'.

232. (Page 326 of SCR): at p. 986 of AIR)

233. Democracy is a basic feature of the Constitution. Whether any particular brand or system of Government by itself has this attribute of a basic feature, as long as the essential characteristics that entitle a system of Government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So, is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-Article (2) of Article 105 of the Constitution are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 105(2) as urged by Shri Sharma.

234. 19 Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have and may give expression to, differences of opinion on a matter. Not un often the views expressed by the Members in the House .have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.

235. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerned action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which in the ultimate analysis, is its course of sustenance---nay, indeed, its very survival., Intra-party debates are of course a different thing Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on 'Parliament, Functions, Practice and Procedure' (1989 Edn., page 199) say:

236. "Loyalty to nartv is the norm, beiniz based on shared beliefs. A divided Party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasions will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party disloyalty. To Join with others in abstention or voting with the other side smacks of conspiracy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy." (Emphasis supplied).

237. Clause (b) of sub-para. (1) of-paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to 'any directions' issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstains from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression 'any direction' in clause (b) of paragraph 2(1)--- whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated but the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately.

238. From the preceding discussion, it emerges that finally the Supreme Court both in India and Pakistan have taken the view that power to amend the Constitution vesting in the ,Parliament does not include power to repeal or abrogate the Constitution. The Indian Supreme Court in the beginning in Shankar Parasad and Sajjan Sing's cases, took the view that power exercised by the Parliament to amend the Constitution was unlimited and it is a constituent power and therefore, it could even alter or amend the provisions relating to Fundamental Rights contained in the Indian Constitution. The decision of Indian Supreme Court in Golak Nath's case in 1967 reversed this view and held that Fundamental Rights being the essential feature of Indian Constitution were beyond the reach of the power of the Parliament to amend the Constitution, which was held to be an ordinary legislative power of Parliament. The Indian Supreme Court in Golk Nath's case further held that power to amend the Constitution is not derived by the Indian Parliament under Article 368, which only prescribed the procedure for amendment, but such power is to be found in Articles 245, 246 and 248 read with Schedule 7, List 1, Item 97 of the Indian Constitution. To overcome the effect of the decision of Supreme Court in Golak Nath's case, the Indian Parliament in 1971 amended Article 368 of the Indian Constitution and provided that amending power of the Parliament included addition, variation or repeal of any provision of the Constitution and further declared that Article 13 of the Indian Constitution would not apply to any amendment made under Article 368 (ibid). This amendment was challenged before the Indian Supreme Court in Kesavananda Bhartia's case, where it was held to be validly made. The decision of Indian Supreme Court in Kesavananda's case for the first time pointed out the basic features of the Indian Constitution and held that though the Parliament in India has power under Article 368 (ibid), to amend any part of the Indian Constitution but in the process of amendment, it cannot change or destroy the basic features of the Indian Constitution. Article 31 C included in the Indian Constitution by this amendment which protected certain legislation s from being challenged on the ground of repugnancy to fundamental rights, were also held valid on the ground that fundamental rights though an essential feature of Indian Constitution, could be amended provided the amendment was short of their abrogation or repeal. The view expressed by Indian Supreme Court in Kesavananada's case has been followed in all its subsequent decisions so far. This Court, however, consistently took the view until the decision in Achakzai's case (supra), that the Courts being the creature of the Constitution, it could not declare any part of the Constitution invalid. In Achakzai's case, this Court, however, for the first time referred to the basic structure of the Constitution and observed that the power to amend the Constitution vesting in the Parliament is to be examined within the bounds of these basic structures.

239. As a result of the above discussion, I hold that the Parliament in Pakistan exercises ordinary legislative power as well as constituent power. The Parliament in exercise of its ordinary legislative power approves or passes Acts and Legislations in respect of items enumerated in the two legislative lists contained in the Fourth Schedule of the Constitution, while in exercise of its constituent power it can amend the Constitution. The legislative power of the Parliament is inferior to its constituent power, therefore, Parliament exercises its legislative power subject to the constraints mentioned in Article 8 of the Constitution. Therefore, an Enactment passed by the Parliament in exercise of its legislative power can be struck down on grdund of its inconsistency with the provision contained in Chapter 1 of Part II of the Constitution. However, the constituent power of the Parliament, which is at a higher pedestal, is not subject to these constraints. The power to amend the Constitution conferred on the Parliament under Articles 238 and 239 of the Constitution is in the nature of a constituent power of the Parliament. Therefore, a Bill passed by the Parliament in exercise of its power under Articles 238 and 239 of the Constitution amending the Constitution though described as an "Act" would not be subject to the same limitations as are applicable to an "Act" passed by the Parliament in exercise of its ordinary legislative power. As soon as an Act amending the Constitution is passed in accordance with the provisions of Article 239 of the Constitution and the Act receives the assent of the President as provided in the Constitution, the amendment becomes an integral part of the Constitution. It is a wellsettld rule of interpretation that all provisions in the Constitution have equal status unless the Constitution itself provides that some of its provisions will have precedence or primacy over the other. Therefore, an amended or a new provision inserted in the Constitution as a result of the, process of amendment prescribed in the Constitution, is not a "law" within the contemplation of Article 8 of the Constitution and as such. the validity of the amended or newly-introduced provision in the Constitution cannot be tested on the touchstone of Fundamental Rights contained in Part II, Chapter 1-of the Constitution. It is a wellsettled law that the validity of a Constitutional provision cannot be tested on the basis of another provision in the Constitution both being equal in status. The doctrine of ultra vires necessarily implies that one of the two competing provisions or legislations is inferior in status to the other and the validity of the inferior provision or legislation is tested on the touchstone of the superior one. There is nothing in the language of Article 8 to indicate that the Framers of Constitution gave primacy to Article 8 of the Constitution over any other provision of the Constitution. In fact Part II of the Constitution consists of Chapters 1 and 2 Chapter 1 contains Fundamental Rights while Chapter No.2 contains equally important provisions described as Principles of Policy. The State through enforcement of provisions contained in Chapter 2, Part II of the Constitution is committed to create an egalitarian Society based on the concept of Islamic Welfare State (Article 31.), promotion of local Government institution (Article 32), full participation of women in national life (Article 34), protection of the institutions of marriage, the family, the mother and child (Article 35), Protection of rights of -minorities (Article 36), Promotion of social justice, economic well being of people and eradication of social evils (Articles 37 and 38), creating conditions conducive for participation of people from all parts of country in Armed Forces of Pakistan (Article 39) and strengthening of the fraternal bonds with all the Muslim countries of the world and promotion of international peace (Article 40).

240. No doubt, the Fundamental Rights mentioned in Chapter 1, Part II of the Constitution enjoy a special place in the Constitution in the sense that the Legislature is prohibited to pass a law which is contrary to the provisions of Fundamental Rights and if such a law is passed by the Parliament in spite of the prohibition, the law to the extent of inconsistency is declared void. This may justify the inference that Fundamental Rights are one of the basic features of the Constitution. However, this does not mean that the provisions contained in Chapter 1, Part II of the Constitution have been given primacy or precedence over any other provision of the Constitution. As stated above, the Principles of Policy contained in Chapter 2, Part II are equally important provisions which lay down the very object and purpose of establishment of the State. These provisions may well be described as foundational principles of the Constitution. The achievements of the ideals set forth in Chapter 2 of Part II of the Constitution in my opinion, is the cherished goal of every political party voted to power by the people. To achieve these ideals, necessity may arise for legislation in the fields mentioned in Chapter 2, Part II of the Constitution and specially the matters relating to promotion of social and economic well being of people belonging to less fortunate and deprived class of the Society: Such legislation may to some extent, has the effect of curtailing or abridging the fundamental rights guaranteed under the Constitution, arid correspondingly necessitate appropriate amendments in the provisions contained in Chapter 1 of Part II of the

241. Constitution. The abridgement or curtailment of the Fundamental Rights through amendment of Constitution, in such circumstances, if it is short of abrogating or taking away the fundamental rights, in my view, cannot be declared invalid. This, however, would not mean that the power to amend the Constitution vesting in the Parliament under Article 239 of the Constitution is unlimited and unbridled.

242. The learned Attorney-General and Mr.S.S.Pirzada, the learned senior counsel for the Federation, have contended that in so far this Court is concerned, it consistently held the view that the Courts cannot strike down a Constitutional provision as invalid in exercise of its power of judicial review. Mr.Pirzada further argued that the validity of a Constitutional Amendment can be examined only with reference to the procedure prescribed for amendment in the Constitution. Mr. Pirzada relied on the pronouncements of this Court in State v. Ziaur Rehman, Federation of Pakistan v. Saeed Ahmad, Islamic Republic of Pakistan v. Wali Khan, Federation of Pakistan v. United Sugar Mills Ltd., Fauji Foundation v. Shamimur Rehman, Sharf Faradi v. Federation of Pakistan and Mahmood Khan Achakzai v.' Federation of Pakistan (supra), in support of his contention.

243. The decision in Ziaur Rehman's case was delivered by this Court on 8-1-1973 when the Constitution had not come into force. In Saeed Ahmad's case this Court though gave its judgment on a date when the Constitution had come into force, but it considered the amendment of Article 281 of the Interim Constitution of 1972 by the President in exercise of his power under Article 279(1)(c) of the Interim Constitution. In Wali Khan's case this Court after referring to the decision of Indian Supreme Court in Kesvananda's case, which propounded the theory of basic structure of Constitution, refused to go into the controversy any further and reiterated its earlier view expressed in Ziaur-Rehman's case, but one of the reasons stated by the Court for not examining this aspect of the case any further was, that the amendment made in Article 17 of the Constitution in 1974 neither amounted to total abrogation of the right to form a political party nor in any manner an unreasonable restriction of such a right. The observations of this Court in United Sugar Mills Ltd.'s case will show that the two amendments of Constitution in that case, were not questioned for want of competency or any other formal defect. The decision in Fauji Foundation's case related to the question of legislative mala fides. Sharaf Faradi's case did not involve any amendment of the Constitution. Mahmood Khan Achakzai's case, was, therefore, the first case in which the amendment made in the Constitution through the Constitution (Eighth Amendment) Act XVIII of 1985 was examined at some length. The Bench in Mahmood Khan Achakzai's case consisted of seven learned Judges of this Court. The short order which was signed by all the learned seven learned Judges of the Bench, shows that the question relating to basic structure of the Constitution was not answered authoritatively and finally as it was considered to be academic in nature but salient features of the Constitution reflected in Article 2A were pointed out as Federalism and Parliamentary form of Government blended with Islamic provisions.

244. In detailed reasons recorded in support of the short order in Achakzai's case which reflected the majority opinion in the case, Sajjad Ali Shah, C.J. (as he then was) however, observed that after incorporation of Article 2A in the Constitution, the salient and basic features of the Constitution, namely; federalism, Parliamentary democracy and Islamic provisions cannot be touched with by the Parliament while amending the Constitution. Saleem Akhtar, J. another learned Judge of the Bench in Achakzai's case who recorded separate opinion in support of the short order and which also formed part of the majority view in that case, though did not accept the basic structure theory of the Constitution and referred to the views of this Court in earlier cases as realistic but in the final analysis also observed as follows:--

245. "However there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms the Constitutional understandings. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power to the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provisions of Islam. Nor can it convert democratic form in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution. "

246. Apart from the reasons given in the majority opinion in Achakzai's case in support of the conclusion that power of the Parliament to amend the Constitution did extend to change or destroy the basic and salient features of the Constitution, I 'am of the view that the political parties take part in the process of election on the basis of their election manifesto or the programme given out by them during election campaign. A political party. elected to power on the basis of its election manifesto or the programme given out by it to the electorate during the election campaign has the mandate of the political sovereign only to give effect to those programmes and promises which it committed to the electorates in the election manifesto or in the form of promises given out during the election compaign. Therefore, a political party voted to power, if during its election campaign, or in its election manifesto, did not sought mandate from the electorate to bring about changes in the essential and basic features of the Constitution, it would lack necessary authority to bring about those changes in the Constitution by moving amendments in the Parliament I may, however, state that no attempt should be made to define and lay down with precision the basic and salient features of the Constitution. Any attempt in this regard in my opinion is more likely to confuse the issue than to define it. Reference in this behalf may be made to Kesavananda's case where the Supreme Court of India attempted to define the basic structure of Indian Constitution, but the learned Judges failed to evolve a consensus definition of basic structure of Indian Constitution, and as such each learned Judge of the Bench forming the majority in the case provided the definition of basic structure of Indian Constitution, according to his own perception. I am, therefore, of the view that as and when any amendment in the Constitution is challenged on the ground that it affected or altered any of the basic feature of the Constitution, such feature of the Constitution may be examined individually to determine its place in the Scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country's governance, as observed by Chandrachud, J. in Kesavananda's case.

247. Having laid down the scope of amendment in the Constitution by the Parliament in exercise of its power under Article 239 of the Constitution, I now proceed to determine whether Article 63A inserted by the 14th Amendment in the Constitution violated any of the essential or basic feature of the Constitution. Article 63A reads as follows:--

248. "63A. Disqualification on ground of defection, etc.---(1) If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorized in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

249. Explanation.---A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party; or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing--

(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or

(c) abstains from voting in the House against party policy in relation to any Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the Party, whose decision thereon shall be final, in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring the seat vacant and amend it under the schedule of the bye-election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article:-

(a) 'House' means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) 'Presiding Officer' means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article. "

250. The contentions of the learned counsel for the petitioners have been reproduced earlier, and therefore, it is not necessary to repeat them here.

251. The first contention is that clause (a) of the Explanation to Article 63A(1) is violative of Articles 19 and 66 of the Constitution. Article 19 deals with the freedom of speech of citizens generally while Article 66 deals with the privileges of the members of Parliament. The right of freedom of speech and expression guaranteed under Article 19 of the Constitution is not unfettered and unbridled. It is subject to reasonable restrictions which may be imposed under the taw in the interest of the glory of Islam, the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign State, public order, decency or morality in relation to contempt of Court, Commission of or incitement to an offence. I have already stated the background leading to the insertion of Article 63A in the Constitution. It is not disputed that defection by the elected members of the Parliament is a vice which needed to be curbed. This Court in number of its judgments described the Act of defection by elected members of the Assemblies as an immoral practice. The defection by members of political parties after their election as members of Assemblies led to the dissolution of more than one elected Assemblies in the past. There was strong condemnation by the public of the immoral practice of floor-crossing and defection by elected representatives of political parties after their election on party ticket as members of Assemblies. There was consensus amongst the political parties to eradicate the vice from the body politics of the country to restore the confidence of people in the political process. In this back set stringent legislative measures were needed to curb this immoral practice to keep the political process pure and clean. Defection on political parlance, as stated in Sabir Shah's case, means an act of political opportunism to obtain immoral gains and worldly advantages by exploiting one's representative and political status. However, while enacting laws or introducing amendments in the Constitution with the object of eradicating the vice of defection, the Legislature was not bound to provide the same meaning to the word 'defection' as given in dictionary or it is understood in common parlance. The Legislature, therefore, while introducing Article 63A in the Constitution could give its own meaning to the word 'defection' provided it bore reasonable nexus to meaning given in the dictionary or as it is understood commonly. The definition of 'defection' provided under the Explanation appended to Article 63A, in my opinion, bears reasonable nexus to its dictionary meaning and as this word is understood in common parlance.

252. Keeping in view the background of insertion of Article 63A in the Constitution, I have not been able to discover anything objectionable in the meaning assigned to word 'defection' in the impugned legislation. The impugned clause (a) describes. the breach of party discipline which is explained as breach of Constitution, code of conduct and declared policies of the political party amongst others, as the act of defection. It cannot be denied that a political party functions on the shared belief of its members and their commitments to uphold its Constitution and declared policies. A person when joins a political party and seeks election to the Assembly on the ticket of that party holds out to the electorate that he is bound by the discipline, code of conduct and declared policies of the party. After his election to the Assembly, if he defies the party constitution or the code of conduct or the declared policies of the party, whether within the Assembly or outside the Assembly he looses his representative character and the mandate to represent the people who elected him on the basis of his above representation. With utmost respect, I have not been able to persuade myself to agree with the view that only such breach of Constitution, code of conduct and declared policies of the political party by its elected members, which takes place within the four walls of the Assembly, would be covered the impugned clause (a), which is to be read together with clauses (b) and (c) of the Explanation to Article 63A of the Constitution. In my humble view, clauses (a) to (c) of the Explanation to Article 63A of the Constitution are independent of each other. While clause (a) covers the acts of an elected member of a political party both inside and outside the House, clauses (b) and (c) relate to his action inside the House only. The act of defiance by an elected member of a political party of the Constitution, code of conduct and declared policies of the party outside the Assembly is as much damaging to the image and working of that party as his conduct inside the Assembly. A divided party is looked upon with suspicion by the people and is likely to loose the confidence of its electorate. A member of the political party who after his election to the Assembly on the ticket of that party, publicly denounces the Constitution, code of conduct or declared policy of the political party to which he belongs, cannot claim right to represent that party in the Assembly on any moral, ethical or legal ground. Therefore, in my opinion, no exception could be taken to the provision of clause (a) of the Explanation to Article 63A of the Constitution. The next objection of Mr. Iftikhar Gilani, to the validity of clause (a) to the Explanation is that this clause curtailed the right of speech of such member. A person seeking election on the ticket of a political party agrees to hold fast to the Constitution, code of conduct and declared policies of that party. He cannot claim right to denounce and defy the policies and code of conduct of that party after his election as member of the Assembly on the ticket of that party on any known principle of law or morality. Clause (a) of the Explanation to Article 63A does not take away that right of honest dissent of an elected member of the political party. However, the right of honest dissent cannot be held to include defiance and denunciation of the discipline, code of conduct and declared policies of the party. If an elected member of a political party feels so strongly that he cannot stand by the policies of his party on account of his convictions on those issues, %he may shed his representative character which he acquired by getting elected on the ticket of that party by resigning from his seat and seek a fresh mandate from the electorate on the basis of his conviction. I, therefore, find no merit in the contention of Mr. Iftikahr Gilani that, clause (a) of the Explanation to Article 63A has the effect of taking away the freedom of speech of an elected member of a political party guaranteed under Article 19 of the Constitution. Similarly, I find no force in the contention of Mr. Gilani that the provision of clause (a) (ibid) has the effect of taking away the privileges of the elected member of a political party conferred by Article 66 of the Constitution. Article 66 guarantees freedom of speech to members inside the Parliament and provides immunity to the members against legal proceedings in any Court for anything said or any vote given by him in the Parliament. Firstly, the right of freedom of speech mentioned in Article 66 is not an absolute one. Secondly; clause (a).of the Explanation to Article 63A does not in any manner take away the immunity of the members from being answerable for anything said or any vote given by him in the Parliament, before any Court.

