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Petition No. 102 of 1963, decided on 5th April 1963.
Art. 104 (1), (2), (3) read with Art. 103‑Clauses (1) & (2) of Art. 104 independent of each other‑Cessation of membership of Assembly under cl. (1) automatic‑Reference by Speaker to procure opinion of Chief Election Commissioner not necessary‑Penalty provided by cl. (3) meant as a deterrent.
Clause (2) of Article 104 of the Constitution of Pakistan (1962) creates a special forum to give an opinion as to disqualifi cations entailed by members of an Assembly. The cessation of membership is automatic under clause (1) where its provisions are applicable and is not dependent upon any reference to the Chief Election Commissioner for his opinion.
Clause (2) of Article 104 deals with the position of a member with regard to whom it is alleged that he has been disqualified. In this connection, it will be useful to remember that clause (2) of Article 103 enumerates such disqualifications.
Clause (3) of Article 103 in dealing specifically with the President, a Governor or a Minister has advisedly avoided the use of the expression "disqualified". Clause (2) of Article 103 is related to clause (2) of Article 104.
Clause (3) of Article 104 has been designed to act as a deterrent to members who, knowing that they are either disqualified from continuing as members or are not qualified to be members, keep on sitting and voting in the Assembly.
Joseph Tehberage v. Philip Laudry (1876) 2 A C 102 and Strickland v. Grima 1930 A C 285 distinguished.
A Constitution must be read as a whole. The heading of a Chapter supplies the key‑note to the Articles that follow. No great sanctity is attached to an interpretation clause which is subject to the context in which the particular word or phrase is used. The same word may have a different meaning in different contexts.
A. K. Gopalan v. State of Madras A I R 1950 S C 27; Aswine v. Arabinda A I R 1952 S C 369; P. P. P. Chidambara Nadar v. Rama Nadar and others A I R 1937 Mad. 385; Lindsay and others v. Cundy and another (1876) 1 Q B D 384; Bachu Mullikarjuna Rao v. Ofcial Receiver, Kistna and others A I R 1938 Mad. 449; Eastern Counties Ry. Cos. v. Francis Marriage (1862) 9 H L C 32 and Queen v. The Local Government Board (1882) 10 Q B D 309 ref.
Art. 133(2) read with Art. 224 (3) and Art. 242‑Bar against scrutiny of Courts with a view to questioning vires of a Legislature to make a law‑Not applicable to Removal of Difficulties (Appointment of Ministers) Order, 1962 made by President under powers derived from cl. (3) of Art. 224‑President not "Legislature".
Article 133 of the Constitution of Pakistan (1962) does not debar the High Court from examining the vires of the Removal of Difficulties (Appointment of Ministers) Order, 1962 passed by the President under Article 224(3) of the Constitution.
The words "Legislature" and "power" in Article 133(2) of the Constitution have to be read with reference to the context in which they have been used and, read in such context, the expression "Legislature" cannot but mean that it has reference to either the Central Legislature or a Provincial Legislature and that the word "power" has no other connotation except that it relates to the power of either of the aforesaid Legislatures with reference to the subject‑matter of legislation in a scheme which provides for the distribution of such legislative power between the Centre and the Provinces.
To interpret a single word divorced from its context is not permissible either on authority or on principles of construction or on plain commonsense.
James v. Commonwealth of Australia 1936 A C 578 ref.
Art. 224 (3)--‑"Difficulty"‑Means concrete difficulty directed towards bringing Constitution into operation‑Not synonymous with "emergency" as used in S. 42, Government of India Act, 1935‑"Difculty" Existence of, justiciable‑Removal of Difficulties (Appointment of Ministers) Order (34 of 1962)‑Vires can be examined by Court.
The difficulty contemplated under Article 224(3) of the Constitution is a concrete difficulty directed towards one simple end, namely, towards bringing the Constitution into operation.
The word "difficulty" has not been used in the abstract or in a vacuum. It is not an undefined difficulty; it is a difficulty which is fixed with a purpose and, therefore, it is a kind of difficulty which is capable of adjudication and is justiciable in a Court of law when it is challenged that an Order made under Article 224(3) has travelled beyond the scope and object of that Article and is therefore ultra vires the Constitution.
The High Court has jurisdiction to adjudicate upon the vires of the Removal of Difficulties (Appointment of Ministers) Order, 1962 made by the President under powers derived from Article 224(3), Constitution of Pakistan, 1962.
The word "difficulty" as used in Article 224(3) is distinguish able from the word "emergency" used in section 42, Government of India Act, 1935.
Emergency is a concept which, of necessity, is incapable of an objective test in the sense that it is often difficult to lead evidence from which an "emergency" can be inferred. It is a concept which is purely dependent upon a subjective satisfaction of the man who is called upon to decide as to whether an emergency exists. Emergency has often to be judged upon secret information s,---information s, which, if divulged, would defeat the very scheme for meeting the emergency. It is, in essence and in substance, a matter of opinion to be formed on a general appraisal of a situation which it is almost next to impossible to re‑enact before a Court of law.