253. I now take up the objections of Dr.Abdul Basit the learned counsel for the petitioner in Constitution Petition No.24 of 1997 to the validity of Article 63A of the Constitution. The learned counsel contended that Article 63A in its entirey is violative of the basic structure of the Constitution. According to learned counsel Article 63A violated the concept of representative Government, independence of Judiciary and Islamic features of the Constitution. The learned counsel argued that clause (a) of the Explanation to Article 63A of the Constitution provides that an elected member of the Assembly belonging to a political party if acts against the Constitution of the party, or violates the code of conduct or declared policies of the party, he looses his seat in the Assembly upon a decision given against him by the head of the party. Similarly, if his case is covered by clauses (b) and (c) of the Explanation, he looses his seat upon a declaration by the Head of the party that he has defected. According to learned counsel, these provisions not only violated the concept of representative Government but are also against the concept of polity in Islam, as the member concerned in view of the constraints put by Article 63A can neither act independently nor he is expected to act according to his conscience. The learned counsel further contended that the concept of representative Government under the Constitution, does not contemplate existence of political parties and therefore, the Head of a political party cannot arrogate himself the power to deprive an elected representative of his character as an elected member of the Assembly on the ground that he has been guilty of violating the Constitution, code of conduct or declared policy of the political party on whose ticket he has been elected. The contention of the learned counsel has not impressed me. The system of Government under the Constitution in my opinion is Parliamentary democracy based on party system. This view finds support from the decision of this Court in the case of Miss Benazir Bhutto and others v. Federation of Pakistan (PLD 1988 SC 416). The view expressed in Miss Benazir Bhutto's case, supra, was quoted with approval in the case of Federation of Pakistan v. Saifullah Khan (PLD 1989 SC 166). In fact, in the last-mentioned case, this Court refused to pass an order for restoration of the Assemblies in spite of a finding that their dismissal by the President, was unlawful; on one of the grounds that these Assemblies were brought into existence as a result of party less election which were not in consonance with the Scheme of the Constitution. I, therefore, do not agree with the contention of Dr. Abdul Basit that the representative system of Government conceived under the Constitution does not contemplate existence of political parties. The next objection to the validity of Article 63A of the Constitution raised by Dr. Abdul Basit is, that the newly-inserted Article 63A of the Constitution has the effect of taking away the right of an elected representative to express himself freely and according to his conscience which is not only against the guarantees provided in the Constitution but also against the concept of policy under Islam. I have already dealt with in the first part of this argument while considering the effect of clause (a) of the Explanation appended to Article 63A of the Constitution on the right of an elected member of a political party with reference to Articles 19 and 66 of the Constitution. In so far the contention of Mr. Abdul Basit that restraints provided under Article 63A of the Constitution are against the concept of polity in Islam, this point too was dealt with by me in the case of Sabir Shah v. Shad Muhammad Khan (supra), and relevant portion dealing with this aspect of the case has already been reproduced in this judgment earlier and I still hold the same view. The last contention raised by Dr.Abdul Basit in support of his petition is that clause (6) of Article 63A of the Constitution violates the concept of independence of Judiciary as the jurisdiction of the Supreme Court and High Court has been barred to entertain any proceedings or to exercise any jurisdiction or to make any order in relation to the action taken under Article 63A of the Constitution. This contention in my opinion has equally no force. Clause (6) of Article 63A of the Constitution has not introduced any new concept. Article 66, which is also in Chapter 2 of Part III, of the Constitution already provides immunity to the members of the Parliament in respect of anything done or any vote given by him in the Parliament against any proceedings before any Court. Similarly, Article 69 of the Constitution in the same Chapter, makes the officer or member of the Parliament in whom powers are vested by or under the Constitution for regulating procedure or conduct of business or maintaining the order in the Parliament immune from the jurisdiction of the Court in respect of exercise of any such power. 1, therefore, find nothing new in clause (6) of Article 63A (supra) in providing the exclusion of the jurisdiction of the Supreme Court and High Court from entertaining any legal proceedings in respect of action taken under this Article. I may, however, clarify that the bar mentioned in the said Article, does not completely take away the jurisdiction of the Supreme Court or High Court in respect of actions taken under Article 63A (ibid). Despite of the bar provided in clause (6) of Article 63A the jurisdiction of High Court as well as this Court under Article 199 of the Constitution will be available in respect of the actions which are coram non judice, mala fide or are without jurisdiction. I, therefore, find no merit in the contention of the learned counsel for the petitioner in Constitution Petition No.24 of 1997 that Article 63A of the Constitution violated any of the basic features of the Constitution. Subject to what I have stated above, I agree with the conclusion of my Lord, the learned Chief Justice that Article 63A of the Constitution is a valid Constitutional provision which takes effect accordingly. The two Constitutional petitions are disposed in terms of the above order.

254. (Sd.)

255. Saiduzzaman Siddiqui, J

256. IRSHAD HASAN KHAN, J.---1 have had the privilege of going through the illuminous judgment proposed to be delivered by the learned Chief Justice. I respectfully agree that the impugned Constitutional Amendment is not violative of any provision of the Constitution. However, in view of the importance of the case, I am adding the following note.

2. These petitions, under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, seek to challenge disqualification on the ground of defection, etc. of Members of the Parliament and the Provincial Assemblies under Article 63A, inserted by the Constitution (Fourteenth Amendment) Act, 1997, which reads thus:--

257. CONSTITUTION (FOURTEENTH AMENDMENT)

258. ACT, 1997 (ACT XXIV OF 1997)

259. No. F.22(104)97-Legis.---The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 3rd July, 1997 and is hereby published for general information:--

260. An Act further to amend the Constitution of the Islamic Republic of Pakistan. ---)Whereas it is expedient further to amend the Constitution of the Islamic Republic of Pakistan in order to prevent instability in relation to the formation or functioning of Government;

261. It is hereby enacted as follows:--

262. Short title and commencement. ---(I) This Act may be called the Constitution (Fourteenth Amendment) Act, 1997.

(2) It shall come into force at once.

263. 2 Addition of new Article 63A in the Constitution. ---In the Constitution of the Islamic Republic of Pakistan after Article 63 the following new Article shall be inserted namely:--

264. 63A. Disqualification on ground of defection, etc.---(1) If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the political party, or such other person as may be authorized in this behalf by the Head of the political party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

265. Explanation.---A member of a House shall be deemed to defect from a political party if he, having been elected as such, as candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election by means of a declaration in writing--

(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or

(c) abstains from voting in the House against party policy in relation to a Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the party, shall decide the matter, after giving an opportunity of a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the party, whose decision thereon shall be final. In cases covered by the Explanation to clause (1), sub-clause (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring the seat vacant and announcing the schedule of the bye-election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article--

(a) 'House' means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) 'Presiding Officer'means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article. "

3. Syed Iftikhar Hussain Gilani argued that clause (I), sub-clause (a) of Article 63A is violative of Articles 17, 19, 25, 63, 66 and 95 of the Constitution, inasmuch as, freedom of speech, as guaranteed by Article 66 of the Constitution, is an essential feature of a free and independent Parliament and no Member is liable to any proceedings in any Court in respect of anything said in the Parliament. He however, submitted that he was not challenging Article 63A in its entirety but only sub-clause (a) to the Explanation thereof. He submitted that this provision has conferred arbitrary powers to the Party Head, inasmuch as, under clause (2) of Article 63A (ibid), where action is proposed to be taken under the Explanation to clause (1), sub-clause (a) a reference to the disciplinary committee is made by the Head of the Party and if upon any matter inquired into by the Disciplinary Committee of the party a decision is given against the Member, the aggrieved Member can file an appeal with the Head of the Party who has himself made the reference and whose decision thereon shall be final. He further submitted that Explanation to clause (1) of the Article 63A ibid deals with internal party discipline. Party discipline is effective to the point that each Member of the Government Party can nearly always be relied upon to support all Government measures. A political party may provide in its own constitution that a Member who commits a breach of party discipline would thereby forfeit his membership of the party but to provide in the Constitution that he would thereby forfeit his right to continue to be a Member of the House, would have the effect of the destruction of the guaranteed freedom of speech and expression of the citizen conferred by Article 19 of the Constitution and to abrogate the freedom of conscience of a Member of the Parliament and the Provincial Assemblies. Syed Iftikhar Hussain Gilani submitted that the impugned defection law has empowered the Party Head to strangulate his party members in the garb of checking floor-crossing. He argued that he had no objection against the provisions of the defection law except sub-clause (a) which confers arbitrary powers to a Party Head. He submitted that the complainant and the Judge was the Party Head himself which was violative of the rule of natural justice. He submitted that the scope of sub-clause (a) was so wide that a member of the Parliament could be disqualified for showing dissent inside and outside the Parliament. Reliance was placed on the following observations of Saleem Akhtar, J., in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), which read thus:-

266. "43. It is a well-recognised principle of interpretation of Constitution that if two provisions conflict with each other the Courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of Constitution guaranteeing fundamental rights, independence of Judiciary and democratic principles blended with Islamic provisions. Thus, it is the lesser right which must yield in favour of higher rights. Reference may be made to Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), Halsbury's Laws of England, 4th Edition, Vol.44, page 532 and para. 872 and Corpus Juris Secundum, Vol. 16, page 97. Ajmal Mian, J., while explaining his observation in the case of Al-Jehad Trust (PLD 1996 SC 324), relating to conflict between Article 209(7) and Article 203-C held that Article 209(7) carried higher right preserving the independence of Judiciary and should prevail over Article 203-C which negated the same. "

267. Syed Iftikhar Hussain Gilani also heavily relied on the observations of Syed Sajjad Ali Shah, C.J. (as he then was), in the case of Mahmood Khan Achakzai (supra) at page 459-H to the following effect:-

268. " ... ... ... ... ... ... ...it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution."

269. On the basis of the above observations, he argued that the Supreme Court could strike down any provision of law as violative of fundamental rights, independence of Judiciary or Islamic Injunctions. He next relied on Item No.55 of the Federal Legislative List, as contained in the Fourth Schedule of the Constitution which is to the following effect:

270. "55. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers." .

271. In view of the above Constitutional provision, he emphasised, that the Parliament was not competent to curtail the jurisdiction of the Supreme Court whereas clause (6) of impugned Article 63A of the Constitution does so, as below:-

272. "(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article."

273. Syed Iftikhar Hussain Gilani vehemently argued that the provisions of clause (6) of Article 63A are ultra vires, inasmuch as, they oust the jurisdiction of the Supreme Court to entertain any legal proceedings, exercise any jurisdiction or make any order in relation to any action under this Article.

4. Reliance was also placed on the case of Miss Benazir Bhutto v Federation of Pakistan (PLD 1988 SC 416) wherein Muhammad Haleem, C.J (as he then was), observed:-

274. "From the consideration of these cases, it is clear that the vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown, but where it is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner."

275. Mr. Gilani also heavily relied on the following observations of the minority Judges in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. (PLD 1995 SC 66), wherein Saad Saood Jan, J., (as he then was), observed at page 115:-

276. "1'4. Section 8-B, as it stands, not only provides a penalty against defection or withdrawal but also creates the forum where the penalty may be enforced. It was contended by Mr. Sharifuddin Pirzada that the prohibition against defection or withdrawal as set out in this section was an unjustifiable clog on the right of the member of an assembly to follow the dictates of his conscience and was for that reason un-Islamic; further, it violated many provisions of the Constitution, such as Article 2A, which has made the Objectives Resolution a substantive part of the Constitution. Article 4 which inter alia declares that to enjoy the protection of law is the inalienable right of citizens; Article 14, which provides protection against violation of the dignity of man; Article 18, which guarantees freedom of association and freedom of choice in political action and thought; Article 66 which assures the members of the Assembly freedom of speech and vote in the Assembly; and, Article 63 which sets out the disqualifications which the members of an Assembly must not incur and the manner as well as the forum for their enforcement. "

277. Ajmal Mian, J. (as he then was) observed vide paragraph 38 in his minority judgment:-

278. "It may be pertinent at this juncture to point out that subsection (1) of section 8-B of the Act which has been reproduced hereinabove in para. 31, does not impose any restriction or constraint on the right of a member to speak or to vote. It talks of defection or withdrawal from the political party by a member and provides that in such event the member concerned shall be disqualified from the date of such defection or withdrawal from being a member of the House for the un expired period of his term as such member unless he has been re-elected at a bye- election held after his disqualification. In other words, it does not divest the right of a disqualified member from contesting bye-election either as an independent or as a member of any other political party which he may have joined. In contrast to the above provisions, above paragraph 2 not only provides defection for the reason that a member voluntarily gives up his membership of the political party concerned but also on the ground that if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining in either case the prior permission of such political patty or where such voting or abstention has not been condoned by the political party concerned. It is, therefore, evident that the scope of paragraph 2 of the Tenth Schedule to the Indian Constitution is much wider than that of above subsection (1) of section 8-B of the Act.

39. Syed Sharifuddin Pirzada, learned counsel for the respondents, is unable to demonstrate how section 8-B of the Act is violative of Articles 2A, 4, 14, 17 and 19 of the Constitution. However, he has referred to page 124 from the book under the caption 'Reflection on Islam' by Hamoodr Rahman (former Chief Justice of Pakistan), para. 2 from Ansari's Report, the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595) and the case of Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 in support of his submission that above section 8-B of the Act is violative of Article 2A of the Constitution.

279. In the above two reports, this Court has held that Article 2A which incorporates Objectives Resolution as a part of the Constitution, cannot be treated as a provision supra-Constitutional, but is a provision at par with the other provisions of the Constitution. "

280. Saiduzzaman Siddiqui, J. in his minority opinion observed at page 235 of the report: -

281. "Section 8-B of the Act does not curtail the freedom of speech or right of vote of a member of the Parliament in any manner. Section 8-B of the Act only provides that the defection or withdrawal of a member of an Assembly from the political party after being elected on the ticket of that party renders him disqualified from being the member of the Assembly from the date of defection or withdrawal for the un expired period of his term as such member. It is, therefore, quite clear that the disqualification of a member of Assembly or Parliament under section 8-B bid arises not on account of his freedom of speech or right of vote in the Parliament but on account of his act of withdrawal or defection from the political party on which ticket he was elected as the member of the Assembly or the Parliament. Defection is a vice, is not open to any two opinions. In all Democratic Parliamentary systems, which function on the basis of political parties, the act of defection by members from his Parliamentary Party is looked upon with condemnation. It is considered as an evil which renders the functioning of a Parliamentary system a farce."

282. Saiduzzaman Siddiqui, J. further observed:-

283. " ... ... ... ...'Defection' in its concept and political parlance refers to an act of political opportunitism to obtain immoral gains and worldly advantages through exploitative approach of one's representation and political status. Such acts cannot be justified on any known principle of Islamic polity. Islam ordains the believers td stand by their promises and fulfil their commitments. "

284. My learned brother Saiduzzaman Siddiqui, J. also made extensive reference to the Verses from the Holy Qur'an in support of his opinion that section 8-B of the Political Parties Act was not violative either of Article 2A of the Constitution or the Injunctions of Islam. He observed:--

285. In Verse 91 of,(JI.:J1;,p ) God has ordained:--

286. The translation of the Verse is as follows:--

287. "91. Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after the asseveration of them, and after ye have made Allah surety over you. Lo: Allah knoweth what ye do;"

288. Similarly, in Verse No.77 of , (U 1j0: y) God has ordained as follows:--

289. "77. Lo: those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom. "

290. In Verse No. 34 of (~'~II/ IL;,Y) , the direction to faithfuls to fulfil their commitments is as follows:--

291. "%~-, vKA+*J C),A+-Jj ,).t,,

292. .and keep the covenant.

293. Lo: of the covenant it will be asked."

294. In Verse No.27 of (WU~ iii) , the commandment of God to discharge the trust is in these words:--

295. "27. O ye who believe! Betray not Allah and His Messenger, nor knowingly betray your trusts. "

296. Similarly in ' Mishkat-ul-Masabih, various sayings of Holy Prophet (peace be upon him), have been quoted as under:-

297. "Abu Hurairah reported that the Messenger of Allah said: The signs of a hypocrite are three. When he talks, he speaks falsehood; and when he promises, he breaks, and when he is entrusted, commits treachery, Agreed upon it. (Add Muslim added: Even though he keeps fasts, prays and thinks that he is a Muslim.)

151. Abdullah-b-Aamr reported that the Messenger of Allah said: Whoso has got four things in him is a true hypocrite, and whose has got a habit therefrom in him has got in him ,a habit of hypocrisy till he gives it up; when he is trusted, he is unfaithful; and when he speaks, he speaks falsehood; and when he makes promise, he proves treacherous, and when he quarrels, he commits sin--Agreed.

152. Ibn Omar reported that the Messenger of Allah said: The parable of a hypocrite is a goat roaming between two goats going once unto this and once unto that."

298. The narration of above Islamic Principles make it clear that Islam requires the believers to carry out their promises and commitments whenever made (except where such promises are made against any express Injunction of Islam), and refrain from committing the breach of any trust. A person who seeks election as a candidate of a political party on its ticket, holds out to his party and the electorate his abiding faith on the manifesto of this party. His defection from the party after election, therefore, amounts to his refusal to carry out his promise and commitment besides, constituting a breach of the trust reposed in hi.-.1 by his electorate. Such an act of defection cannot be justified on any known principle of morality muchless on any recognised Code of Islamic Polity. As pointed out in the celebrated passage in Khawaja Ahmed Tariq Rahim's case (supra), quoted earlier in this judgment, if a person after his election as a candidate of a political party finds himself unable to subscribe to the programme and policy of that party, the only honourable course for him is to renounce his representative character, which reflects his abiding faith to the programme and policies of that party, and seek a fresh mandate from his electorate on the basis of his changed loyalties. This course will be fully in accord with the principles of Islamic polity. The manifest intention behind section 8-B of the Act is to promote principle politics by rooting out corrupt practices embedded in our body politics. A legislation based on such cherished objectives cannot be described as un-Islamic or unconstitutional under Article 2A of the Constitution of 1973. 1, accordingly, hold that section 8-B of the Act is neither in conflict with Article 2A of the Constitution of 1973 nor it contravenes any express or known Injunction of Islamic."

299. Reliance was also placed on Shri Kihota Hollohon v. Mr. Zachilhu and others (AIR 1993 Supreme Court 412), wherein it was observed:-

300. "49. We may now notice one other contention as to the construction of the expression 'any direction' occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule. Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal v. Union of India (AIR 1987 Punj and Har. 263), where such a restricted sense was approved. Tewatia. J. said:--

301. "If the expression: 'any direction' is to be literally construed then it, would make the people's representative a wholly political party's representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution. Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent ..........

302. ..... the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/Parliamentary form of Government on the one hand means that apolitical party or a coalition of political parties which was been voted to power is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack of requisite support in the House would result in voting the Government out of power, which consequence necessarily follows due to well-established Constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence 'in the Government. When so interpreted the clause (b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it." (Pp.313 and 314).

303. The reasoning of the learned Judge that a wider meaning of the words ' any direction" would 'cost it its constitutionality' does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objections and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.

304. While construing paragraph 2(1) (b) it cannot be ignored that under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the Rules and standing orders regulating the Procedure of the House (Article 105(1) and Article 194(1)). The disqualification imposed by paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

305. Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. "

306. Mr. Gilani lastly relied on Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), wherein at page 419, it was observed:--

307. "It may be observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution even suo motu without having any formal petition. "

5. Dr.A.Basit, representing the Wukala Mohaz Barai Tahafaze Dastoor, submitted that the Fourteenth Amendment of the Constitution did not form part of the Constitution, inasmuch as, it violated the basic structure of the Constitution. It also excludes the judicial review of the Courts and militates against Item No.55 of the Federal Legislative List which envisages that the jurisdiction of the Supreme Court could not be curtailed rather it has to be enhanced. Reliance was placed on 1989. BD Law Decision (Special) 1, to contend that the basic features of the Constitution cannot be. altered by the amending power of the Legislature. He further submitted that amendment has taken democratic control of delinquent Party Member and the right of the people who elected him. He submitted that the amendment contemplates that the Party Manifesto has different procedures to disqualify a person. He further emphasised that the amendment deals not only with the conduct of a member inside the Parliament to discourage floor-crossing but also control his activities outside it. It gives sweeping powers to the Party Head to disqualify any elected Member which is contrary to the concept of Parliamentary democracy, where the chosen representatives of the people are deprived of their basic function of representing their electorates in the Assemblies. It confers powers of expulsion of a Member to the Party Head even in a case where the declared policy of that party may be repugnant to the Constitution.

308. He referred to Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), the Constitution of Nation by Peaslee, Volume I, Third Revised Edition, Constitution of Burundi Article 47 of Cameroon Constitution, Article 73 of Constitution of Chad, Article 55 of Ghana Constitution, Article 99 of Dahnoey, Article 50 of Kemy Constitution, to contend that the scope of amending process is not all comprehensive. He asserted that the Constitutional amendment is a bad law being beyond the jurisdiction of the Parliament to make it. It also breaches the representative feature of governance. He submitted that a political party is not the concern of the Constitution. He further submitted that the Legislature should be suggested by the Apex Court to adopt some other measures to check floor-crossing instead of making this. Concluding his submissions he emphasised that interpretation of Article 63A of the Constitution should be in conformity with the modern trends, which suggest that the basic feature of the Constitution should not be amended. To support the theory of basic structure reliance was also placed on the following judgments of India as well as Pakistani jurisdiction: Golak Nath v. State of Punjab AIR 1967 SC 1643, Kesavananda v. State of Kerala (AIR 1973' SC 1461), Sint. Indra Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789), Khawaja Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646 at 666), Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473) and Multiline Associates v. Ardeshir Cowasjee (PLD 19_95 SC 423).

6. Ch. Muhammad Farooq, learned Attorney-General for Pakistan appearing on Court's notice contended that the Constitution petitions were not maintainable, inasmuch as, no question of enforcement of fundamental right of the petitioners arose, who were not Members of the Parliament or any of the Provincial Assemblies, therefore, they were not affected by the impugned Constitutional Amendment. Learned Attorney-General next submitted that Article 63A was neither violative of the Basic structure of the Constitution nor the basic structure theory is applicable to the Constitution of Islamic Republic of Pakistan. In support of his contention reliance was placed on Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). He further submitted that the Constitutional Amendment was neither against Federalism nor it offends independence of Judiciary or Parliamentary democracy blended with Islamic Injunctions. He submitted that the Constitutional Amendment was not in any way violative of the representative character of Parliament as it was enacted in accordance with the procedure laid down under Articles 238 and 239 of the Constitution. The learned Attorney-General pleaded that right from 1950 Members of the political parties started changing their loyalties overnight for some allurement which has always been one of the causes of the decline and fall of democracy. The Government, therefore, cannot escape its moral and democratic obligations and electoral commitment on curbing floor-crossing and that is why the impugned Constitutional Amendment has been brought into the Constitution to curb defection. Learned Attorney-General in support of the Constitutional Amendment placed reliance on the following decisions: Khawaja Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Multiline Associate v. Cowasjee (PLD 1995 SC 423), The State v. Ziaur Rehman (PLD 1973 SC, 49) and Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426).

7. Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing on behalf of the Federation highlighted the distinction between the ordinary legislative process and Constitutional process i.e. the power of the Parliament to amend the Constitution. He submitted that the provision under challenge in this case is an amendment of the Constitution. He submitted that so far as the Supreme Court is concerned, the basic structure theory right up to Mahmood Khan Achakzai's case (supra), was not accepted. In support of his contention reliance was placed by him on the following decisions: The State v. Zia-ur-Rehman (PLD 1973 SC 49), Federation of Pakistan v. Saeed Ahmed (PLD 1974 SC 151), Islamic Republic of Pakistan v. Wali Khan, M.N.A. (PLD 1976 SC 57), Fauji Foundation v. Shamim-ur-Rehman (PLD 1983 SC 457), Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26), Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), Shanhari Prasad v. Union of India (AIR 1951 SC 458), Sajjan Singh v. State of Rajisthan (AIR 1969 SC 845), Punjab National Bank v. K:L.Kharabanda (AIR 1963 SC 487), Minerva Mills Ltd. v. Union of India (1980 3.SCC 625), Sangeev Code Mfg. Co. v. M/s. Blara Coking Coal Ltd. (AIR 1983 SC 239) and P. Sambanurthy v. State of A.P. (AIR 1987 SC 663). Syed Sharifuddin Prizada, also cited a number of Articles from Indian Constitution namely: 8, 9, 10, 12, 13,

14. Reference was also made to R. v. Latif (1996 All ER (1)353). Mr.Sharifuddin Pirzada submitted that the Indian view on the subject is that the fundamental rights can be amended or abridged but cannot be abrogated. As to the vires of the Constitutional Amendment, Mr. Sharifuddin Pirzada emphasised that while interpreting the laws the Courts should not interfere in the texture or text of a law, but iron out creases. He submitted that there is distinction between law and Constitution and that in Article 8 the expression "law" does not include Constitution amendment. He referred to the following provisions of the Constitution wherein the expressions "law" and "Constitution" have been used:-

309. "The Constitution of Pakistan uses expressions "Law" and "Constitution" in various important Articles

310. Article 5: Loyalty to State and obedience to Constitution and Law

311. Article 6(1): Any person who abrogates the Constitution shall be guilty of high treason.

312. Article 6(3): Parliament shall by law provide for the punishment of persons found guilty of high treason.

313. Article 137: Proviso. In any matter with respect to which Parliament and the Provincial Assembly have power to make laws, the executive Authority of the Province shall be subject to and limited by the executive authority expressly conferred by the Constitution or by law made by Parliament upon the Federal Government or Authorities thereof.

314. Article 175(2): No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

315. Article 191: Rules of Procedure of Supreme Court of Pakistan-- Subject to the Constitution and law, the Supreme Court may make Rules regulating the practice and procedure of the Court.

316. Article 202: Identical provision. Re: Rules of Procedure of High Court.

317. Article 275(5) Subject to the Constitution and law all Civil and Criminal Courts exercising jurisdiction and functions immediately before the commencing date shall continue to exercise their respective jurisdiction.

318. Oaths of the various functionaries especially of the Chief Justice of Pakistan and Judges of the superior Courts provide that they will discharge their duties and perform their functions honestly to the best of their. ability and faithfully in accordance with the Constitution and the law. "

8. Syed Sharifuddin Pirzada next submitted that amendment is only the constituent power. However, there is no conflict on the view that fundamental rights can be amended or abridged but cannot be abrogated. The precise submission of Syed Sharifuddin Pirzada was that the impugned amendment is neither violative of any provision of the Constitution nor of the basic structure of the Constitution as depicted by the learned counsel for the petitioners.

9. Mr. Iftikhar Gilani, in reply to the submissions made by the learned Attorney-General and Syed Sharifuddin Pirzada, stressed that provisions of Article 63A of the Constitution are not enforceable against the Members of the Parliament as these provisions relate to a "lesser right which cannot be reconciled with the provisions of Articles 4, 17, 19, 25, 63(2), 66 and 95 of the .Constitution which relate to the higher rights and being violative of fundamental rights enumerated above. He emphasised that the impugned amendment violates the basic feature of the Constitution, namely, the Parliamentary form o Government.

10. After hearing the learned counsel for the parties, going through the case-law cited at the Bar and going through the proposed judgment by the learned Chief Justice my views are reflected in the succeeding paragraphs.

11. Before the Senate unanimously passed the Fourteenth Constitutional Amendment Bill on 30th June, 1997, the leader of the Opposition in the Senate Ch. Aitzaz Ahsan, pointed out certain flaws in the original Draft Bill presented by Finance Minister Mr. Sartaj Aziz and piloted by the Advisor to the Prime Minister on law Mr. Khalid Anwar. The Government agreed to incorporate a number of amendments proposed by the Opposition which made tremendous contribution to the Bill before it was unanimously passed.

12. The first amendment was made in sub-clause (a) of the Explanation to clause (1) of Article 63A when the word 'includes' was replaced with 'means'. The second amendment, incorporated on the recommendation of the Opposition, was in sub-clause (c) to the Explanation to clause (1) of Article 63A. The word ' matter' was replaced with 'bill'. The third amendment, made on the recommendation of the Opposition, was in clause (2) of the Article 63A. Under the amendment the defection or otherwise of a member would be decided by the disciplinary committee of the party on a reference by the Head of the Party. The disciplinary committee would given an opportunity of personal hearing to the member concerned within seven days of receiving the reference. If the decision is against the concerned member he would file an appeal to the Party Head within seven days of the decision. The decision of the Party Head in this case would be final. The Party Head will decide the case of the concerned member after examining his explanation. In the original Bill, the Party Head referred the case of defection of the concerned member to the Speaker who would in turn send the case to the Election Commission who would endorse the decision and announce bye-election on the vacant seat.

13. The passage of Anti-Defection Bill was widely hailed by almost all the party leaders in the Parliament and it was hoped that it will help eliminate the politics of blackmailing, lotacracy, horse-trading and other such evils, which were causing great damage to the politicians and destroying the democratic institutions. It was also hoped that the Bill will promote cleanliness and honesty in the politics that was need of the day. A number of editorials were written in support of the anti-Defection Bill after it was passed. Some people, however, described the Constitutional Amendment as undemocratic and oppressive, as per news reports, of which judicial cognizance could be taken.

14. All the political parties which were affected by defection felt the need to eradicate the evil through legislation. Reference in this regard may be made to Pakistan People's Party Manifesto, which contained, inter alia, the following programme: -

319. "POLITICAL PARTIES ACT will be made effective to ensure an end to floor-crossing and horse-trading so that, once elections are over, a letter from the Leader of the Parliamentary Party will automatically disqualify a member."

320. Pakistan Muslim League's Election Manifesto, 1993, contained the following programme:-

321. "To firmly establish democratic institutions and healthy traditions so that all future changes of Government take place only through periodic elections, floor-crossings by elected representative are prohibited and the elected opposition is given full recognition to play is due role in the National Parliament and the Provincial Assemblies. the essence of democracy lies in political pluralism."

322. Sir Winston Churchill is reported to have described the duties of a Member of Parliament as under:-

323. "The first duty of a Member of Parliament is to do what he thinks in his faithful and disinterested judgment is right and necessary for the honour and safety of Great Britain. His second duty is to his constituents, of whom he is the representative but not the delegate. Burke's famous declaration on this subject is well-known. It is only in the third place that his duty to the party organisation or programme takes rank. All these three loyalties should be observed, but there is no doubt of the order in which they stand under any healthy manifestation of democracy. "

324. Reference may also be made to the Report of the Constitution Commission, 1961 in this behalf, relevant passage whereof at page 370 reads thus:-

325. "The members of the legislatures in Pakistan, on an average, with a few honourable exceptions, did not regard anyone of these duties as binding on them. They were, on the other hand, mainly concerned with their individual interest. Even in the first year of Pakistan, when the enthusiasm of the people for building up the new country was at the highest, personal rivalry started amongst the members of the party in power .

326. ... ... .... .. ...that members of the Legislatures, with a few exceptions, were not imbued with the spirit of service to the country, or even to the constituency, but were concerned only with their own interests. As, in the Parliamentary form of Government, the Head of the Executive,, i.e. the Prime Minister or Chief Minister, as well as the Ministers depend solely on the support of the majority party, they had to keep that majority satisfied and for that purpose did interfere in the administration, and in some cases their interference was also for their personal advantage .... ... ... .

327. . . . . .. . . . . . . . . . Suffice it to point out that. as stated before us by a witness of considerable political experience, most of the persons who stood for elections, during the period under review regarded the money spent, and the effort put in, by them as an investment from which they expected to draw dividends, in the shape of benefits, by putting pressure on the party in power. It is also clear from some of the statements made before us, that the Ministers were so busy helping their political supporters that they could not concentrate on questions of policy, which was their main domain. They were so concerned with the consolidation of their own position that they showed greater interest in administrative detail, which, in advanced countries where the Parliamentary system has been successful, is left to the experts and the . services."

15. Let me first dilate on the argument that Article 63A has not achieved the desired object of eradicating the evil of defection in consonance with the scheme of democracy, inasmuch as, the right to dissent is a sine qua non of the existence and survival of democracy but Article 63A has denied right to dissent. This argument which appears to be very attractive, is not to be examined in the abstract but with reference to the policies of the Government/political party in power on the one hand and the Opposition on the other. H.M. Seervai, in his Constitutional Law of .India, A Critical Commentary, Third Edition, Volume II, rightly described that defection "is the evil which must be eradicated in our country. For in India it is very rare for the members of a party to leave it because of conscientious change of opinion. Defections in .India generally take place because political support is sold for money or for promise of ministership or public office, and the defector may defect again for more money and promise of more important ministerships or public office. In short, it is an odious form of political corruption". Unfortunately, Members of the Parliament in Pakistan are not lacking behind in this behalf. Thus, visualized, a number of important factors have to be kept in mind with reference to the scheme of democracy envisaged by the Constitution and the conditions under which that democracy must operate. It is true that a role to be placed by the Opposition in the Parliamentary Form of Government, as envisaged by our Constitution, cannot be' minimized. It is also true that a Member of a political party/parliamentarian must be allowed to exercise his fundamental right of freedom of speech subject to reasonable restrictions as contemplated by Article 66 read with Article 19 of the Constitution.

328. 16, Needless to say, that the Opposition has an important role to play in a Parliamentary Form of Government/Cabinet form of Government. Sir Jennings in his Cabinet Government (Third Edition, page 472), observed:-

329. "The strength of the Government.--It is now untrue to say that the most important part of Parliament is the Opposition in the House of Commons. The function of Parliament is not to govern but to criticise. Its criticism, too, is directed not so much towards a fundamental modification of the Government's policy as towards the education of public opinion. The Government's majority exists to support the Government. The purpose of the Opposition is to secure a majority against the Government at the next general election, and thus, to replace the Government. This does not imply that a Government may not be defeated in the House of Commons. Nor does it imply that Parliamentary criticism may not persuade the Government to modify, or even to withdraw, its proposals. These qualifications are important but they do not destroy the truth of the principle that the Government governs and the Opposition criticises. Failure to understand this simple principle is one of the causes of the failure of so many of the progeny of the Mother Parliament's and of the suppression of Parliamentary Government by dictatorships. "

17. As to the theory of right to dissent, H.M.Seervai in his critical Commentary, Third Edition on Constitutional Law of India observed:-

330. "Therefore, the right to dissent which is a valuable right has to be exercised not in the abstract, but by reference to a Government run on party lines with the Government on one side and the opposition on the other. When after an election, the ruling party is defeated and the party or group opposed to it are put in power, ex hypothesis, every member of the ruling party is obliged to see that the policies of the Opposition which the electors have rejected are not allowed to prevail. For any member of the ruling party to help in toppling a Government before the normal term of Parliament is over is *to help the Opposition in implementing the policies which the electors have rejected. This consideration restricts the right to express dissent for two reasons: first, an obligation to the electors, and secondly, an obligation to the ruling party to support it for the normal duration of Parliament. The obligation to the electors stems from the fact that in modern times, the elector, speaking broadly, casts his vote not for a particular individual because of his individual merits, but because he is put up by the party for whom the elector desires to vote."

18. Sir Ivor Jennings in his Cabinet Government, pages 473-4 (ibid) has depicted the part played by the party in the election of a candidate in the following terms:-

331. "The successful candidate is almost invariably returned to Parliament not because of his personality nor because of his judgment and capacity, but because of his party label. His personality and his capacity are alike unknown to the great mass of his constituents. A good candidate can secure a number of votes because he is good; a bad candidate can lose a few because he is bad. Local party organizations, therefore, do their best to secure a candidate of force and, character. But his appeal is an appeal on his party's policy. He asks his constituents to support the fundamental ideas which his party accepts. His own electioneering is far less important than the impression which his party creates in the minds of the electors. They vote for or against the Government or for or against the party to which he belongs. The 'national' speaker who comes into a constituency to urge electors to support the candidate probably knows nothing of him. He commends the candidate because he supports the party; he would condemn him with equal pleasure if he did not. Many of the posters are prepared and circulated by Party Headquarters. The candidtate's own posters emphasis his party affiliation. He possesses an 'Organization' because the party supporters in the locality--stimulated, if necessary, by the Party Headquarters--believe in the party policy sufficiently strongly to give time and trouble to its work. "

19. The description given by Sir Ivor Jennings applies with great force to Pakistan. Clearly, the candidates elected on a party ticket represent to the electors that he will support to the party and its general policies and programmes and that he will abide by the decisions of the party once such decisions are taken. Thus, visualized, the right of dissent is greatly restrained otherwise the policies of the party cannot be carried on. A Member of the Parliament cannot demand that his views ought to be accepted before decisions are taken. He can, no doubt, participate in the proceedings and freely express his point of view. Clearly, the party voting discipline is not, per se, a negation of Intra-Party Democracy. The policies/programmes of the party when come to the Parliament for implementation through law-making, should first be discussed and deliberated with democratic openness within the party structure but once a party decision is taken, it must be supported even by that member of the Party who dissented during deliberations, in that, failure in such support would undermine the authority of the ruling party to the advantage of the Opposition, which may lead to instability of the Government. Prime Minister, Mian Muhammad Nawaz Sharif, as per news item published in the Frontier Post, Peshawar in its issue dated 1-7-1997, 'addressing a news conference minutes after securing the consent of the P.M.L.(N) and allied parties Senators for the Constitutional amendment made the categorical assurance that the members would still be enjoying full freedom of expression. "I have always encouraged the freedom of discussion". It would, therefore, be seen that the ruling party's own interpretation of Article 63A is that the party members will enjoy full freedom of speech subject to reasonable restrictions imposed by law as contemplated by Article 19 read with Article 66 of the Constitution. It may be emphasised that a Parliament-dependent Government implies party-supported Government: a support that in turn requires voting discipline along the party lines. Abstention from voting in the House against the party policy in relation to any Bill or voting contrary to any direction issued by the Parliamentary Party to which a Member belongs, must equate with defection. It may also be mentioned that in the case of Pir Sabir Shah v. Shad Muhammad, Member, Provincial Assembly (PLD 1995 SC 66), 1 supported the majority view that the provisions of section 8-B(2) and (3) of the Political Parties Act (Act XIII of 1962) as amended, were in conflict with Article 63(2) of the Constitution to the extent of forum. But I specifically observed in my iudgment that defection is like a contagious disease and needs proper treatment and we are also not inclined to affix the seal of approval to an act of defection.

20. As to Cases of Conscience, Lord Bryce, in Modern Democracies, Vol. I (1929), p.136, made the following observations:-

332. "Cases of conscience--do no doubt arise, and are sometimes perplexing, but twenty-seven years experience in the British House of Commons have led me to believe that they are less frequent than one would, looking at the matter a priori, have expected them to be. Old members have often told me that they had more often regretted votes given against their party under what they thought a sense of duty than those which they had, though with some doubt, given to support it. "

333. Reference may also be made to the following observations by H.M. Seervai in his Critical Commentary (ibid):-

334. "The right to dissent is a valuable right in a democracy. It is designed to secure a free responsible Government which can effectively govern. If in the name of democracy, the right of public dissent is used to make a democratic Government impossible, or feeble and ineffective, then the exercise of the right is an attack on democracy which democracy must defeat for its survival as an effective instrument of self-Government. "

335. '21. Reference may also be made to the following passages in Comparative Constitutional Engineering by Giovanni Sartori:-

336. "(1) Now back to party discipline. As the mapping that I have just drawn clearly implies, party discipline cannot and should not be identified with, or derived from party omnipotence. True, if the party is atrophied or utterly dismembered, then we have a dead seed from which nothing grows.

(2) We, thus, come to the problem of defection and of party splits. In stable Western democracies this problem is easily overlooked. But the end of the Japanese predominant party system was brought about, in 1993, by the splitting of the L.D.P., its predominant party. And India has long been plagued by amorphous and typically unstable parties. Indeed, members of India's Parliament have developed, however, countermeasures. In the House of People (Lok Sabba) an M.P. who defects loses the seat.

(3) A second, related point is this: that parties may be the real units in the electoral arena, and yet lose their 'unity' in the Parliamentary arena, as Parliamentary Parties. We are, thus, brought back to the question whether govern ability is served better by discipline or by undisciplined parties. With Parliamentary Systems the answer clearly is that undisciplined parties are dysfunctional, that they are responsible for the poor showing of the assembly variety of parliamentarism. "

22. As to the argument that in terms of clause (a) of the Explanation to Article 63A, a Party Head has become a complainant and the Judge in the case, therefore, it is violative of the principles of natural justice, it would suffice to say that the scheme visualized under the impugned Article is totally akin to the establishment of Supreme Judicial Council for inquiring into misconduct of any Judge. Article 209 of the Constitution reads thus:-

337. "209. Supreme Judicial Council.--(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

(2) The Council shall consist of,

(a) the Chief Justice of Pakistan;

(b) the two next most Senior Judges of the Supreme Court; and

(c) the two most Senior Chief Justices of High Courts.

338. Explanation.--For the purpose of this clause, the inter se seniority of the Chief Justice of the High Courts shall be determined with reference to their dates of appointment as Chief Justice (otherwise than as acting Chief Justice), and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.

(3) If at any time, the Council is inquiring pinto the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then-

(a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and

(b) if such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.

(4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court,-

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may have been guilty of misconduct, the President shall direct the Council to inquire into the matter.

339. .(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion,--

(a) that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

(b) that he should be removed from office, the President may remove the Judge from office

(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts."

340. It would appear that the President is clothed with the authority to make a reference, receive its answer from the Supreme Judicial Council and take a decision thereon. A similar power has been made available to the Party Head to which no exception can be taken. Thus, visualized, the plea that the impugned Article is violative of the principles of natural justice cannot be held to be supported by the provisions of the Constitution itself. It may also be mentioned that the Constitutional provisions of other countries referred to by Dr. A. Basit need not be commented upon, inasmuch as, the particular provisions relate to the countries concerned respectively and provisions of the Constitution of Pakistan, hereunder discussion, have to be regulated and interpreted as an organic whole alongside the Constitution of Islamic Republic of Pakistan, 1973.

341. Viewed even in the above perspective the impugned Article is not ultra vires of the Constitution.

23. Let me now dilate upon on the doctrine of basic structure in the Indian Constitution as well as Pakistani .Constitution. The question whether an amendment of fundamental rights guaranteed by Part III of the Constitution is permissible under the procedure prescribed by Article 268 of the Indian Constitution, came before the Supreme Court of India, as early as in.1951 in Sankari Prasad v. Union of India (AIR 1951 SC 458). In that case, the Court had held that the power to amend the Constitution, including the fundamental rights, was contained in Article 368 and that the word 'law' in Article 13(2) did not include an amendment of the Constitution which was made in the exercise of constituent and not legislative power. Sankari Prasad case had raised the validity of the Constitution (First Amendment) Act, 1951 and after the Supreme Court's decision, several amendments were made in the Constitution of which the Fourth and Seventh Amendments related to Part III of the Constitution. The Seventeenth Amendment which added several legislations to the Ninth Schedule making them immune from attack on the ground of violation of fundamental rights was challenged in Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845). Though three of the five Judges (Gajendragadkar C.J., Wanchoo and Dayal, JJ.) in that case fully approved Sankari Prasad case two of them (Hidayatullah and Mudholkar, JJ.), in their separate but concurring opinions expressed serious doubts whether fundamental rights created no limitation on the power of amendment. In Golak Nath v. State of Punjab, (AIR 1967 SC 1643), the Supreme Court by a majority of six to five dissented from the view in the earlier cases and held that the fundamental rights were outside the a mandatory process, if the amendment took away or abridged any fundamental right. This decision led to the passing of the Constitution (Twenty-Fourth Amendment) Act, 1971, which made significant changes in Article 368. Firstly, it sought to nullify the effect of Golak Nath's case by adding clause (4) to Article 13 which provides that nothing in Article 13 shall apply to any amendment of the Constitution made under Article 368. It means that the meaning of the word 'law' in terms of Article 13 will not extend to an amendment made under Article 368. This position is reassured by adding clause (3) to Article 368 which provides that nothing in Article 13 shall apply to an amendment made under this Article. Secondly, this amendment made a change in the marginal note to Article 368 by substituting "Power of Parliament to amend the Constitution and procedure therefor" for "Procedure for amendment of the Constitution".