Queen v. Burah L R 5 I A 168 ref.
Emperor v. Benoari Lal Sharma and others A I R 1945 P C 48 and Bhagat Singh and others v. Emperor A I R 1931 P C 111 considered.
Art. 224(3)---Adapta tion"‑Distinguished from "amendment".
In a loose and popular sense, it may be permissible to say that adaptation is a kind of amendment; but the distinction which the Constitution has maintained is, that amendment is for all purposes. It may be made at any time and is usually permanent in character. It may, but need not be, temporary. Adaptation is modification for a limited purpose and under Article 224(3) of the Constitution it is confined to a specific purpose.
The power of "adaptation" does not extend to the wiping out of a vital provision of the Constitution to implement (for instance) a decision of the members of the Assembly who were invited to be Ministers.
On all analysis of Article 224(3) of the Constitution the following salient features emerge: The President has been empowered to make certain adaptations solely for the purpose of bringing the Constitution or its provisions into operation. The conferment of power is to help him to remove any impediment which may come in the way, for example, a lacuna in the Constitution which may create, a difficulty in the operation of any of its provisions.
Remington Rand of Pakistan v. The Islamic Republic of Pakistan P L D 1957 S C (Pak.) 170; Reference by the President P L D 1957 S C (Pak.) 219; Punjab Province v. Daulat Singh A I R 1941 Lah. 182; Sajawal Baksh v. Mohammad Hussain A I R 1943 Lah. 233; Ziaul Huq v. Government of West Pakistan P L D 1956 Lah. 358; Zain Noorani v. Secretary of National Assembly of Pakistan P L D 1957 Kar. 1; Siraj‑ud‑Din v. State P L D 1957 Lah. 962; Ram Sahay v. Ram Sewak A I R 1956 All. 321; Munna Lal v. H. R. Scott A I R 1953 Cal. 451; Ramananda v. The State A I R 1951 Cal. 120 and Shankari Prasad v. Union of India A I R 1951 S C 458 ref.
Preamble read with Arts. 33,104(1), 224(3) & 224(4), Constitution of Pakistan (1962)‑Difficulty enumerated in Preamble of Order (34 of 1962) not covered by the term "difficulty" used in Art. 224 (3), Constitution of Pakistan (1962) President not obliged to appoint Ministers from among members of Assembly Order (34 of 1962) ultra vires and void‑Clause (4) of Art. 224 ex facie bad.
The sort of difficulty specified in the Removal of Difficulties (Appointment of Ministers) Order, 1962 is not a "difficulty" within the meaning of Article 224(3) of the Constitution. If the Constitution had made it obligatory that the President's Council of Ministers must consist of members of the Assembly or if it had been incumbent that some proportion of the said Council must be members of the Assembly, then it might have been possible to say that there has arisen a "difficulty" which must be resolved. The removal of a difficulty under Article 224 (3) must be directed towards eliminating any obstruction or impediment in the way of bringing a provision of the Constitution into operation. Article 224(3) does not permit the converse pro position, that is, it does not allow a provision of the Constitution to be changed or modified in order to resolve a political difficulty created by some members of the Assembly on their declining to be appointed as Ministers, if thereupon, they cease to be members of the Assembly.
Order 34 of 1962 is void and inoperative being in excess of the powers of the President conferred by Article 224(3) and, it is in that sense, ultra vires the Constitution.
If it is correct that the President exceeded his powers in passing the impugned Order (Order 34 of 1962) in respect of the alterations that have been made to the Articles specified in the impugned Order, clause (4) of Article 104, which seeks to bar the jurisdiction of the High Court is obviously bad. Indeed, the said clause (4) added to Article 224 is plainly and exfacie bad.
The effect of Article 104(1) is, that Ministers, whether Central or Provincial, have ceased to be members of the Assembly to which they have been elected, consequent upon their respective appointments as Central or Provincial Ministers. [p. 705]R
Art. 98‑Laches Condoned in view of unfamiliar nature of provisions of Constitution (1962) in a case involving interpretation of such provisions.
A. K. Brohi, Mahmud Ali Qasuri, A. M. Chowdhury, K. Hossain and H. K. Chowdhury for Petitioner.
Tufail Ali Abdur Rahman; Attorney‑General, Md. Nurul Huda, Deputy Attorney‑General, R. W. Mallik, Ali Amjad Khan and Sultan Ahmad for Respondents.
Dates of hearing: 3rd, 4th and 5th April 1963.