342. The validity of the Twenty-Fourth Amendment came up for discussion in Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461), wherein a writ petition was filed initially to challenge the validity of the Kerala Land Reforms Act of 1963 as amended in 1969. But as the Act was amended in 1971 during the pendency of the petition and was placed in the Ninth Schedule by the Twenty-Ninth Amendment the petitioner was permitted to challenge the validity of Twenty-Fourth, Twenty-Fifth and Twenty-Ninth. Arnendments to the Constitution also. The petition was heard by a Bench consisting of all the thirteen Judges of the Supreme Court. It was urged by the petitioner that if the power of amendment is to be construed as empowering Parliament to exercise the full constituent power of the people arid authorising it to destroy or abrogate the essential features, basic elements and fundamental provisions of the Constitution, such a construction must be held illegal and void. This is so because (I) having only such constituent power as is conferred on it by the Constitution which is given by the people unto themselves, Parliament cannot enlarge its own power so as to abrogate the limitation in the terms on which the power to amend was conferred; (ii) being a functionary, created under the Constitution, Parliament cannot arrogate to itself the power of amendment so as to alter or destroy any of the essential features of the Constitution; (iii) purporting to empower itself to take away or abridge all: or any of the fundamental rights, Parliament does not become competent to destroy the basic human rights and the fundamental freedoms which were reserved by the people for themselves when they gave to themselves the Constitution; and (iv) initially having no power to alter or destroy any of the essential features of the Constitution, and also recognising implied and inherent limitations on the amending power, Parliament has no power to alter or destroy all or any one of the fundamental rights, or in other words, Parliament cannot abrogate the limits of its constituent power by repealing those limitations and thereby purporting to do what is forbidden by those limitations. All the Judges were of the view that the Twenty-Fourth Amendment is valid, and that by virtue of Article 368, as amended by the Twenty-Fourth Amendment, Parliament has power to amend any or all the provisions of the Constitution including ;hose relating to the fundamental rights.

343. Khanna, J. agreed in principle with Sikri,~ C.J., Shelat, Grover, Jaganmohan Reddy, Hegde and Mukherjea, JJ., that the amendment of the Constitution cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. According to him, for instance, changing the democratic Government into dictatorship or hereditary .monarchy, abolishing Lok Sabha or Rajya Sabha or doing away with the secular character of the State, would not be competent or permissible under. the garb of amendment. However, he differed from the above named Judges .in that he found it not possible to read in Article 368 a limitation on the; power of Parliament to amend the provisions relating to fundamental rights and to .differentiate between the scope and width of the power, of amendment when it deals with the fundamental rights and when it deals with provisions other than the fundamental rights. In his view the power to amend fundamental rights cannot be denied by describing them as natural or human rights unless of course, the basic structure of the Constitution remains unaffected. In other words, subject to the retention of the basic structure or framework of the Constitution, he explained that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various provisions including those relating to fundamental rights.

344. In Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), the Supreme Court had an occasion to make a reference to Kesavananda Bharati's case and accepted the majority opinion on the doctrine of basic structure or framework of the Constitution. The scope and extent of the application of the doctrine of basic structure again came up for discussion before the Supreme Court in Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789).

345. In Sanjeev Coke Mfg. Co. v Bharat Coking Coal Ltd. (AIR 1983 SC 239), while considering the validity of the Coking Coal Mines (Nationalisation) Act, 1972, under Article 31C, as it stood before its amendment by the Forty Second Amendment, Chinappa Reddy, J. speaking for a Constitution Bench of the Court expressed some misgivings about the Minerva Mills' case in so far as it invalidated the amendment of Article 31C. He said that Minerva Mills' case was concerned with a law passed before ,the amendment of Article 31C by the Forty-Second Amendment, and therefore, any decision on the validity of the amendment of that Article. was purely hypothetical and academic. In Shri Raghunathrao Ganpatrao v. Union of India (AIR 1993 SC 1267), the Supreme Court has upheld the Constitution (Twenty-Sixth Amendment) Act, 1971, which de recognised the former Indian Rulers and abolished their privy purses and other privileges by repealing Articles 291 and 362 and inserting Article 363A. The Court conceded that the repealed provisions were integral part of the Constitution but did not agree that every integral provision constituted basic structure of the Constitution. It rather found the amendment in consonance with republicanism, human dignity and equality proclaimed in the Preamble and running through the Constitutional provisions.

24. With these .pronouncements the existence of the doctrine of basic structure in Indian Constitutional Law is no more a matter of dispute. The only dispute remains about its contents. Some of the contents seem to have settled while others are in the, process of settling and still some others might settle in course of time.

25. As to applicability of the doctrine of "basic structure" in Pakistan the learned Chief Justice has taken great pains in,pointing out relevant passages from various decisions of this Court in this behalf viz. The State v. Zia-ur-Rehman (PLD 1973 SC 49), Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151), Islamic Republic of Pakistan v. Wali Khan, M.N.A. (PLD 1976 SC 57), Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad, etc. v. United Sugar Mills Ltd., Karachi (PLD 1977 SC 397), Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457), Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad (PLD 1988 Lah. 725), Sharaf Faridi v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan (PLD 1989 Kar. 404), Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) and Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26), vide paragraphs 11 and 12 of the proposed judgment to show that the "basic structure" theory consistently had not been accepted. I am in respectful agreement with him on this issue.

346. In so far as the case of Mahmood Khan Achakzai (supra) is concerned, I fwas a party to the said judgment. I also agreed with the short order passed by Sajjad Ali Shah, CJ. (as he then was), paragraph 10(2) whereof reads thus:-

347. "What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said 'that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment."

348. The short order and the reasons given in support thereof by Sajjad Ali Shah, C. J. (as he then was), when read in its entirety would show that the theory of basic structure was not authoritatively answered in the said case. There is also great force in the submission made by Syed Sharifuddin Pirzada that the term "law" used in Article 8 of the Constitution does not include any provision of the Constitution and that a Constitutional provision cannot be struck down being repugnant to Article 8 of the Constitution. Similar view has been taken by the learned Chief Justice in the proposed judgment, which I respectfully follow. Viewed in this perspective as well, the impugned Article does not violate any of the Constitutional provisions or the principles of democracy and freedom as enunciated by Islam and the Constitution.

26. As to the plea that paragraph (6) to Article 63A of the Constitution excludes the judicial review of the Courts and militates against Item No.55 of the Federal Legislative List, 'which envisages that the jurisdiction of the Supreme Court could not be curtailed, it may be observed that Item No.55 in the Federal Legislative List applies to ordinary legislative powers and not to Constitutional amendment. Clause (2) of Article 175 of the Constitution itself provides that no Court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Nevertheless independence of Judiciary which is guaranteed by the Objectives Resolution which is now the substantive part of the Constitution cannot be abridged or abrogated.

349. The Supreme Court does not have unfettered jurisdiction so as to entitle it to strike down a provision of the Constitution on any ground other than those highlighted by this Court in the case of The State v. Zia-ur-Rehman (PLD 1973 SC 439), wherein Hamoodur Rehman, CJ. observed:-

350. "This takes me to the question as to what is a Constitution. The Constitution, as defined by K.C. Wheare, for countries which have a written Constitution, `Is a selection of the legal rules which govern the Government of that country and which have - been embodied in a document or collection of documents.' It generally embodies the fundamental principles upon which the Government the country should be established and conducted, but there is no set pattern or form provided for a Constitution. It may take a variety of forms. Some Constitutions endeavour. to lay down in detail the whole Governmental structure of the country while others merely establish the principal institutions of Government and fill in the details by sub-Constitutional laws organising the institutions and regulating to exercise of public power through the organs or institutions so set up. Of late, the practice has also grown up of incorporating within the Constitution itself a declaration of fundamental rights and even basic principles of State policy. In countries which adopt a detailed Constitution, the Constitution is thought of as an instrument by which Government can be controlled, and it is for this reason that generally some measure of rigidity in the procedure for the amendment of the Constitution is also introduced, and the Constitution is conceived of as a fundamental or an organic or a supreme law standing in a somewhat higher position than the other laws of the country. It then assumes the position of a law on the basis of which the vires of all other sub-Constitutional laws and the validity of Governmental actions can be judged. Thus, even non Constitutional provisions, if incorporated in a Constitution, acquire a higher sanctity and stand on the same footing as strictly Constitutional provisions. No differentiation can be made between them, once they have been given a Constitutional status by being incorporated in the Constitution itself."

351. Similar view was taken in Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), wherein this Court held that Constitutional provision cannot be struck down being repugnant to Article 2A of the Constitution. Reference may also be made to Federation of Pakistan v. Saeed Ahmed (PLD 1974 SC 151), Fauji Foundation v. Shamim-ur-Rehman (PLD 1983 SC 457) F.B. Ali v. The State (PLD 1975 SC 506), Federation of Pakistan v. United Sugar Mills Ltd., Karachi (PLD 1977 SC 397), Mian Jamal v. Member, Election Commission (PLD 1966 SC 1) and Farzand Ali v. Province of West Pakistan (PLD 1970 SC 95). It is, however, well-settled that, actions/orders impugned before the superior Courts, if found to be without jurisdiction, coram non judice or mala fide, can be struck down notwithstanding a non obstante clause.

27. 1 may say with utmost respect that I am unable to subscribe to the view taken by the learned Chief Justice vide paragraph 18(1) of the proposed judgment that the breach of party discipline in terms of sub-clause (a) to the explanation to clause (1) of Article 63A of the Constitution, is applicable only to the alleged breach of the party discipline taking place within the House. I am of the view that all activities and actions which have a bearing on a purpose behind the defection would also fall within the ambit of sub-clause (a) to the Explanation to clause (1) of the impugned Article, inasmuch as, sub-clause (a) to the Explanation to clause (1) of the impugned Article is a separate discipline and has no nexus apparently with the remaining sub-clauses i.e. (b) and (c). The latter two sub-clauses specifically deal with those facets of the action/activity which take place at the floor of the House, therefore, sub-clause (a) has to have a separate existence from sub-clauses (b) and (c) thereof. Clearly, if discipline is to be endorsed to prevent defection only in the House then it can be frustrated by actions and activities of a Member of the House who may indulge in actions and activities outside the House, which shall have repercussions on the proceedings and/or voting in the House. It is trite law that unless a different intention is apparent, the enumeration of specified matters in a Constitutional provision is usually construed as an exclusion of matters not so enumerated. See 325, Constitutional Law, Corpus Juris Secundum.

28. As regards paragraph 18(ii) of the proposed judgment by the learned Chief Justice, I am in full agreement with the same. I may, however, add that eventuality envisaged therein shall be attended to whenever an occasion arises in that regard at the instance of an aggrieved party in appropriate proceedings.

29. The upshot of the whole discussion is that I respectfully agree with the learned Chief Justice that the petitions are maintainable and the impugned Article is not violative of any provision of the Constitution.

352. 30 Resultantly, both the Constitution petitions stand disposed of

353. (Sd.)

354. Irshad Hasan Khan, J

355. RAJA AFRASIAB KHAN, J.--On 4th of July, 1997, the Parliament of Pakistan (Majlis-e-Shoora) introduced an amendment to the Constitution of Islamic Republic of Pakistan, 1973. It is as follows:

356. "Whereas it is expedient further to amend the Constitution of the Islamic Republic of Pakistan in order to prevent instability in relation to the formation or functioning of Government:

357. "It is hereby enacted as follows

358. Short title and commencement.--(1) This Act may be called the Constitution (Fourteenth Amendment) Act, 1997.

(2) It shall come into force at once

359. 2 Addition of new Article 63-A in the Constitution. -In the Constitution of the Islamic Republic of Pakistan after Article 63 the following new Article shall be inserted namely:

360. 63A. Disqualification on ground of defection, etc.--(1) If a Member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the political party, or such other person as may be authorized in this behalf by the Head of the political party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

361. Explanation. ---A Member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration in writing,--

(a) commits a breach of party discipline which means a violation of the party constitution, code of conduct and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs, or

(c) abstains from voting in the House against party policy in relation to any Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a reference by the Head of the Party, shall decide the matter, after giving an opportunity of a personal hearing to the members concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven -days, before the Head of -the Party, whose decision thereon shall be final, in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision . to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring that seat vacant and amend it under the schedule of the bye-election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article-

(a) "House: means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article."

362. Wukala Muhaz Barai Tahafaz Dastoor through Constitution Petition No:24 of 1997 has assailed the validity of the amendment praying:

(i) The manner in which Writ Petition No.22131 of 1997 has been consigned to the limbo in the office of the Lahore High Court at the instance of functionaries of respondent Federation be declared to have infringed the Fundamental Right of equal protection of law guaranteed to each member of the Petitioner Body.

(ii) Relief as sought through the writ petition attached herewith may now be granted by the Supreme Court in exercise of jurisdiction vested in it under Article 184(3) of the Constitution.

(iii) It is further prayed that in the meanwhile, impugned 14th Amendment may be suspended and other interim reliefs sought through the interim application made in the Writ Petition be also allowed."

363. Another Constitution Petition No.25 of 1997 has been filed through Nawabzada Nasrullah Khan with the following prayer:

364. "It is, therefore, respectfully prayed that by accepting this petition the Constitution (Fourteenth Amendment) Act, 1997 inserting Article 63-A in the Constitution, be declared to be void and invalid on account of its inconsistency with and repugnancy to the Fundamental Rights and other provisions of the Constitution. "

2. On 27th of October, 1997, notice to the Attorney-General for Pakistan was issued by a Bench of this Court which was headed by the then Hon'ble Chief Justice for 28-10-1997. On 29th of October, 1997, following order was passed:

365. '

366. We have heard the learned Attorney-General for Pakistan We enquired from him about the time frame to which he replied that he would be good for the day. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, is also preset in the Court and states that he would argue on behalf of the Federation and would take about two days. Syed Zafar Ali Shah, M.N.A., is also present in the Court and has filed an application for impleadment as a party in the matter as he is directly affected by the subject-matter of this case.

367. Initially we were of the view that the proceedings should be concluded and final order should be passed, but it appears that now it is not possible as the hearing is to take place in detail for which sufficient time is required and secondly the session of National Assembly has been called today which will commence at 06.00 p.m. In the circumstances some order of interim relief is very essential.

368. It is submitted on behalf of the petitioners that Article 63A of the Constitution is not anti-defection law, but in essence it is anti-dissent and is violative of Articles 2A, 19, 55, 63, 66, 68 and 95 of the Constitution. Members of Parliament feel that in presence of the provisions mentioned above, if they speak freely and express their candid opinion according to their conscience and if that happens to be contrary to the policy of the ruling party, penal action would be taken and they would lose their seats.

369. In such circumstances we deem it fit and proper to grant interim relief in the terms that no adverse action shall be allowed to be taken against any Member of Parliament in pursuance of newly added Article 63A which is impugned in these petitions. This order shall remain operative till the final disposal of the petitions."

3. A Full Bench of this Court has heard the aforesaid cases from 17th to 20th of March, 1998. The learned counsel for the parties addressed very lengthy arguments. Their points have been noted in the leading judgment. There is, therefore, no need to repeat them except where it is absolutely necessary to do so. I have the honour to go through the proposed judgment having been rendered by his lordship Mr. Justice Ajmal Mian the Hon'ble Chief Justice of Pakistan. After discussing the case-law so far rendered on the controversy, the above noted Constitution petitions have been disposed of with the following observations:

370. "The upshot of the above discussion is that the above impugned Article is not violative of any provision. of the Constitution. However, in order to avoid future unnecessary litigation and to provide guideline, we may clarify the following points:

(i) That paragraph (a) is to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63-A of the Constitution. It must therefore, follow as a corollary that a Member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation clause (1) of the aforementioned Article and that the breach complained of occurred within the House.

(ii) That the above paragraph (a) to Explanation to clause (1) of Article 63A is to be construed in such a way that it should preserve the right of freedom of speech of a Member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.

371. With the above clarification, both the above Constitution petitions are disposed. "

4. In the judgment, a reference to the rule laid down in Hakim Khan. v. Government of Pakistan (PLD 1992 SC 595), Mahmood Khan Achakzai v. .Federation of Pakistan (PLD 1997 SC 426), Shahid Nabi Malik v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32) State v. -Zip-tir-Rehman (PLD 1973 SC 49), Sharaf Faridi and 3 others v., The Federation of Islamic Republic of Pakistan and another (PLD 1989 Karachi 404), Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lah. 725), Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) and The Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151) has been made. Apart from the above, case-law from the Indian jurisdiction was also discussed in depth. In this behalf special references were made to Shankari Prasad v. Union of India (AIR 1951 SC 458), Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), Golak Nath v. State of Punjab (AIR 1967 SC 1967), Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461), Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789), S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386), P.Sambamurthy and others v. State of Andhra Pradesh and another (AIR 1987 SC 663), Shri Kihota Hollohon v. Mr. Zachilhu (AIR 1993 SC 412), Shri Raghunathrao Gampatrao v. Union of Indian (AIR 1993 SC 1267) and R.C. Poudyal v. Union of India (AIR 1993 SC 1804). These cases have elaborately and very ably been analysed in the judgment to find out the viewpoint of the Indian Supreme Court on the issue. In case of Shankari Prasad (supra), Indian Supreme Court came to the conclusion that the Parliament was competent to amend the provisions of the Constitution which had given fundamental rights to the citizens. The observations are:--

372. "We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion 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 alterations of the Constitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand the terms of Article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision it would have been perfectly easy to make that intention clear by adding a proviso to that effect. 1n short, we have here two Articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the considerations adverted to above, we are of opinion that in the context of Article 13 'law' must be taken to mean rules or regulation made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that Article 13(2) does not affect amendments made under Article 368." (Emphasis supplied).

373. This view was upheld by the Indian Supreme Court in case of Sajjan Singh (supra), wherein it was held:--

374. "The power to amend Constitution conferred by Article 368 includes even power to take away fundamental rights under Part III. The dictionary meaning of the word 'amend' is to correct a fault or reform; but in the context of Article 368 reliance on the dictionary meaning of the word is singularly inappropriate, because what Article 368 authorises to be done is the amendment of the provisions of the Constitution. An amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their place of new provisions. Similarly, an amendment of the Constitution which is the subject-matter of the power conferred by Article 368, may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend in the context is a very wide power and it cannot be controlled by the literal dictionary meaning of the word 'mend'.

375. Nevertheless, the view taken by the Indian Supreme Court in the famous case of Golak Nath (supra), was that the Parliament would not have power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. The result in case of Golak Nath is as follows:-

376. "(53) The aforesaid discussion leads to the following results:

(1) The power of the Parliament to amend the Constitution is derived from

377. Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

(4) On the application of the doctrine of 'prospective overruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid'.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, The Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution."

378. For the first time in India, the Supreme Court in Kesavananda's case (supra), held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. A summary of the opinion of the Court was given in the following words:‑‑‑

379. "The view by the majority in these writ petitions is as follows:

380. Golak Nath's case is overruled;

2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;

3. The Constitution (Twenty‑Fourth Amendment) Act, 1971 is valid.

4. Sections 2(a) and 2(b) of the Constitution (Twenty‑Fifth Amendment) Act, 1971 is valid;

5. The first part of section 3 of the Constitution (Twenty‑Fifth Amendment) Act, 1971 is valid. The second part, namely, 'and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy' is invalid;

6. The Constitution (Twenty‑Ninth Amendment) Act, 1971 is invalid;

381. The Constitution Bench will determine the validity of the Constitution (Twenty‑Sixth Amendment) Act, 1971 (relating to abolition of privy purses and privileges of princes) in accordance with law."

382. The theory of basic structure of the Constitution was reiterated in the case of Smt. Indira Nehru Ghandi (supra). In para. 213 of the judgment, it was held:‑‑‑

383. "As a result of the above, I strike down clause (4) of Article 329‑A on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in' its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election."

384. Again, the Supreme Court of India upheld the theory of basic structure of the Constitution in case of Minerva Mills Ltd. (supra) stating:‑‑‑

385. "The summary of the various judgments in Kesavananda Bharati (AIR 1973 SC 1461) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority 'Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution'. Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view. "

5. After discussing the above case‑law, it has become evident that the Indian Supreme Court has come to the conclusion that there is basic structure of the Constitution which cannot be altered by the Parliament through the process of amendment. It can be said that the Constitutions of India and Pakistan have been enacted keeping in view their own specific historical backgrounds which are uncommon in many ways. For the first time, it may be pointed out that in case of Mehmood Khan Achakzai (supra), some light has been thrown on the basic structure theory of the Constitution of Pakistan. Our Constitution is blended with the Islamic provisions while the Constitution of India is secular in its nature and has been framed to meet her own needs and peculiar requirements. A comparison of Pakistani view with that of the Indian Supreme Court has also been made in the proposed judgment in a very illustrative manner.