‑The petitioner, Muhammad Abdul Haque, is a member of the National Assembly of Pakistan elected under the present Constitution. In this petition he has asked this Court, invoking its jurisdiction under Article 98 of the Constitution, to examine the legality of the warrant and title of the respondents to the membership of the said Legislature. Although in the petition itself various other orders were prayed for, they were not, how ever, pressed when the petition was heard for the issuance of a Rule nisi. This Court was merely asked to examine the legality of the authority of the respondents by which they still claimed to be members of the said National Assembly in spite of the fact that shortly after their election to above‑mentioned Assembly, they were appointed to the President's Council of Ministers. As a necessary incident to the aforesaid prayer, this Court was asked to interpret the legal implication of Article 104(1) of the Constitution and to examine the vires of an Order made under Article 224 (3) which has been set out hereafter.
2. The petitioner, therefore, obtained the following Rule nisi from this Court:
"Let a Rule nisi issue calling upon the respondents to show by what authority they claim to have, us enjoy and perform the rights, duties and privileges, and hold the public office, of members of National Assembly, or such other or further order or orders passed as to this Court may seem fit and proper.
The Rule is made returnable within a week from date."
3. The contention of the petitioner is founded on a simple question, namely, that under Article 104 (1) of the Constitution, the respondents have, by operation of law, ceased to be the members of the said National Assembly on their appointment to the Central Council of Ministers. Our attention was drawn to an Order of the President of Pakistan purported to have been passed under Article 224(3) of the Constitution. This Order is Order No. 34 published on the 12th of June 1962, and it reads as follows :‑
"Whereas Article 33 of the Constitution requires a Council of Ministers to assist the President in the performance of his functions, and Article 82 requires a Council of Ministers to assist the Governor in the performance of his functions ;
And whereas it is necessary and expedient that some members of the Assembly be appointed as Ministers of the President's Council of Ministers and Governor's Council of Ministers;
And whereas Article 104 requires that if a member of an Assembly is appointed as a Minister of the President's Council of Ministers, or of a Governor's Council of Ministers, be shall cease to be a member of the‑ Assembly;
And whereas members of the Assembly have expressed unwillingness to accept the office of the President's Council of Ministers and Governor's Council of Ministers if they are there upon to cease to be members of the Assembly;
And whereas a difficulty has arisen which prevents the formation of the President's Council of Ministers and the Governor's Council of Ministers and carrying on of the business of Government and that difficulty requires to be removed;
Now, therefore, in exercise of the power conferred by clause (3) of Article 224 of the Constitution, the President is pleased to make the following Order:‑
1. Short title and commencement.‑(1) This Order may be called the Removal of Difficulties (Appointment of Ministers) Order, 1962.
(2) It shall come into force at once.
2. Constitution to have effect subject to modifications.‑The provisions of the Constitution shall, during the period of three years from the commencement of this Order, have effect subject to the following modifications, namely
(1) In Article 25, in clause (2) for the word "Ministers" the words and commas "Minister, who is not a member of the Assembly", shall be substituted.
(2) In Article 75, in clause (2), for the words "for a Province" the words and commas "for a Province, who is not a member of the Assembly" shall be substituted.
(3) In Article 103, in clause (3),‑
(a) for the words and comma "the President, a Governor or a Minister", the words "the President or a Governor" shall be substituted ; and
(b) for the words and comma "President, Governor or Minister", the words "President or Governor" shall be sub‑
(4) In Article 104, in clause (1), the words "or Minister" shall be omitted.
(5) In Article 120, for the words "Parliamentary Secretary", wherever occurring, the words "Minister or Parliamentary Secretary" shall be substituted.
(6) In Article 224, after clause (3), the following new clause (4) shall be inserted, namely:‑
(4) The validity of any Order made, or purporting to have been made, under this Article shall not be called in question.'
(7) In Article 242, in the definition of "service of Pakistan", for the words "as a Parliamentary Secretary" the words "as a Minister or a Parliamentary Secretary" shall be substituted."
The petitioner has submitted that the above‑quoted Order (hereinafter called the impugned Order) is ultra vires the powers of the President under the said Article 224(3) of the Constitu tion. It has been further submitted that, if so, the unmodified provisions of Article 104(1) of the said Constitution must prevail. In consequence thereof, there has been a cessation of the respective memberships of the respondents in respect of the National Assembly of Pakistan from the date on which they had assumed office as Ministers of the President's Council of Ministers.
4. On behalf of the respondents no affidavit‑in‑opposition has been filed as, in essence and substance, this case resolves itself into a question of the interpretation of the Constitution. The fact that the respondents, soon after their election to the National Assembly, were appointed as Ministers in the Central Council of Ministers, could not be and have not been denied.
5. At the hearing of the Rule we had the advantage of very able assistance of all the learned lawyers who had appeared before us. The learned Attorney‑General, appearing on behalf of the respondents, has raised a three‑pronged plea in bar of this Court's jurisdiction to adjudicate upon the issues raised in the present case and we shall deal with them seriatim.