6. After reading the proposed judgment carefully and keeping in view the arguments of the learned counsel for the parties, I have been persuaded to agree with the view that the impugned 14th Amendment is not violative of any provisions of the Constitution. However, in view of the importance of the case, I would like to add a few words about the basic structure of our Constitution. In Mahmood Khan Achakzai's case (supra), it has been observed by this Court that freedom of the Parliament does not include to alter the salient features of the Constitution. The relevant observations are:--

386. "It is not necessary to dilate upon the case of Zia-ur-Rahman any further for the reason that at present we are concerned only with Objectives Resolution in the Constitution appended as Preamble. Even in that capacity it invariably has remained Preamble in all the four Constitutions including the Interim Constitution of 1972 and, therefore, it has to be read for the purpose of proper interpretation in order to find out as to what scheme of governance has been contemplated. Let us assume that it does not authoritatively provide grund norm and also it does not describe specifically the basic structure of the Constitution, even then also it does help in interpreting and understanding the scheme of governance and salient features of the Constitution which are described therein including Islamic provisions, federalism and parliamentary form of Government and fully securing independence of Judiciary. Islamic provisions are very much embedded in the Constitution of 1973 as Article 2 thereof envisages that Islam shall be the State religion of Pakistan and Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Further, Article 228 provides for setting up Council of Islamic Ideology. Similar provisions existed in Articles 197 and 198 of the Constitution of 1956 and Articles 199 to 207 of the Constitution of 1962. Similar Islamic provisions existed in the Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as Preamble of the Constitution and now inserted as the substantive part in the shape of Article 2A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting federalism, parliamentary form of Government blended with Islamic provisions.

387. In the Constitution of 1973 in its original form Article 238 provides for amendment of the Constitution and Article 239 lays down the procedure for such amendment and is composed of seven clauses. Clause (7) provided that a Bill to amend the "Constitution which would have effect of altering the limits of a Province could not be passed by the National Assembly unless approved by resolution of Provincial Assembly of that Province by votes of not less than two-thirds of total membership of that Assembly. This shows anxiety of the Constitution makers of that time not to make it easy to alter the limits or boundaries of a Province unless Assembly of that Province consented with votes of not less than two-thirds of the total membership of that assembly. This anxiety was justified in the aftermath of loss of East Pakistan. Article 239 was amended by P.O. No.20 of 1985 and substituted by P.O. No. 14 of 1985 which are protected for validity by Constitution (Eighth Amendment) Act No.XVII of 1985. Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provisions providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would. suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment' does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient. features reflected in the Objectives Resolution are retained and not altered in. substance,, amendments can be made as per procedure prescribed in Article 239 of the Constitution.

388. Eighth Amendment Act has also introduced Article 270-A which provides for validation of Proclamation of 5th July, 1977 and all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders including Referendum Order, 1984. Eighth Amendment also includes addition of sub-Article 2(a) and (b) to Article 58 in the Constitution of 1973 giving extra power in his discretion to the President to dissolve the National Assembly, if he is satisfied that a situation has arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. Eighth Amendment does not affect the basic structure of the Constitution because there is no basic structure in the Constitution of 1973 and salient features or special characteristics are mentioned in the Objectives Resolution which remained Preamble to all the four Constitutions promulgated in Pakistan. Objectives Resolution is harbinger to and beacon light of Constitution reflecting hopes and aspiration of people, who created Pakistan after sacrifices and insurmountable hardships and laid down guideline as to how they wanted to be governed. Objectives Resolution now is incorporated in the Constitution of 1973 by the Eighth Amendment as Article 2A which is now substantive part of the Constitution. Salient features and basic characteristics of the Objectives Resolution are Federalism, Parliamentary Democracy and Islamic provisions including independence of Judiciary. Article 239 in the Constitution provides for amendment to the Constitution to be made in the manner prescribed therein. The only clog in clause (4) of this Article is that if amendment requires alterations in the limits of a Province then such amendment cannot be presented to the President for assent unless it has been passed by Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership. Article 239 cannot be interpreted so liberally to say that it is open-ended provisions without any limits under which any amendment under the sun of whatever nature can be made to provide for any other system of governance, for example, monarchy or secular, which is not contemplated by the Objectives Resolution. Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It, therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are. "

7. In Articles 238 and 239 of the Constitution, a method has been given to amend the Constitution. In order to better understand the case, the above Articles are reproduced:---

389. "238. Subject to this Part, the Constitution may be amended by Act of Majlis-e-Shoora (Parliament).

239. (1) A Bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House.

(2) If the Bill is passed without amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall, subject to the provisions of clause (4), be presented to the President for assent.

(3) If the Bill is passed with amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall be reconsidered by the House in which it had originated, and if the Bill as amended by the former House is passed by the latter by the votes of not less than two-thirds of its total membership it shall, subject to the provisions of clause (4), be presented to the President for assent.

(4) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be presented to the President for assent unless it has been passed by the Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership.

(5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Mailis-e-Shoora (Parliament) to amend any of the provisions of the Constitution."

390. Sub-Article (6) of Article 239 has declared that Parliament shall have full power to amend any provisions of the Constitution and in this behalf, there shall be no limitation on its power to do the needful. There is nothing to suggest that superior Judiciary is not competent to look into the validity of the amendment made in the Constitution. It is well-established proposition of law that it is in the sole domain of the Judiciary to interpret the provisions of the Constitution and law to find out their true meaning and purpose. This authority of the Judiciary cannot be abridged/ousted because it is its inherent right/power to do so. In case of Zia-ur-Rahman (supra), it was observed:--

391. "I myself have in my judgment, in the case of Fazlul Quader Chaudhry v. Muhammad Abdul Haque (PLD 1963 SC 486) taken the following view:

392. 'The. fundamental principle underlying a written Constitution is that it not only specifies the persons or Authorities in whom the sovereign powers of the State are to be vested but also lays down fundamental rules for the selection or appointment of such persons or authorities and above all fixes the limits of the exercise of those powers. Thus, the written 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. No power can, therefore, be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified ...............

393. It is no doubt true that the Courts are not above the Constitution and the source of their jurisdiction as well is the Constitution itself. I do not seek to claim for the Courts any higher jurisdiction, but I would venture to point out that it is a cardinal principle that in every system of Government operating under a written Constitution the function of finally determining its meaning must be located in somebody or Authority and the organ of Government which is normally considered most competent to exercise this function is the Judiciary. This is, of course, subject to the provisions of the Constitution itself which may well provide otherwise. In such event, however, the contrary provision must be either express or one which can be derived as a necessary implication of the provisions of the Constitution. But such a departure is not to be readily inferred, for, the consistent rule of construction adopted by all Courts is that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster.'

394. In the case of Fazlul Quader Chowdhury v. Shah Nawaz (PLD 1966 SC 105) S.A. Rahman, J. (as he then was) in delivering the judgment of this Court observed:--

395. 'The Constitution contains a scheme for the distribution of powers between various Organs and Authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all ether authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority. Legal issues of the character raised in this case could only be resolved in case of doubt or dispute, by the superior Courts exercising judicial review functions, assigned to them by the fundamental law of the land, viz., the Constitution which must override all other sub-Constitutional laws. The Judges of the High Court and of this Court are under a solemn oath to 'preserve, protect and defend the Constitution' and in the performance of this onerous duty they may be constrained to pass upon the actions of other authorities of the State within the limits set down in the Constitution, not because they arrogate to themselves any claim of infallibility but because the Constitution itself charges them with this necessary function, in the interests of collective security and stability. In this process, extreme and anxious care is invariably taken by the Judges to avoid encroachment on the Constitutional preserves of other functionaries of the State and they are guided by the fullest and keenest sense of responsibility while adjudicating on such a matter.'

396. So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a Provision seeking to oust the jurisdiction of this Court.

397. This is a right which it acquires not de hors the Constitution but-by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or super natural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself. (Emphasis supplied).

398. In saying this, however, I should make it clear that I am making a distinction between 'judicial power' and 'jurisdiction'. In a system where there is a trichotomy of sovereign powers, then ,ex necessitate rei from the very nature of things the judicial power must be vested in the Judiciary. But what is this judicial power. "Judicial Power" has been defined in the Corpus Juis Secundum, Volume XVI, paragraph 144, as follows:--

399. 'The Judiciary or judicial department is an independent and equal coordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of Government which is charged with the declaration of what the law is, and its construction, so far as it is written law.'

400. This power, it is said, is inherent in the Judiciary by reason of the system of division of powers itself under which, as Chief Justice Marshal put it, 'the Legislature makes, the Executive executes, and the Judiciary construes, the law.' Thus, the determination of what the existing law is in relation to something already done or happened is the function of the Judiciary while the pre-determination of what the law shall be for the regulation of all future cases falling under its provisions is the function of the Legislature."

8. It may be remembered that before 14th of August, 1947, the Indian Subcontinent was one country which was ruled by the Britishers. The Muslims of India through All India Muslim League and the Hindus on the strength of All-India Congress demanded the independence/liberation of the sub-continent from the slavery of the British. Needless to say that the view point of Congress was that only one nation lived throughout the length . and breadth of the sub-continent. On the contrary, the view of the Muslim League was that there was another nation which lived in the sub-continent. The Muslims of India constituted another nation and they had all the necessary attributes of a nation. They had everything uncommon with the Hindus. At the top of it; they had the burning desire to establish a separate homeland to live in accordance with the principles of Islam as contained in the Holy Qur an and the Sunnah of the Prophet (peace be upon him). Before the appearance of Quaid-e-Azam Muhammad Ali Jinnah as the undisputed leader of the Muslims of India, Dr. Allama Muhammad lqbal and so many other leaders of the Muslim community had already sowed the seed for creation of separate homeland. The famous Allahabad address of Allama Muhammad lqbal is very essential to be quoted here, in order to .understand the Pakistan Movement in its proper perspective. It may be seen that State of Jammu and Kashmir was also included in the proposal to have a homeland for the Muslims. Ishtiaq Hussain Qureshi in his book "The Struggle for Pakistan" in Chapter 6 under the head "The Movement for Pakistan" mentions as under:--

401. "The changing attitude of the Muslim League towards the Constitutional issues between 1938 and 1940 provides an interesting study. The League's Policy underwent a radical change regarding the provinces as well as the Centre in the light of Muslim experience of the provincial autonomy--particularly in. the Hindu majority provinces.

402. In December 1938, at its annual session at Patna, the All-India Muslim League authorized Jinnah 'to explore the possibility of a suitable alternative which would completely safeguard the interests of Musalmans and other minorities in India': In pursuance of this resolution, in March, 1939, the League Working Committee appointed a committee under Jinnah's presidentship, 'to examine various schemes already propounded and those that may be submitted hereafter' and to report to the Working Committee their conclusions.

403. Thus by the beginning of 1940 Muslim politics had decidedly taken a new and significant turn. The departure from the pre-1937 Policy was remarkable. The Muslims no longer wanted an Indian federation. No longer was it a question of merely voting in favour of or against a certain (or even any) federal scheme. Federation would not do at. all. The greater the Hindus laid emphasis on a strong centre the greater grew the Muslim revulsion to any centre. The more the Congress emphasized the principle of majority rule, the more the Muslims talked of Muslim self-determination. As Congress travelled towards the idea of a united India so did the League turn towards 'Muslim independence'. The political unity of India, which had been taken for granted by the Muslim League before 1937, was no longer looked upon as an axiom. Hindu insistence on unity and nothing but unity had produced the Muslim reaction of opposing this unity at any price. The Indian political situation had undergone a fundamental, basic, vital change. Never again was it to be the same.

404. Before the All India Muslim League passed its historic Lahore (or Pakistan) Resolution in March, 1940, the establishment of a separate Muslim State or States in this subcontinent had been advocated by some public figures. What follows in this section is a rapid survey of the contributions of these harbingers of Pakistan.

405. The concentration of Muslim majorities in the north-west and north-east of the sub-continent could not remain unnoticed by political thinkers. Saiyid Jamaluddin AI-Afghani, the famous worker in the cause of world Islamic unity, first 'thought of the possibility of a Muslim Republic embracing the present Central Asian Socialist Republics, Afghanistan and the Muslim majority areas in the north-west of the sub-continent.

406. It is claimed by Chaudhary Rahmat Ali that as early as 1915 he said in an address to Bazm-i-Shibli that 'North of India is Muslim and we shall keep it Muslim. Not only that. We will make it a Muslim State. but this we can do only if and when we and our North cease to be Indian. For that is a prerequisite to it. So, sooner we shed 'Indianism' the better for us and for Islam.'

407. Soon after in 1917 Dr. Abdul Jabbar Kheiri and Professor Abdul Sattar Kheiri, generally known as Kheiri Brothers, suggested a plan of the partition of India in the Stockholm Conference of the Socialist International.

408. In March and April, 1920, the Dhu'1-Qurnain of Badaun published an open letter from one Muhammad Abdul Qadir Bilgrami to Gandhi advocating partition of the sub-continent, in which he gave even a list to the Muslim districts, which is, generally speaking, not too different from the present boundaries of East and West Pakistan. These letters seem to have attracted some notice because they were later published in the form of a pamphlet which ran into two editions. The second edition is dated December, 1925.

409. In the early days of the First World War one Lovat Fraser who had been Editor of the Times of India published a map in The Daily Express of London in which he drew an arrow from Constantinople to Saharanpur, a city in the present Indian State of Uttar Pradesh, showing a Muslim 'corridor' where the Muslim were in a majority.

410. The President of the Hindu Mahasabha, Savarkar, frequently referred to the Hindus and the Muslims as two nations. Another prominent member of the Congress as well as the Hindu Mahasabha, Lala Lajpatrai, suggested the partition of India in 1924.

411. In 1923, Sardar Muhammad Gul Khan of the district of Dera Ismail Khan of the North-West Frontier Province advocated before the Frontier Inquiry Committee the division of India between the Hindus and the Muslims, allocating to the Muslims the area from Peshawar to Agra. Muhammad Ali was severely criticized by the Hindu members when in supporting a resolution for the introduction of reforms in the North-West Frontier Province he mentioned the existence of the 'Muslim corridor' mentioned by Lovat Fraser. He upheld stoutly, in an article in his review, The Comrade, the right of self-determination of any areas in the North-West Frontier. He was quite clear that the principle of self-determination could not be applied only to areas situated in the heart of India because then separation would be physically impossible.

412. This was in line with his thinking because he said in the Round Table Conference that 'the Musalmans constitute not a minority in the sense in which the late war and its sequel has habituated us to consider European minorities. A community that in India alone must be numbering more than seventy millions cannot be called a minority.'

413. In 1928 Aga Khan III advocated independence for each province at the Calcutta meeting of the All Parties Convention.

414. Sir Muhammad Iqbal is generally credited with initiating the idea of separation. As has been mentioned, there were people before them who advocated partition, but lqbal was the first important public figure to propound the idea from the platform of the Muslim League. In his presidential address to the League's annual session at Allahabad in 1930, he discussed the problem of India at length. The salient points of his address are summarized below in almost in his own words:

415. 'The various caste-units and religious units in India have shown no inclination to lose their individualities in a larger whole. Each group is intensely jealous of its separate' existence. The formation of the kind of moral consciousness which constitutes the essence of a nation is not possible in India. India is Asia in miniature. If the principle, that the Muslims are entitled to full and free development on the lines of their own culture and traditions in their own India homelands is recognized as the basis of a permanent communal settlement, they will be ready to stake their all for the freedom of India. Communalism, in the higher sense, is indispensable to the formation of a harmonious whole in India. The units of Indian society are not territorial. The principles of European democracy cannot be applied to India without recognizing the fact of, communal groups. The Muslim demands for the creation of a Muslim India within India is, therefore, perfectly justified. Thus, possessing full opportunity of development within its body politic, the Muslims of the North-West will prove the best defenders of India against any foreign invasion, be that invasion one of ideas or of bayonets. A unitary form of Government is simply unthinkable in a self-governing India. What is called 'residuary powers' must be left entirely to self-governing States. I would never advise the Muslims of India to agree to a system, whether of British or of Indian origin, which negatives the principles of a true federation, or fails to recognize them as a distinct political unit. A redistribution of British Indian, calculated to secure a permanent solution of the communal problem, is the main demand of the India Muslims."

416. The following portion of the address is quoted verbatim

417. "The Muslim demand for the creation of a Muslim India within India is, therefore, perfectly justified. The resolution of the All Parties Muslim Conference at Delhi, is, to my mind, wholly inspired by this noble ideal of a harmonious whole which, instead of stifling the respective individualities of its component wholes, affords them chances of fully working out the possibilities that may be latent in them. And I have no doubt that this House will emphatically endorse the Muslim demands embodied in this resolution. Personally, I would go further than the demands embodied in it. I would like to see the Punjab, NorthWest Frontier Province, Sindh and Balochistan amalgamated into a single State. Self-Government within the British Empire or without the British Empire, the formation of a consolidated North-West Indian Muslim State appears to me to be the final destiny of the Muslims, at least of North-West India."

418. Some writers have taken Iqbal to mean that he wanted only a consolidated Muslim unit within the confederation of India but this is incorrect. If that were so, he would not have mentioned self Government within the British Empire or without it. A resolution of the All-Parties Muslim Conference was, in his view, a demand for the autonomy of Islam within a free India. That is the reason why he prefaced his remark by saying that personally he would like to go even further which could mean only independence. In the Third Round Table Conference lqbal pleaded that there should be no Central Government in the sub-continent and that the provinces should be autonomous and independent dominions.

419. Iqbal did not give name to his projected Muslim State. That was the work of Rahmat Ali, to whom we now turn again. In January 1933, Chaudhary Rahmat Ali and his three colleagues in Cambridge, issued a pamphlet entitled 'Now or Never', in which the idea of Partition was reiterated. They wanted a separate Muslim State in India, Pakistan, comprising the Punjab, the N.-W.F.P., Kashmir, Sindh and Balochistan. They opposed the Federal Constitution then on the anvil and said that Muslim delegates to the Round Table Conference could not speak for their community. 'India is not the name of one single country, 'nor the home of one single nation. It is, in fact, the designation of a State created for the first time in history by the British.' Regarding Hindu Muslim differences, they stated 'we do not inter-dine, we do not inter-marry. Our national customs and calenders, even our diet and dress are different.' The Muslims 'demand the recognition of a separate national status... There can be no peace, and tranquillity in this land if we, the Muslims, are duped into a Hindu-dominated Federation where .we cannot I be the masters of our own destiny and captains of our souls'.

420. Simultaneously Rahmat Ali founded the Pakistan National Movement aimed at translating his ideas into achievement. A good elaboration of his ideas is to be found in his statement in the Supreme Council of the Pakistan National Movement in 1940. In it he underlined the menace of what he called 'Indianism'. It had corrupted Islam spiritually and morally. It had depressed the Muslims, politically and economically. It had deprived the Muslims of national sovereignty and reduced them to a 'minority community'. The Millat of the Muslims should have nothing to do with India. North-West India should make up the nation-state of Pakistan. But- that was not enough. Muslims living in other parts of India should also be set free. Bengal and Assam should form another Muslim State of Bang-i-Islam. The Nizam's dominion in Hyderabad must be another State name Usmanistan. These three States should then form a triple alliance.

421. Dr. Sayyid Abdul Latif of Hyderabad believed, like the Muslim League and Chaudhry Rahmat Ali, that India was not a nation, but he thought, unlike them, that partition was not a desirable solution. In two books he expressed his own ideas on the political future of India. He divided India into for cultural zones for the Muslims and eleven for the Hindus The Muslim zones were North-West Block consisting of Sindh Balochistan the Puniab N -W F P and the States of Khairpur and Bahawalnur North East Block comprising Eastern Bengal and Ass am. Dehli-Lucknow Block and the Deccan Block. The Indian States scattered all over India were to be distributed among the different zones in accordance with their natural affinities. Each zone will form a homogeneous State with a highly decentralized form of Government within ...but fitting alongwith similar States into an All-India Federation'. The exchange of population was considered to be inevitable. The Author claimed that his scheme was "more thorough going and scientific, because according to the Congress ideal, cultural distribution is to follow lingusitic lines, whereas under this, the cultural lines are fuller, comprehending the linguistic as well'. . The Congress proposal gave no cultural autonomy to the Muslims, while under this scheme every cultural unit, Hindu or Muslim, was 'given a homeland of its own, where it may develop on its own lines in a spirit of goodwill towards every other unit'. Further, it offered to the smaller minorities 'cantonal lines' if they so desired. The scheme, concluded its framer, was a 'scheme for unity and not for disruption'.

422. His final and transitional scheme of Constitution may be summarized by saying that a federation of the existing ,Provinces and States must be established, with the powers of the Centre reduced to the minimum. Both at the Centre and in the Provinces 'composite stable executives' were to replace the purely Parliamentary system. Separate electorates should be retained, alongwith the existing Muslim strength in the provincial Legislatures. At the Centre the Muslims were to have one-third representation. Zonal boards were to work out common policies and to prepare the way to an ultimate Constitution.

423. Sir Abdullah Haroon, a Muslim League Leader of Sindh, presented his own proposals in the autumn of 1938. In a foreword that he wrote for Latif's The Muslim Problem in India, he suggested the division of India into two separate federations, 'each reflecting the strength of one of the two major communities'. The Muslim federation would consist of North-West Indian Provinces and Kashmir. He was silent on the future of Bengal and Assam.

424. The following year, another writer, writing under the pseudonym of 'A Punjabi', put forward his solution in this field. Without conceding the necessity of a mass transfer of population, he divided India into five 'countries': the Indus Region, the Hindu India (comprising all areas not covered by other 'countries'), Rajasthan (consisting of Rajputana. and Central India), the Deccan States (Hyderabad and Mysore), and Bengal (minus its Hindu districts plus parts of Assam). All these 'countries' would be federations in themselves. He did not accept the principle of outright separation: there should be no break away from India: 'ultimately our destiny lies within India and not out of it'. Muslims would think of separation only if the Hindus would force it upon them. They should be 'separationists-cum-confederationists'. These five 'countries' should be 'reassembled' in a 'Confederacy of India'. However, the Confederacy would not control the fiscal policy of the whole country. The five 'countries' would equally share the cost of defence.

425. The next proposal came from Sir Sikandar Hayat Khan, the Chief Minister of the Punjab. In a pamphlet entitled Outline of a Scheme of Indian Federation, which he issued in July, 1939, he began by acknowledging that the Federal Scheme embodied in the 1935 Act was not acceptable to any section of Indian political opinion. The problem, he said, was 'whether it is possible to devise a Federal Scheme to replace the one envisaged by the Framers of the Government of India Act, which would satisfy and compose the conflicting interests of the various communities and classes, or at least command a larger measure 'of support than the present scheme'. His solution to this problem was the division of the sub-continent into seven areas: (1) Assam plus Bengal plus Bengal States plus Sikkim, (2) Bihar plus Orissa, (3) United Provinces plus U.P. States, (4) Madras plus Travancore plus Madras States and Coorg, (5) Bombay plus Hyderabad plus Western Indian States plus Bombay States plus Mysore and C.P. States, (6) Rajputana States plus Gawaliar plus Central Indian States plus Bihar and Orissa States plus Central Provinces and Berar, (7) The Punjab plus Sindh plus N.-W.F.P. plus Kashmir plus the Punjab States plus Balochistan plus Bikaner and Jaisalmer. Each zone was to have a Legislature, and all zonal assemblies were collectively to constitute the Central Federal Assembly, one-third, of whose membership was to be Muslim. The Federal Executive was to consist of the Governor-General and a Council of Ministers. The Council would have at least one-third Muslim personnel. The subjects given to the Federation were Defence. External Affairs, Communications, Customs, Coinage and Currency. In his opinion a United Indian Federation of this kind would acquire Domination Status with the minimum of delay.

426. This problem of a Constitutional alternative to the 1935 Act was agitating the minds of many Muslims, and in the same year two professors of the Muslim University of Aligarh published their suggestions in a booklet. They started with the axioms that the Indian Muslims were 'a nation by themselves', that their future lay in complete freedom from the domination of the Hindus, the British, or for the matter of that, any other people', and that the Muslim Provinces could not be forced to join a single all-India Federation. This led to the conclusion of dividing India into three separate and independent and sovereign States, viz., (1) North-West India, including the Punjab, the N.-W.F.P., Sindh and Balochistan; (2) Bengal, including the Purnea District of Bihar and the Sylhet Division of Assam but excluding the Districts of Howrah, Midnapore and Darjeeling; (3) Hindustan, comprising the rest of India, but having two newly-created autonomous provinces of Delhi and Malabar. Every city with a population of 50,000 or more was to be a free city. Hyderabad would be a sovereign State. The North-West Federation would be a Muslim State and 'may well be called 'Pakistan''. These three States of Pakistan, Bengal and Hindustan should enter into a 'defensive and offensive alliance'. Each of these would have separate treaties of alliance with Great Britain. They would have a joint Court of Arbitration 'to settle any dispute that may arise between themselves or between hem and the Crown'. (Emphasis supplied).

427. In this scenario, Quaid-e-Azam Muhammad Ali Jinnah finally and unequivocally demanded that the areas where the Muslim were in majority be declared a separate country from India. Both the political parties opposed each other tooth and nail throughout the pre-independence period. The Muslims of India were united solidly under the banner of Muslim League. Their main demand/cry was for establishment of a separate homeland for the Muslims. In this connection the Muslim League on 23rd of March, 1940 in a session of All-India Muslim League, at Lahore adopted a historic resolution which was called the Pakistan Resolution. Another resolution was adopted by the Muslim League on 9th of April, 1946. These resolutions are:-

428. "On 23rd March, 1940, the following resolution was moved but Maulvi Fazlul Haque, the Chief Minister of Bengal, and it was adopted unanimously: 'While approving and endorsing the action taken by the Council and the Working. Committee of the All-India Muslim League, as indicated in their resolutions dated 27th of August, 17th and 18th of September and 22nd of October 1939, and 3rd of February, 1940 on the Constitutional issue, this session of the All-India Muslim League emphatically reiterates that the scheme of federation embodied in the Government of India Act, 1935, is totally unsuited to, and unworkable in the peculiar conditions of this country and is altogether unacceptable to Muslim India.

429. "It further records its emphatic view that while the declaration, dated the 18th of October, 1939 made by the Viceroy on behalf of His Majesty's Government is reassuring in so far as it declares that the policy and plan on which the Government of India Act, 1935, is based will be reconsidered in consultation with the various parties, interests and communities in India, Muslim India will not be satisfied unless the whole Constitutional plan is reconsidered de novo and that no revised plan would be acceptable to the Muslims unless it is framed with their approval land consent.

430. 'Resolved that it is the considered view of this Session of the All-India Muslim League that no Constitutional plan would be workable in this country or acceptable to the Muslims unless it is designed on the following basic principles, viz., that geographically contiguous units are demarcated into regions which should be so constituted with such territorial readjustments as may be necessary, that the areas in which the Muslims are numerically in a majority as in the North-Western and Eastern Zones of India should be grouped to constitute 'independent State' in which the constituent units shall be autonomous and sovereign'. (Emphasis supplied).

431. "That adequate, effective and mandatory safeguards should be specifically provided in the Constitution for minorities in these units and in the region for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them and in other parts of India where the Mussalmans are in a minority adequate, effective and mandatory safeguards shall be specifically provided in the Constitution for them and other minorities for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them." '

432. "Resolution of the Muslim League Legislators' Convention on the Pakistan Demand, 9th April, 1946

433. "Whereas, in this vast sub-continent of India a hundred million Muslims are the adherents of a faith Which regulates every department of their life (educational, social, economic and political) whose code is not confined merely to spiritual doctrines and tenets or rituals and ceremonies and which stands in sharp contrast to the exclusive nature of Hindu Dharma and philosophy which has fostered and maintained for thousands of years a rigid caste system resulting in the degradations of 60 million human beings to the position of untouchables creation of unnatural barriers between man and man and superimposition of social and economic inequalities on a large body of the people of this country, and which threatens to reduce Muslims. Chiristians and other minorities to the status of irredeemable helots socially and economically;

434. Whereas the Hindu caste system is a direct negation of nationalism equality, democracy and all (the) noble ideas that Islam stands for;

435. Whereas different historical backgrounds, traditions cultures social and economic orders of the Hindus and Muslims have made impossible the evolution of a single Indian nation inspired by common aspirations and ideals and whereas after centuries they still remain two distinct major nations. (Emphasis supplied).

436. Whereas, soon after the introduction by the British of the policy of setting up political institutions in India on the lines of Western democracies based on majority rules, which meant that the majority of one nation or society could impose its will on the majority of the other nation or society in spite of their opposition, as was amply demonstrated during the two and a half years' regime of Congress Governments in the Hindu-majority Provinces under the Government of India Act, 1935, when the Muslims were subjected to untold harassment and oppression as a result of which they were convinced of the futility and ineffectiveness of the so-called safeguards provided in the Constitution and in the Instrument of Instructions to the Governors and were driven to the irresistible conclusion that in a united Indian Federation, if established, the Muslims, even in majority Provinces, would meet with no better fate and their rights and interests could never be adequately protected against the perpetual Hindu majority at the Centre;

437. Whereas the Muslims are convinced that with a view 7o save Muslim India from the domination of the Hindus and in order to afford them full scope to develop themselves according to their genius, it is necessary to constitute a sovereign independent State, comprising Bengal and Assam in the North-East Zone and the Punjab, North-West Frontier Province, Sindh and Balochistan-in the North-West Zone;

438. This Convention of the Muslim League Legislators of India, Central and Provincial, after careful consideration hereby declares that the Muslim Nation will never submit to any Constitution for a United India and will never participate in any single Constitution-making machinery set up _for the purpose, and that any formula devised by the British Government for transferring power from the British to the peoples of India, which does not conform to the following just and equitable principles calculated to maintain internal peace and tranquillity in the country, will not contribute to the solution of the Indian problem:

1. That the zones comprising Bengal and Assam in the North-East and the Punjab, North-West Frontier Province, Sindh and Balochistan in the North-West of India, namely, Pakistan zones, where the Muslims are in a dominate majority, be constituted into a sovereign independent State and that an unequivocal undertaking be given to implement the establishment of Pakistan without delay;

2. That two separate Constitution-making bodies be set up by (the) peoples of Pakistan and Hindustan for the purpose of framing their respective Constitutions;

3. That the minorities in Pakistan and Hindustan be provided with safeguards on the lines of the All-India Muslim League Resolution passed on the 23rd March, 1940, at Lahore;

4. That the acceptance of the Muslim League demand of Pakistan and its implementation without delay are the sine qua non for the Muslim League cooperation and participation in the formation of an Interim Government at the Centre.

439. This Convention further emphatically declares that any attempt to impose a Constitution on a united India basis or to force any interim arrangement at the Centre, contrary to the Muslim League demand, will leave the Muslims no alternative but to resist such imposition by all possible means for their survival and national existence. "

440. The above resolutions stated in the clearest possible terms and understanding that the Muslims of India constituted a separate nation and as such a separate country had to be set up for them on the basis of their right of self-determination. By that time, it had already come out to be believed by the whole world that the Muslims were separate from the Hindus culturally, historically and religiously. For the implementation of the said resolution, the Muslims of India struggled very hard. They rendered innumerable sacrifices to get Pakistan. About 10 millions of the Muslims from the minority areas came to live in Pakistan on permanent basis. This was unparallel in the world history where population at such a colossal scale had migrated from one country to live in another country. The Muslims in lacs embraced martyrdom for the cause of Pakistan. Pakistan was, therefore, undoubtedly achieved in the name of Islam. In this behalf, it shall be useful to refer to some of the historic speeches delivered by the Quid-e-Azam to make "Pakistan" in the name of Islam. On 18-3-1944, while addressing the Conference of the Punjab Muslim Students' Federation, he observed:-

441. "The claim that 99 per cent. of the Muslims of India, whether they were members of the League or not, were behind the League was put forward but Mr.M.A. Jinnah, inaugurating the annual conference of the Punjab Muslim Students' Federation at a specially-built pandal on the grounds of the Islamia College.

442. Mr. Jinnah, in a 80-minute oration, which was frequently punctuated with cheers, reviewed the progress of the League during the last seven on eight years, and said that there was no shadow of doubt that the Muslim League was the only representative body of Muslims in India. As a result of the hard struggle, perseverance, and sustained efforts, in spite of all difficulties and opposition, the League had undoubtedly given platform to Muslim India which was never known in the history of India before. It had given a flag under which 99 per cent. of Muslims whether they were members of the League or not were behind the League. The League had given them a definite goal and taken them out of darkness and confusion and given them a clear-cut and crystallised goal of Pakistan which was now an article of faith with the Muslims, millions of whom were prepared to fight with their lives for its achievement. It was no more a slogan--it was something which the Muslims had understood, and in it lay their defence, deliverance, and destiny which would once more ring to the world that there was a Muslim State which would revive the past glories of Islam, 'We want to rule our homeland, and we shall rule,' he declared."

443. He concluded his speech stating:-

444. "Our bedrock and sheet-anchor is Islam. There is no question even of Shias and Sunnis. We are one and we must move as one nation and then alone we shall be able to retain Pakistan. He declared that the caste system was responsible for the slavery of India and warned those who were trying these sinister methods."

445. On another occasion, he addressed the Muslims in the following words:-

446. "This is the fourth year since we passed our Pakistan Resolution on March 23, 1940, and this golden day has been ever since observed every year by the Muslim Nation all over this sub-continent.

447. "I have no doubt that this year it will be observed as enthusiastically and wholeheartedly as in the past. Every year that passes the Muslim League is going forward from strength to strength, and our organisation is tackling great questions and issues in every department of life-educationally, economically, socially and politically. We are nearer realisation of our goal of Pakistan and the achievement of our freedom than ever before.

448. "I am sure that I am speaking on your behalf when I say that Muslim India will not rest content until we have realised our goal. Our goal is clearly indicated in the famous Lahore Resolution of the All-India Muslim League, and it is the only solution of the political problem of India, and it is a proposal that will bring universal peace. It will make the two major nations in this country happier, and in that direction lies the achievement of freedom of both Hindus and Musalmans."

449. While addressing the students of the Islamia College for Women, he said:- "that he was really gratified to learn that the right type of education was being given to Muslim girls. He said that many impurities and un Islamic things had crept into the Muslim society, and it was the task of Muslim educational institutions to educate their children on right lines with a view to enabling them to live the Islamic life."

450. What is Pakistan? The Quaid-e-Azam said:-

451. "Defining Pakistan Mr. Jinnah said, ' We want to get rid of the British but we dont's want the change of masters. Let 3/4th of India belong to Hindus where they can rule as they wish and let Muslims have 1 /4th of India where they are in majority. Let us both be free. What is terrible about it?

452. Mr. Jinnah said that Messrs Gandhi, Nehru, Patel and others should give up their ugly dream of ruling over whole of India which has been finally ended. ' I have dashed it to the ground', he said.

453. Barring a few quislings, Mr Jinnah said, all Muslims stood for Pakistan.

454. Concluding, Mr. Jinnah made a fervent appeal for giving their verdict in favour of Pakistan by returning League candidates to the Frontier Assembly, 'Now you . must not fail your nation and we shall have Pakistan, Insha-Allah.'

455. On the question of framing Constitution, the Quaid-e-Azam said:

456. "Muslim India will never accept any method of framing the Constitution of India by means of one Constitution-making body for all India, in which the Musalmans will be in a hopeless minority, and the conclusions are foregone in such an assembly nor will they agree to a Constitution, federal or otherwise, with one centre, in which, again, they will be in a hopeless minority and will be at the mercy of the perennial Hindu majority domination.

457. Further, any attempt to set up a provisional Government at the centre, which would in any way prejudice or militate against the Pakistan demand, will not be acceptable to us, as the thin end of the wedge, as it is sought by Hindu India under the term of the provisional 'National' Government of India.

458. If the Labour Government wishes to prove its bona fides to give freedom to the peoples of this sub-continent, they must face realities and facts as they are.

459. First, the Hindus and the Musalmans are two major nations living in this sub-continent, and there are Muslim provinces and Hindu provinces, and it is high time that the British Government applied their mind definitely to the division of India and the establishment of for Musalmans and complete domination of the imperialistic Caste Hindu Raj throughout this sub-continent, and this is what the Hindu Congress seeks to attain by constant threats to all and every day and this is what we are determined to resist with all that lies in our power."

460. What Pakistan means? .... The Quaid-Azam observed

461. "In the North-West and North-East Zones of India which are our homeland and where we are in a majority of 70 per cent. against Caste Hindus, we want a separate State of our own. There we can live according to our own notions of life. The differences between Hindus and Muslims are so fundamental that there is nothing that matters in life upon which we agree.

462. It is well known to any student of history that our heroes, our culture, our language, our music, our architecture, our jurisprudence, our social life are absolutely different and distinct. We are told that India has been one for a long time. I tell you that the so-called one India is British made. It was made by the sword. It can only be held by the sword as it has been held... Do not be misled by anyone saying that India is one and why, therefore, should it not continue to be one. What we want I tell you is Pakistan. Pakistan presupposes that Hindustan should also be a free State." '(See Speeches and Writings of Mr. Jinnah collected and edited by Jamil-ud-Din Ahmad, Volume II, pages 20-21, 24, 27-28, 31, 256-257, 259-260, 389-290.)

463. In the faithful compliance of this glorious background, several provisions relating to Islam, have been incorporated in the Constitution of Islamic Republic of Pakistan, 1973. Article 2 states that Islam shall be the State religion of Pakistan. Article 2A makes the principles and provisions set out in the Objectives Resolution as substantive part of the Constitution which are:-

464. "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;

465. This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;

466. Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

467. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;

468. Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah;

469. Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures;

470. Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and. authority as may be prescribed;

471. Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

472. Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

473. Wherein the independence of the Judiciary shall be fully secured

474. Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;

475. So, that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity. "

476. Article 31 states

477. "(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah.

(2) The State shall endeavour, as respects the Muslims of Pakistan--

(a) to make the teaching of the Holy Qur'an and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Qur'an;

(b) to promote unity and the observance of the Islamic moral standards; and

(c) to secure the proper organisation of Zakat (Ushr), Auqaf and Mosques. "

9. It has been provided under Article 40 that the State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means". President of Pakistan shall necessarily be a Muslim under Article 41. In the National Assembly of Pakistan representation has been given to all the religions by reserving seats in accordance with their population under Article 51. Articles 62 and 63 provide that only those Muslims shall become Members of the Parliament who are of good character and have adequate knowledge of Islamic teachings. Under Chapter 3-A, Federal Shariat Court has been set up to perform functions relating to Islam. In Part IX vide Articles 227 to 231 provisions relating to Qur'an and Sunnah have been mentioned. In pith and substance, it has been stated that the Muslims shall be enabled to order their lives in the individual and the collective spheres in accordance with the teachings and requirements of Islam as set down in the Holy Qur'an and the Sunnah. `

10. The very basis for creation of Pakistan is, therefore, Islam. Islam cannot be divorced/separated from the idea of Pakistan. If there were no Muslims in the sub-continent, no question for creation of Pakistan could have arisen in this part of the world. This being so, provision of Articles 2, 2A and others will reflect the historical background of the creation of Pakistan. In other words, the sub-continent has been divided on the basis of two-nation theory which even today is very much important and relevant for all intents and purposes. Likewise, the territories which have been included (vide Article 1) in the Islamic Republic of Pakistan cannot be excluded by any amendment to the Constitution. Apart from the above, a specific Article 257 has been enacted by the Parliament which relates to the people of State of Jammu and Kashmir. Article 1 has to be read with Article 257 of the Constitution. In case, people of the State of Jammu and Kashmir decide to accede to Pakistan the relationship between Pakistan and that State shall have to be determined in accordance with the wishes of the people of that State. Pakistan is the champion for the cause of liberation of the people of Jammu and Kashmir primarily on the basis of two nation theory. In these circumstances, the Parliament of Pakistan shall not be competent to change/amend the aforesaid provisions of the Constitution for the reason that, in case, it is allowed to do so, the very foundation of Pakistan shall altogether be shaken. The whole superstructure having been raised on the strength of Pakistan Resolution adopted on 23rd of March, 1940 may collapse like a house of cards. Apart from the above, Article 3 has forbidden all forms of exploitation. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen under Article 4. In return, every citizen is bound to be loyal to the State under Article 5. Our Constitution has given guarantee under Article 9 that no citizen shall be deprived of his life or liberty save in accordance with law. In any form, slavery and forced labour have been forbidden under Article 11. The dignity of man, of course, subject to law and the privacy of home, shall be inviolable under Article 14. This right that all are equal before law has been given to all citizens on the basis of Article 25. These provisions alongwith the above noted 'Islamic provisions are the very foundation on which the Constitutional structure has been raised. In my humble view, the Parliament has no powers to repeal or alter these provisions because of their importance, especially, keeping in view the background of Pakistan Movement and thinking on human rights in the modern world.

11. Now coming to the impugned amendment, I hold the view that it shall help the democratic system to run smoothly and successfully. In the party meetings, all the members are free to discuss their views over the issues which are the subject of such meetings. However, once, after full debates/ discussions, a decision is taken by majority of the members, it shall bind them. It may be stated that the party Head has to honour the views of the majority while taking the decision on the crucial issues of national importance. In my view, under the impugned amendment, the party Head has not been permitted to act like a dictator. At any rate final decision is to be taken by the party Head after due compliance of the procedure laid down in the amendment. I, therefore, do not think that the amendment shall, in any way, offend the provisions of Articles 16, 17 and 19. Once a mandate is given by the majority of the Members on an issue in a free and conducive atmosphere, it has to be complied with faithfully by all the Members. If such a decision is violated, then, of course, competent Authority in the political party may take action against the Member/Members who is/are proved to be guilty of violation of party discipline after hearing them.

478. There is nothing to suggest that such a course shall violate the fundamental right of the members of the political party who are held to been the violators of the party discipline. It may be noticed that rules of democracy cannot be practised/acted upon for the welfare of the people without having complete recourse to discipline which is one of the famous catchwords of Quaid-eAzam Muhammad Ali Jinnah i.e., Unity, Faith and Discipline. On these great sayings which are of utmost importance for the whole nation, the founder of Pakistan observed:

479. "Quaid-i-Azam Muhammad Ali Jinnah referring to a passage in the address of welcome presented by the Divisional Superintendent and officers of the North-Western Railway on December 28, 1947 which stated, 'we beg to assure you that we shall follow you through sunshine and fire', said:

480. 'We are going through fire: the sunshine has yet to come. But I have no doubt that with unity, faith and discipline we will not only remain the fifth largest State in the world but will compare with any nation of the world. Are you prepared to undergo the fire? You must make up your mind now. We must sink individualism and petty jealousies and make up our minds to serve the people with honesty and faithfulness. We are passing through a period of fear, danger and menace. We must have faith, unity end discipline." (See page 453 of the "Selected Speeches and Statements of the Quaid-i-Azamd Muhammad Ali Jinnah" (1911- 34 and 1947-48) by M. Rafique Afzal).

481. 12: With these observations, I respectfully agree with the view expressed by the Hon'ble Chief Justice in the leading judgment.

482. (Sd. )

483. Raja Afrasiab Khan, J.

484. MAMOON KAZI, J.---I have had the privilege of foregoing through the judgment of My Lord, the Chief Justice, proposed to be delivered in this case. Although, I find myself in agreement with most of the observations made in this judgment, but I may say with utmost respect that I am unable to pursuade myself to agree with the conclusions arrived at by the learned Chief Justice. I am therefore, appending this separate note.

2. These petitions, which have been filed under Article 184(3) of the Constitution, raise important Constitutional issues of far-reaching consequences, viz., whether any Constitutional amendment made by the Parliament can be struck down as void and unenforceable on the ground that it violates the basic structure of the Constitution or any of the Fundamental Rights guaranteed by it and whether Article 63A which has been recently incorporated in the Constitution by an amendment is liable to be struck down for the said reasons.

485. Article 63A which came into force on 4-7-1997 by Constitution (Fourteenth Amendment) Act, 1997 provides as under:-

486. "63A. Disqualification on ground of defection, etc.---If a member of a Parliamentary Party defects, he may by means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorised in this behalf by the Head of the Political Party, be called upon to show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice is issued under this clause, the Presiding Officer of the concerned House shall be informed accordingly.

487. Explanation.--A member of a House shall be deemed to defect from a Political Party if he, having been elected as such, as a candidate or nominee of a Political Party, or under a symbol of Political Party or having been elected otherwise than as a candidate or nominee of a Political Party, and having become a member of a Political Party after such election by means of a declaration in writing-

(a) commits a breach of Party discipline which means a violation of the Party constitution, code of conduct ,and declared policies, or

(b) votes contrary to any direction issued by the Parliamentary Patty to which he belongs, or

(c) abstains from voting in the House against party policy in relation to any Bill.

(2) Where action is proposed to be taken under the Explanation to clause (1), sub-clause (a), the disciplinary committee of the party, on a ,reference by the Head of the Party, shall decide the matter, after giving an opportunity of. a personal hearing to the member concerned within seven days. In the event the decision is against the member, he can file an appeal, within seven days, before the Head of the Party, whose decision thereon shall be final. In cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not. that member has defected.

(3) The Presiding Officer of the House shall be intimated the decision by the Head of the Political Party in addition to intimation which shall also be sent to the concerned member. The Presiding Officer shall within two days transmit the decision to the Chief Election Commissioner. The Chief Election Commissioner, shall give effect to such decision, within seven days from the date of the receipt of such intimation by declaring that seat vacant and amend it under the schedule of the bye election.

(4) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(5) For the purpose of this Article-

(a) "House" means the National Assembly or the Senate, in relation to the Federation, and the Provincial Assembly in relation to the Province, as the case may be.

(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to the action under this Article. "

3. It is a common ground between the parties that floor crossing by members of Parliamentary Parties had come to be so meaningly engrained in our Political system that shifting of loyalties by members had become a matter of common occurrence. Therefore, there was a growing public demand for bringing legislation to effectively control this practice. It was in such background that the said legislation was passed.

4. Originally, section 8(2) of the Political Parties Act, 1962 provided for disqualification of a member of a Political Party in case of his withdrawal from such Political Party, but subsequently, this provision was omitted and a new section 8-B was introduced in the said Act with a similar object. Thereafter, many amendments were made in section 8-B, the last being made by Ordinance XXX of 1993. These amendments had earlier provided for a forum also in case an appeal was filed by an aggrieved member, but after expiry of Ordinance XXX of 1993 some doubts were entertained regarding enforceability of section 8-B. In Khawaja Ahmed Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646) observations were made by Shafiur Rehman, J. indicating a need for an effective legislation in this regard. The observations made by Shafiur Rehman, J. were once again noticed in Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473.

5. Section 8-B of the Political Parties Act became a subject-matter of controversy before this Court in the case of Humayun Safiullah Khan v. Federation of Pakistan (PLD 1990 SC 599) but the case was remanded to the Peshawar High Court for a fresh decision as the matter before this Court had arisen from a writ petition decided by that Court. The question once again came up for determination before this Court in the case of Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) where the controversy related to defection of certain members of the N.-W.F.P. Assembly and their consequent disqualification. It was, however, held by the majority of the Judges of this Court that the provisions of section 8-B, subsections (2) and (3), were in conflict with those of Article 63(2) of the Constitution as a different forum had been provided for in the said Article. It was, therefore, held that the provisions of Article 63(2) would prevail and the provisions of section 8-B of the Political Parties Act were thus rendered ineffective by the said judgment. In this background a need to make an effective legislation in this regard was felt by the people all over the country. Thus, the Constitution (Fourteenth Amendment) Act was passed unanimously by the Parliament which came into force on 5-7-1997 and Article 63A was inserted in the Constitution after Article 63.

6. Mr. Iftikhar Hussain Gilani and Dr. A. Basit, who have respectively addressed us on behalf of the petitioners in these petitions, have argued that, although Article 63A has ostensibly been introduced to prevent floor-crossing by members of Parliamentary Parties but paragraph (a) in the "Explanation" to clause (1) in the said Article indicates that it does not only purport to regulate conduct of a member of a Parliamentary Party in relation to proceedings within the Parliament but it also regulates his conduct as a member of such party outside the Parliament. Clauses (2) and (3) in the said Article vest the party Head with such plenary powers to take action against a member for an alleged breach of party discipline that his decision in the matter would be final. According to the learned counsel, any legislation which restricts freedom of expression and vests an authority with such arbitrary powers is discriminatory and thus violative of fundamental rights guaranteed by the Constitution. The impugned legislation has also been assailed by Mr. Iftikhar Hussain Gilani on the ground that it relates to lesser rights which cannot be reconciled with the provisions of Articles 4, 17, 19, 25 and 66 of the Constitution. Therefore, according to the learned counsel, the said amendment cannot be enforced. although, Mr. Iftikhar Hussain Gilani has only assailed paragraph (a) in the said "Explanation" but, according to Dr. A. Basit, the entire Article 63A is liable to be struck down as being violative of the basic structure of the Constitution. According to him, right of the people to be governed by their chosen representatives is one of the essential features of the Constitution of Pakistan. Any restrictions imposed by law on the right of an elected member of the Parliament to effectively articulate his views would therefore, be violative of the basic structure doctrine.

7. A preliminary objection has been raised by the learned Attorney General, challenging the locus standi, of the petitioners to file these petitions as according to him, none of the petitioners is an "aggrieved party". The petitioner in Civil Petition No.24 of 1997 is an Association of Lawyers and in the other petition, although the petitioner is a veteran politician but he is not a member of either the National Assembly or any Provincial Assembly, It may, however, be pointed out in this regard that, the question has already been dealt with by My Lord, the Chief Justice, in the proposed judgment and it is not necessary for me to go into this question again. Suffice it to say that, as was observed by the then Hon'ble Chief Justice in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), the impression that trappings of sub-Articles 1(a) and 1(c) of Article 199 are to be read with Article 184(3) of the Constitution is completely without substance. The words "make an order of the nature mentioned in the said Article" are referable only to the nature of the order in sub-Article 1(c) of Article 199, resulting in directions as may be appropriate for the enforcement of any of the Fundamental Rights. However, if a party chooses to invoke Article I 184(3), all that it would be required to show is that, the right sought to be i invoked is a Fundamental Right, involving an element of 'public importance'. The requirement that a Constitutional petition can be entertained by the Court only when it is filed by an 'aggrieved patty', though applicable to the High Court, is not applicable to this Court. In fact, in a case of public importance, any citizen can claim to be an aggrieved party before this Court. A similar objection was also raised in AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) before this Court but the same was repelled. In fact, the observations made in the two cases do not leave any room for any further controversy in this regard. The objection is, therefore, not tenable. .

8. Turning now to the contentions of Mr. Iftikhar Hussain Gilani and Dr.A. Basit the first contention is 'that paragraph (a) in the said "Explanation" to clause (1) of Article 63A cannot be enforced as it is violative of Articles 17, 19 and 25 of the Constitution. The impugned legislation, according to the counsel, undermines freedom of expression which is one of the essential postulates of democracy. The learned counsel have, therefore, argued that in presence of such oppressive provisions in the Constitution, no member of a Parliamentary Party can have courage to earn the displeasure of the party Head by opposing his decisions, be they against the interest of his constituents. Consequently, according to the learned counsel, such provisions are per se violative of the fundamental rights.

9. So far as the question, whether any provision of the Constitution can be tested on the touchstone of the basic structure doctrine is concerned, the judgments earlier delivered by the Courts in Pakistan no doubt, show that the proposition did not find favour with the Courts in Pakistan. However, the learned counsel have referred to a number of cases from the Indian jurisdiction, which indicate that the doctrine is now firmly entrenched in the Indian legal system.

10. Although in Sankari Prasad v. State of Behar (AIR 1951 SC 458) and Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), the power of the Parliament to amend the Constitution to curtail a fundamental right conferred by Part III of the Indian Constitution was upheld by the Supreme Court and the word "law" used in Article 13(2) of the Indian Constitution, which corresponds to Article 8 of the Constitution of Pakistan, was. held to be applicable only to ordinary legislation and not to an amendment in the Constitution, but subsequently in Golaknath v. State of Punjab AIR 1967 SC 1643 the Supreme Court by majority of six Judges to five upheld the contention that "law" within the meaning of Article 13(2) also includes an amendment in the Constitution and if the amendment conflicts with any provision of the Constitution guaranteeing a fundamental right, the same would be treated as void. A similar question once again arose in Kesavananda v. State of Kerala (AIR 1973 SC 1461) and once again the right of the Legislature to take away any fundamental right on the pretext of making laws to give effect to matters of State policy arid to take away the Court's power of judicial review of such legislation was under challenge. The majority of the Judges refused to uphold the right of the Parliament to pass legislation which had the effect of abrogating a fundamental right or to completely alter the essential features of the Constitution so as to destroy its identity. Although, the right of the Parliament to amend the Constitution was conceded but it was further held that such power was not unlimited so as to include the power to abrogate the Constitution and destroy its basic structure. However, six of the learned Judges did not agree with the majority view that there were limitations on the power of the Parliament which had been derived from Article 368 of the Constitution. However, in Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789), the Supreme Court of India was yet confronted by an issue, even more fundamental than what it had dealt with earlier. In this case the provisions .of the Constitution (42nd Amendment) Act were challenged. By section 55 of the said Act, Articles; 368 of the Indian Constitution was amended by addition of clauses (4) and.(5) therein which provided as under:-

488. "(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article (whether before or after the commencement of section . 55 of the Constitution (Forty-Second Amendment) Act, 1976 shall be called in question in any Court on any ground.

(5) For the removal of doubt, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article. "

489. It was unanimously held that the said amendment had been made in excess of power by the Parliament,. and therefore, it was void as it had damaged the essential features of the Constitution and destroyed its basic structure by a total exclusion of challenge to any law on the ground that it was inconsistent with or had taken away or abridged a right conferred by Article 14 or Article 19 of the Constitution. Learned counsel have also referred to the famous case of Smt. Indira Gandhi v. Raj Narain (AIR 1975 SC 2299) which came up before the Supreme Court of India in 1975. In this case Indira Gandhi was elected to Loksabha but her election was challenged by Raj Narain who was a contesting candidate. The election petition was allowed by the Election Tribunal and-the election was declared to be void. Sint. Indira Gandhi filed appeal before the Supreme Court but during its pendency, the Parliament passed 39th Amendment Act. Article 329-A in the Constitution provided that disputes over election of the Prime Minister and the Speaker would be resolved by the Parliament itself and it excluded election disputes involving the said functionaries from the purview of the ordinary law. The said amendment was held to be invalid by the Supreme Court as it violated the principle of free and fair election which was an essential postulate of democracy and a part of the basic structure of the Constitution. Reference has also been made to the case of P. Sambamurthy and others v. State of Andhra and another (AIR 1987 SC 663) wherein the provisions of clause (5) of Article 371-D introduced by Thirty-Second Amendment to the Constitution were held to be unconstitutional. In this case the proviso to the said clause (5), which empowered the Government to modify or annul any order passed by an Administrative Tribunal set up under clause (3) of the said Article, was held to be violative of the rule of law which was one of the essential features of the Constitution.

11. Reference may also be made in this regard to the judgment of the Supreme Court of Bangladesh (Appellate Division) in the case of Anwar Hussain Chaudhry v. Government of the People's Republic of Bangladesh (1989 BLD (Supplement) 1). In this case Constitution (Eighth Amendment) Act, 1988 which was enacted on 9-6-1988 providing that the High Court Division shall have permanent Benches at six different places was challenged before the Supreme Court of Bangladesh upon the ground that there were implied limitations on the power of the Parliament to amend the Constitution and constituent power was distinct from the legislative power. The main contention was that the Parliament in the purported exercise of its amending power was incompetent to alter the basic structure of the Constitution. The Supreme Court of Bangladesh allowed the petition by a majority of three to one and the said amendment was struck off as unconstitutional and being violative of the basic structure doctrine.

12. Reference to these cases indicates that in spite of the initial opposition by some of the learned Judges, the basic structure doctrine has been consistently applied in India. However, this concept has so far remained alien to the Courts in Pakistan. In State v. Zia-ur-Rehman (PLD 1973 SC 49), it was observed by Hamoodur Rehman, C.J.:

490. "I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the Judiciary as the Constitution of the country, the Judiciary can claim to declare any of its provisions ultra vires or void. "

491. Again in the same judgment, the Chief Justice observed:-

492. "This does not, however, mean that the validity of a Constitutional measure can be tested in the Courts. If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional document."

493. The contention that the Objectives Resolution passed by the founding fathers was a grund norm' or 'the cornerstone' of Pakistan's legal edifice was repelled by the then learned Chief Justice with the following observations:

494. "It will be observed that this does not say that the Objectives Resolution is the grund norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that flow from it. I did not describe the Objectives Resolution as 'the cornerstone of Pakistan's legal edifice' but merely pointed out that one of the learned counsel appearing in the case had described it as such. It is not correct, therefore, to say that I had held, it, as Justice Ataullah Sajjad has said in his judgment, 'to be a transcendental part of the Constitution' or, as Justice Muhammad Afzal Zullah has said, to be a 'supra-Constitutional Instrument which is unalterable and immutable. "

495. Again in the Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151), this Court discarded the impression that the Court can strike down a Martial Law Regulation which had acquired the status of "law" under the Constitution. In Islamic Republic of Pakistan v. Wali Khan, M.N.A. (PLD 1976 SC 57) this Court once again followed its earlier view and it was held that the Judiciary cannot declare any provision of the Constitution to be invalid or repugnant to the 'national aspirations' of the people. It was further held that a Constitutional amendment could only be challenged if it is adopted in a manner different than the one prescribed by the Constitution or it is passed by a lesser number of votes than those specified in the Constitution. The same view was also followed in Federation of Pakistan v. United Sugar Mills Ltd., Karachi (PLD 1977 SC 397). The contention that a Constitutional provision can be challenged on the ground of its repugnancy either to 'national aspirations' or an abstract concept' was once again discarded. In Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) this Court once again discarded the Indian concept of basic structure. In Sharaf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989 Kar. 404), 1 had myself in my dissenting note discarded the contention that any provision of the Constitution could be tested on the touchstone of another provision in the Constitution.

13. There is, therefore, no doubt that the Courts in Pakistan have consistently declined to favour the basic structure doctrine. However, in' Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), a complete deviation was made from the view earlier held by the Courts in Pakistan in the judgments respectively delivered by Sajjad Ali Shah, the then Chief Justice and Saleem Akhtar, J. Justice Sajjad Ali Shah while referring to the Objectives Resolution has observed:

496. "In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting Federalism, Parliamentary Form of Government blended with Islamic provisions. "

497. While referring to the provisions contained in clause (6) of Article 239 of the Constitution, Justice Sajjad Ali Shah has further observed in the said judgment:

498. "Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provision providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend -those provisions of the Constitution by which would be altered salient features of the Constitution, namely Federalism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution. "

499. It was further observed:-

500. "It, therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are."

501. Similar observations also appear to have been made in the same judgment by Saleem Akhtar, J. Although, his Lordship was conscious that basic structure theory had been completely rejected in Pakistan yet, according to him, every Constitution has its essential features which play an important role in formulating the laws and interpreting the provisions of the Constitution. While referring to Article 8 of the Constitution, his Lordship has observed:

502. "44. Apart. from the fact that Constitution confers and guarantees fundamental rights, Article 8 prohibits the Federal Government, Majlise-Shoora (Parliament), a Provincial Government and a Provincial Assembly from making any law which takes away or abridges such fundamental rights. It further declares that the law made to the extent of such contravention shall be void. This by itself is a limitation on the Legislature. Clause (2) of Article 8 reads as follows:-

503. 'The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention be void'."

504. However, it has been pointed out by Mr. Sharifuddin Pirzada and rightly so that, it does not follow from the said observations that the two learned Judges had fully subscribed to the basic structure doctrine as it appears on first impression. In the short order initially passed by the Court in the case of Mahmood Khan Achakzai, it was observed with reference to the basic structure doctrine:

505. "What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment."

14. Mr. Sharifuddin Pirzada has, however, argued that in Pakistan, Courts cannot go behind any Constitutional amendment as under clauses (5) and (6) of Article 239 of the Constitution, Parliament has been vested with unrestricted power to amend the Constitution and no such amendment car be called in question before any Court. Clauses (5) and (6) provide a; under:

506. "(5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution."

507. While referring to Article 8 of the Constitution, the learned counsel has argued that "law" in the said Article means the ordinary law but, it does not include a provision of the Constitution, as validity of a Constitutional provision is inherent in the provision itself. Validity of law can only be examined by reference to a higher provision but not to a similar provision, enjoying the same status. However, according to the learned counsel, Article 63A itself embodies a non obstante clause according to which, no Court including the Supreme Court and a High Court can entertain any legal proceedings, exercise any jurisdiction or make any order relating to any jurisdiction or make any order relating to any action taken under the said Article. Consequently, according to the learned counsel, jurisdiction of this Court is completely barred in this case.

15. I am fully conscious of the fact that when the Parliament amends the Constitution, it does not exercise its ordinary power of legislation but derives special power from Articles 238 and 239 of the Constitution, which is more akin to constituent power. Validity of ordinary law is tested by reference to provisions of the Constitution, but validity of a Constitutional provision is inherent in the Constitution itself. Therefore, validity of a Constitutional provision cannot be tested on the touchstone of any other provision or a rule or a doctrine. Constitution is the supreme law of the land, therefore, its validity lies within itself. The Constitution of Pakistan is a controlled and a rigid Constitution as amendment in the Constitution is made by a special procedure as provided in Article 239 of the Constitution while an ordinary statute can be amended by an ordinary legislative process. The power to amend the Constitution is also absolute and unrestricted as has been contended by Mr. Pirzada. Therefore, the Parliament has full power to make additions or alterations in the Constitution or to repeal any of its existing provisions in so far as the amendment has been passed in the manner provided for in the Constitution by not less than two-third of the members in the Parliament. But the power bestowed upon the Parliament by the Constitution does not include the power to destroy or abrogate the Constitution or to alter what has been referred to as its basic structure or essential features. So far as the question, whether every amendment in the Constitution must conform to the test laid down in Article 8(2) of the Constitution is concerned, no doubt,' the expression "law" referred to in the said Article cannot have the same connotation as "Constitution", but every amendment in the Constitution is made by an Act of the Parliament. Therefore, it has to pass through the same test as an ordinary law. Only the amendments made by a Constituent Assembly can claim the status of Constitutional provisions and can claim immunity from such examination. Therefore, only an amendment that does not violate or destroy any essential feature of the Constitution or does not abrogate a fundamental right can acquire the status of a Constitutional provision. But until it acquires such status, it may be subjected .to the same test as an ordinary amendment in the law. The power to make Constitution vests in the people alone. It is doubtful if the Parliament can make amendments in the Constitution if such amendments violate any essential feature in the Constitution or a fundamental right guaranteed by it. The provisions of clauses (5) and (6) in Article 239 are, therefore, to be read in harmony with the other provisions of the Constitution. Reference to the judgments from the Indian jurisdiction clearly indicates that the basic structure doctrine is now being fully subscribed to by the Courts in India. The same view has been taken by the Supreme Court of Bangladesh, reference to which was earlier made in this judgment. Both the countries have framed their respective Constitutions embodying provisions which reflect the aspirations of their people and the vision of their founding-fathers. In Pakistan; we also have the Objectives Resolution, which first formed the preamble to our different Constitutions and now it has been made an integral part of our Constitution. As to the question, whether the Objectives Resolution can be relied upon by the Courts to provide guidelines in this regard, divergent views have been expressed by this Court. However, if any guidance is sought, the answer can be found within the Constitution itself. As was observed by the then Chief Justice and Saleem Akhtar, J. in the case of Mahmood Khan Achakzai v. Federation of Pakistan (supra), every Constitution has some essential features. They are the structural pillars upon which the legal edifice of a country rests. In my view, the said observations made in Mahmood Khan Achakzai's case is a clear deviation from the view which was so rigidly adhered to by this Court earlier. But it hardly needs to be said that the earlier judgments of this Court have acquired the status of stare decisis. However, even if such status is to be claimed, the principle is not applicable to this Court as this Court can always review its earlier pronouncements. In Asma Jilani's case, Hamoodur Rahman, C.J. while referring to the said doctrine has observed:

508. "I am not unmindful of the importance of this doctrine but in spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents. "

509. It is also pertinent to note that although, the basic structure doctrine has consistently been followed by .the Courts in India and it is now firmly entrenched in their legal system, still the Judges are divided in their views, leaving the question open for debate. The main argument of the critics of the basic structure doctrine is that there is no definite criteria to hold which of the provisions of the Constitution constitute its basic essential features. However, Sikri, C.J., described some of the features of the Indian Constitution as constituting its basic structure in Kesavananda Bharati's case (supra) as (i) Supremacy of the Constitution, (ii) Republican and democratic form of Government, (iii) Secular character of the Constitution, (iv) Separation of powers between the Legislature, the Executive and the Judiciary, and (v) Federal character of the Constitution. One of the reasons why this Court rejected the basic structure theory earlier, appears to be based on the fact that it preferred to adhere to the theory of trichotomy of powers between the three organs of the State viz., the Executive, the Legislature and the Judiciary. Thus, it followed the view that the Courts have no power to call in question any Constitutional provision. However, it would not be out of place to observe that it is the l bounden duty of this Court to define and interpret the Constitution in the manner so as to provide maximum possible relief to the people while remaining within the parameters provided by the Constitution. The Fundamental Rights and the other rights have been guaranteed by the Constitution to the people in consonance with the national aspirations. The basic structure doctrine propounded in India is only the manifestation of desire to interpret the Constitution for the benefit of the people rather than giving power to the Parliament to destroy its essential features for which it may not have any mandate from the people. Therefore, in my view this Court as a guardian of the Constitution, has a right and the power to declare an amendment in the Constitution as unenforceable r void if the same is construed to be violative of the basic structure of the Constitution or is found to have been passed in derogation of a Fundamental Right. However, the question as to what are the basic essential features of the Constitution of Pakistan is yet to be answered with clarity. Nevertheless, regarding certain basic essential features of our Constitution, there can hardly be expressed any doubt. Any amendment in the Constitution which purports to alter the existing federal structure or the Islamic character of the Constitution or the existing Parliamentary system or which undermines independence of Judiciary or abrogates or abridges any Fundamental Right may be regarded as repugnant to the basic structure of the Constitution.

510. 15-A. An alternative to the basic structure theory can be found in the observations of Saleem Akhtar, J. in Mahmood Khan Achakzai's case (supra). It was observed by his Lordship in the said judgment:--

511. "43. It is well-recognised principle of interpretation that if two provisions conflict with each other the Courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of the Constitution, guaranteeing fundamental rights, independence of Judiciary and democratic principles blended with Islamic provisions. Thus, it is the lesser right which must yield in favour of higher rights.

512. " The same view was followed by the learned Chief Justice earlier in Shahid Nabi Malik v. Chief Election Commissioner (PLD 1996 SC 324). Even in the present case, the learned Chief Justice appears to have drawn on the same principle. There, however, appears to be a very thin line of distinction between the two theories, the one propounded in these cases and the basic structure theory. However, it is the duty of the Courts established under the Constitution to make every effect to preserve the Constitution together with its basic essential features.

513. 15-B. It now remains to be determined whether Article 63A is violative of the basic structure doctrine or any of the fundamental rights referred to by Mr.Iftikhar Hussain Gilani and Dr.A.Basit. It may once again be pointed out that Mr.Iftikhar Hussain Gilani has only called into question paragraph (a) in the "Explanation" to clause (1) of Article 63A, which according to him,. violates Articles 17, 19 and 25 of the Constitution as the said Articles fall under Chapter 1 in Part 11 of the Constitution which relates to fundamental rights. As, according to the learned counsel, fundamental rights guaranteed by the Constitution constitute one of the basic essential features of the Constitution, the said paragraph is liable to be declared as void and inoperative. Dr. A. Basit has, however, questioned the validity of the entire Article 63A as, according to him, the same does not only violate the right of the electorate to be effectively represented by their chosen representatives elected by them to the Parliament, which constitutes one of the essential features of the Constitution, but clause (6) in the said Article which purports to oust the jurisdiction of the Supreme Court or any other Court to entertain any legal proceedings in relation to any action taken under the said Article is equally invalid, being in conflict with entry 55 in the Fourth Schedule to the Constitution, which enumerates the subjects in respect of which the Federal Legislature can legislate. The said entry provides as under:--

514. "55. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers. "

515. Reference has also been made by the learned counsel to Article 2A of the Constitution whereby the Objectives Resolution has been made a substantive part of the Constitution. According to the learned counsel, although, as indicated by the First Paragraph of the Objectives Resolution, sovereignty belongs to Almighty Allah alone but the authority which he has delegated to the State of Pakistan is to be exercised through its people. The Third Paragraph in the said Resolution further provides that the State shall exercise its powers and authority through the chosen representatives of the people. This, according to the learned counsel, is one of the essential features of the Constitution as it envisages effective representation of the people through their chosen representatives. Therefore, any provision made by an amendment in the Constitution which abridges or destroys such right will be violative of the basic structure of the Constitution.

16. No doubt, as is indicated by clause (1) in Article 63A, it purports to provide penalty for a member of a Parliamentary Party on his defection from a Political Party in the circumstances as provided in the said clause. The said "Explanation" in clause (1) in the said Article, in Paragraph (a) thereof further indicates that if a member of a Political Party after being elected as such commits a breach of party discipline or violation of the party constitution or code of conduct or the party's declared policy, he would make himself liable for such penalty. Although, paragraphs (b) and (c) in the "Explanation" purport to control conduct of such member only within the Parliament, but paragraph (a) relates to matters both within and outside the Parliament. In fact both the learned Attorney-General and Mr. Sharifuddin Pirzada have categorically stated that paragraph (a) is not meant to regulate the conduct of the members within the Parliament alone, but also outside the Parliament. Clause (2) in Article. 63A further indicates that where action is proposed to be taken under paragraph (a) in the said Explanation, on reference made in this behalf by the Head of the party, the disciplinary committee of the party shall decide the matter giving a personae hearing to the member concerned and communicate its decision within seven days to the Head of the party whose decision thereon shall be final. There is no controversy in regard to the fact that as is indicated by the various provisions of the said Article, the decision of the Head of the party would be final and the concerned member shall have no right of appeal before any forum including the Supreme Court or a High Court. Article 63A therefore, indicates that although it is dressed in the garb of control of the practice of floor-crossing by a member of a Parliamentary Party, but it purports to impinge on his freedom in the guise of party discipline. As is indicated by paragraph (a), action can be taken by the party Head for violations which may fall within the ambit of "party discipline" but they may have nothing to do with floor-crossing which practice the said Article ostensibly purports to control. Although, there appears to be no express restrictions imposed by the said paragraph in Article 63A either on freedom of expression or on any other right, but the said paragraph indicates that it can be used as an instrument of arbitrary suppression of freedom of expression of views by the members of Parliamentary Parties even on important national issues. Article 19 of the Constitution guarantees freedom of expression. The same no doubt, is subject to reasonable restrictions that may be imposed by law in the interest of integrity, security or defence of Pakistan, or public order, decency or morality, etc., but any unjustified restrictions imposed on the freedom of expression can be justiciable before the Courts. The impugned provision is per se oppressive as right of a member has been placed in the uncontrolled discretion of the Head of a Parliamentary Party. The provision appears to be a dangerous weapon in the hands of the party leader which can easily be misused. There is no gainsaying that right of expression is a necessary postulate of democracy. As a member of a Parliamentary Party represents his constituents and it is the part of his duty towards his constituents to articulate his views at the Party meetings for their benefit, the said provision amounts to denial of such right not only to the elected member himself, but also to his constituents. In the presence of such provision in the Constitution, the members may find it difficult to go against the decisions of the party Head as they will continuously remain under the threat of losing their seats in the Parliament. Pakistan being a federation, there may be policies of the Government which may find support of all the federating units, but still there may be some policies which may not get such a universal support. Any such provision which deters the elected representatives of the people from freely airing their views either inside or outside the Parliament, can even retard the democratic process in the country. The legislation is, therefore, on the face thereof violative of Articles 19 and 25 of the Constitution as it gives the Authority concerned an uncontrolled and arbitrary discretion and leaves the door wide open for discriminatory use of power. The legislation is also violative of Article 17(2) of the Constitution. The said Article provides that every citizen shall have the right to form associations or unions, subject to certain restrictions as provided in the said Article. Article 17(2) had been the subject-matter of discussion in this Court in the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473). The argument before this Court was that the right of a citizen to form or be a member of a Political Party, as enshrined in clause (2) of Article 17 of the Constitution, does not end with his winning the elections, but such right is a continuous political process. It was observed by Justice Ajmal Mian in this case as under:--

516. "I am inclined to hold that the right to form a Political Party and to be a member of a Political Party enshrined in clause (2) of Article 17 does not culminate upon winning of the elections as was contended by the learned Attorney-General and Mr. S.M'' War but it is a continuous political process which includes the right of the petitioner to remain as a member of the National Assembly or as a Prime Minister till the time the life of the Assembly or the tenure of the Prime Ministership is terminated lawfully in accordance with the provisions of the Constitution. It is true that nobody can claim any vested right to remain a member of the National Assembly or to be a Prime Minister for the period of five years but an M.N. A. or a Prime Minister can claim that he should be allowed to function so long as the life of the Assembly or his tenure is not terminated in accordance with the provisions of the Constitution. Any infraction of the above right without legal basis will inter alia attract Article 17(2) of the Constitution besides being violative of the relevant Constitutional or statutory provision. Since the majority, including me, has held that the impugned order of 18th April, 1993, does not fall within the ambits of Article 58(2)(b) of the Constitution, the termination of the life of the Assembly and the tenure of the petitioner as the Prime Minister besides being violative of the above provision of the Constitution will also attract Article 17(2) of the Constitution, as admittedly the petitioner was the leader of a Political Party which commanded the majority in the National Assembly."

517. Therefore, as was observed in the case of Mian Nawaz Sharif, an elected member has a right to complete his tenure . in the Assembly, unless it is terminated lawfully. Consequently, . any legislation which can be used as an instrument by the Head of a Political Party to cut short the tenure of a member and declare his seat vacant on the, pretext of violation by him of the party discipline would certainly be regarded as violative of the fundamental right guaranteed by Article 17(2) of the Constitution. Although, the said paragraph in the "Explanation" also appears to be repugnant to, Article 66 of the Constitution which permits freedom of expression within the Parliament but the right guaranteed by Article 66 is neither a fundamental right nor the said Article can be authoritatively described as constituting one of the essential features of the Constitution.

518. 17 Article 8, clauses (1) and (2) of the Constitution provide that:---

519. 8.--(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.

520. If the impugned legislation is violative of Article 17, 19, or 25 of the Constitution, which relate to fundamental rights, can it be passed by the Parliament in derogation of the clear restrictions imposed by Article 8(2) on the power of the State to pass any law which takes away or abridges any fundamental right guaranteed under Chapter 1, Part 11 of the Constitution? "State" in Article 8(2) represents the entire organization of the body politic represented by its different organs. The said term does not mean any one particular organ of the State, but it would include all such different organs of the State, the Legislature being one of them. Therefore, the restrictions imposed by Article 8(2) clearly apply to the Parliament to make such laws which are in conflict with the fundamental rights and any such law enacted by the Parliament, to the extent of such contravention, would be void.

18. Mr.Sharifuddin Pirzada has, however, contended that this Court cannot go behind any amendment made in the Constitution and declare it as unenforceable. Support in this regard has been sought by him from clauses (5) and (6) of Article 239 which, according to him, provide a complete shield of immunity to Constitutional amendments from scrutiny by the Courts. Clause (5) lays down that no amendment of the Constitution shall be called in question in any Court on any ground whatsoever while clause (6) provides that there is no limitation whatever on the power of the Parliament to amend any of the provisions of the Constitution. More or less similar immunity is provided by clause (6) of Article 63A to its provisions from challenge before any Court, including this Court or a High Court. However, there appears to be a clear conflict between the provisions of clause (6) in Article 239 and Article 8(2) of the Constitution. clause (6) of Article 239 clothes the Parliament with unrestricted power to make any amendment in the Constitution, while Article 8(2) imposes restrictions on the power of the State to make any law in derogation of a fundamental right as referred to in Chapter 1, Part 11 of the Constitution. In. Article 8(2) a clear intention has been expressed by the Makers of the Constitution that the provisions of the Constitution relating to fundamental rights should stand on a higher pedestal as compared to. any other law. Therefore, restrictions have been placed on the power of the Legislature to make any law which may take away or abridge any fundamental right conferred by Chapter 1, in Part 11 of the Constitution. Even if it is assumed for the sake of argument that "law" in Article 8(2) does not include a Constitutional amendment, clause (6) in Article 239 of the Constitution cannot be construed so as to override the provisions of Article 8(2) as the Makers of the Constitution could not have intended to provide such protection to the fundamental rights on the one hand and vested the Parliament with unrestricted power on the other, even to take away, abridge or destroy a fundamental right. Such liberal construction of clause (6) in Article 239 can be destructive even of the provisions of the Constitution itself. It is a well-established rule of interpretation that where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute to ensure its smooth and harmonious working. Any construction which tends to defeat or destroy the basic scheme or purpose of the enactment must be eschewed. The same canons of construction apply to the Constitution. To overcome such difficulties the rule enunciated by this Court in case of conflict between two provisions of the Constitution is that the provision relating to lesser rights must yield to that conferring higher rights. Such view was initially taken by Ajmal Mian, J. (as he then was) in the case of Al-Jehad Trust (PLD 1996 SC 324) and again followed in Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32). Observations to the same effect were also made by Saleem Akhtar, J. in Mehmood Khan Azachkzai's case (supra). In Al-Jehad Trust's case, in spite of the clear intention expressed by the Constitution-Makers in Article 203A of the Constitution by use of a non obstante clause, that the provisions embodied in Chapter 3-A of the Constitution shall prevail it was held that the provisions of Article 209 of the Constitution, which conferred higher rights must prevail and the provisions of Article 203C of the Constitution must yield to Article 209. Even in the judgment, proposed to be delivered by the learned Chief Justice reference has been made by him to Corpus Juris Secundum, Vol. 16, page 97 where it has been observed that:--

521. "Although apparently conflicting provisions will be reconciled wherever possible, in case of a conflict in the provisions of the Constitution, if one or the other must yield, the one which under the law, is a lesser right, will yield."

522. Reference has also been made to Halsbury's Laws of England, 4th Edn., Vo1.44, page 532, where more or less similar observations have been made. It has been observed:--

523. "It is sometimes said that where there is an irreconcilable inconsistency between two provisions in the same statute, the latter prevails, but this is doubtful and the better view appears to be that the Courts must determine which is the leading provision and which is the subordinate provision, and which must give way to the other."

524. Since the provisions in the Constitution relating to fundamental rights confer higher rights, therefore, clause (6) of Article 239 of the Constitution must yield 1 to Article 8(2) of the Constitution to the extent of the repugnancy., Accordingly, ! clause (6) in Article 239 should be construed subject to the provisions of Article 8(2). However, as was pointed out by me earlier, the term "law" appearing in Article 8(2) of the Constitution would also include an amendment in the Constitution. In any case, clause (6) in Article 239 would only apply if the amendment made in the Constitution does not conflict with any fundamental rights conferred by Chapter 1 in Part 11 of the Constitution. But if such amendment is found to be repugnant to any of the fundamental rights, the Court shall have power to go behind the same and declare it unenforceable or void. The same rule should apply if the amendment is found to be irreconcilable with any other essential feature of the Constitution. Although, there is no express provision in the Constitution to provide guidance to the Courts in this regard, as in the case of fundamental rights, but the basic structure doctrine, though an abstract concept, has been referred to by the Courts in the countries where it is applied as an extension of the principle of judicial review. When the Court is vested with power of judicial review, it has the duty to say that an Act passed by the Parliament, if found to be in conflict with the Constitution, is not a valid law. Clause (6) of Article 63A would also be of no consequence if any of the provisions of the said Article is found to be in conflict with a fundamental right or it violates any other essential provision in the Constitution. Reference in this regard may also be made to Minerva Mill's case (supra) where similar provisions as clauses (5) and (6) of Article 239 made in Article 368 of the Indian Constitution were struck down by the Supreme Court of India as violative of the basic structure of the Constitution. Observations more or less to the same effect can also be found in the judgment of Justice Sajjad Ali Shah in Mahmood Khan Achakzai's case, reference to which was earlier made in this note. The contention of Mr.Pirzada is, therefore, not tenable.

19. 1 have also referred to two important questions raised by Dr.Basit. The learned counsel has first contended that Article 63A is repugnant to the right of the people to be effectively represented by their chosen representatives. Although, the learned counsel has sought support from the Objectives Resolution in this regard, but in my opinion, freedom of expression without any doubt, is one of the essential postulates of democracy. It is the right of the members elected to the Assemblies to freely articulate their views in the house or at the party meetings. Therefore, any legislation which purports to deprive members of Political Parties of such right would be violative of the right of freedom of expression, if nothing else. The question raised by Dr. Basit, therefore, no doubt, is a question of immense Constitutional importance. However, I would rather leave this question to be dealt with by this Court at some other appropriate time when more views may be available on the subject. Even otherwise, if effective relief can be granted to the petitioner on another ground, any further discussion on this issue, would be more of an academic character. I, therefore, refrain from expressing my opinion on this issue for the present.

20. The question raised by Dr.Basit that, clause (6) in Article 63A is equally violative of the basic structure of the Constitution is no less important, but the issue has already been dealt with in this note, although from a slightly different angle. To be dealt with in accordance with law is the inalienable right of every citizen of Pakistan (see Article 4 of the Constitution). Clause (6) in Article 63A, however, purports to take away the Court's power of judiciar review in case any action is taken against a member of an Assembly by his party Head under the said Article. The object behind Article 63A, therefore, clearly appears to be to vest the party Head with absolute and uncontrolled power in this regard. It has already been pointed out that any legislation which vests the Authority concerned with such unrestricted and arbitrary powers which can be used by him as an instrument of repression, would be violative of Article 25 of the Constitution, which guarantees equality of all citizens before law. Clause (6) in Article 63A for the reasons earlier stated is, therefore, clearly in conflict with Article 8 of the Constitution which constitutes one of the essential features of the Constitution.

21. It may be pointed out in the end that although, as has been pointed out by the counsel, the impugned legislation was passed without resistance even by those members of the Parliament who represented the opposition, but it has been called in question by persons who have no direct concern with the Parliament. The members who passed the legislation were well aware of the consequences which might flow therefrom. If the legislation purports to put any clog on the freedom of expression, then the members themselves consented for the same. Can any one raise an objection on behalf of the members who were themselves a consenting party? The basic question, however, is, whether such argument can serve as a valid defence to the present petitions. Any amendment to the Constitution, if it goes unchallenged, may acquire a permanent place in the Constitution. The Constitution is the fundamental law and its provisions have an element of permanence as special procedure is required for their amendment. Therefore, any provision which is incorporated in the Constitution, will not only bind the present members, but it will equally bind the future generations. The mere fact that it was passed unanimously cannot clothe it with immunity from judicial review.

22. In the result, I would allow these petitions by holding that paragraph (a) in the "Explanation" to clause (1) of Article 63A and clause (6) in the said Article being violative of the fundamental rights shall be treated as void and unenforceable.

525. (Sd.)

526. Mamoon Kazi, J.

ORDER OF THE COURT

527. By majority of 6 to 1 it is held that Article 63A of the Constitution is intra vires but by 4 to 2 subject to the following clarifications:

(i) That paragraph (a) to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63A of the Constitution. It must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of occurred within the House.

(ii) That the above paragraph (a) to Explanation to clause (1) of Article 63A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.

528. Whereas by minority view paragraph (a) in the Explanation to clause (1) of Article 63A and clause (6) in the said Article of the Constitution are violative of the fundamental rights and are to be treated as void and unenforceable.

529. M.B.A./W-10/S Order accordingly