6. The first and primary objection which was raised on behalf of the respondents is that the provision of Article 104 of the Constitution bars the jurisdiction of the Court to decide this case. Article 104 reads thus :‑
"104. (1) if a member of an Assembly is elected as President, or appointed as a Governor or Minister or to any other office of profit in the service of Pakistan, he shall cease to be a member of the Assembly on the day on which he enters upon his office.
(2) If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member.
(3) If any person sits or votes in an Assembly knowing that he is not qualified to be, or is disqualified from being, a member of the Assembly he shall be liable in respect of every day on which he so sits or votes to a penalty of five hundred rupees, which may be recovered from him as a debt due‑
(a) in the case of the National Assembly‑to the Central Government, or
(b) in the case of the Assembly of a Province‑to the Government of the Province."
7. The question is : does it bar the jurisdiction of this Court under Article 98 Sub‑articles (1) and (2) of Article 104 deal with the cessation of membership. It should be remembered that disqualification does not ipso facto operate as cessation of membership. The two concepts are distinct. This will be evident from a comparison of the terms of Article 103 with those of Article 104. We would, therefore, set out hereunder the provisions of Article 103 which reads thus:
"103 (1) Except as provided in this Article, a person is qualified to be elected as, and to be, a member of an Assem bly if‑
(a) his name appears‑
(i) in the case of the National Assembly‑on the electoral roll for any electoral unit, or
(ii) in the case of the Assembly of a Province‑on the electoral roll for an electoral unit in the Province, and
(b) he is not less than twenty five years of age.
(2) A person is disqualified from being elected as, and from being, a member of an Assembly if‑
(a) he holds an office of profit in the service of Pakistan
(b) he is an un-discharged insolvent ;
(c) he has, within the previous period of five years, been convicted of an offence by any Court and sentenced to trans portation or to imprisonment for not less than two years or been sentenced to death and that sentence has been committed to transportation or imprisonment;
(d) he has ceased to be a citizen or has affirmed allegiance to a foreign State ; or
(e) he is otherwise disqualified from being a member of that Assembly by this Constitution or by or under any law.
(3) Notwithstanding paragraph (a) of clause (2) of this Article, the President, a Governor or a Minister is qualified to be elected as a member of an Assembly, but if he is so elected, he is not qualified to be a member of the Assembly until be ceases to hold office as President, Governor or Minister."
8. It is true, the marginal note of Article 104 reads thus:
"Cessation of membership upon disqualification", but sub- article (2) in fact, speaks of such disqualification. So far as sub‑article (1) of Article 104 is concerned, it provides for an automatic cessation of the membership of the Assembly upon the incumbent being appointed as President, Governor, Minister or to any other office of profit in the service of Pakistan and the cessation will take effect on the day the member concerned enters upon his office. Without specifying as to whether such appoint ment would entail a disqualification the Constitution has provided for a complete cessation of such membership merely upon the appointment of the member concerned to one of the aforesaid offices which, as we have pointed out will take effect from the day on which he enters upon the, said office.
9. Sub‑article (2) deals with the position of a member with regard to whom it is alleged that he has been disqualified. In. this connection, it will be useful to remember that sub‑article (2) of Article 103 enumerates such dis‑qualifications. Sub‑article (3) of Article 103 in dealing specifically with the President, a Governor s or a Minister has advisedly avoided the use of the expression "disqualified". Sub‑article (2) of Article 103 is related to sub- article (2) of Article 104. Sub‑article (2) of Article 104, therefore, provides that whenever a question arises as to whether a member has become disqualified, the Speaker of the Assembly shall refer it to the Chief Election Commissioner, for his opinion. It is upon such opinion given by the Chief Election Commissioner, that the particular incumbent concerned shall cease to be a member. It clearly contemplates that a disqualification does not of itself operate as cessation of membership. The cessation will take place upon the opinion being given by the Chief Election Commissioner to the effect that the member is so disqualified. Sub- articles (1) and (2) of Article 104 are two separate, distinct and independent provisions. If Article 104 is read along with Article 107, the position will become perfectly clear. Article 107 speaks of the vacancy in the relevant seats and the relevant provisions of the said Article is as follows:
"107. The seat of a member of an Assembly shall become vacant if‑
(b)
(c)
(d) he ceases to be a member of the Assembly under any provisions of this Constitution or under any law."
It would thus be clear that the contention of the learned Attorney‑General that sub‑article (2) of Article 104 governs sub -article (1), is untenable. As we have seen above, they are separate and independent provisions. Sub‑article (2) of Article 104, however, creates a special forum to give an opinion as to disqualifications entailed by members of an Assembly. The cessation of membership is automatic under sub‑article (1) A where its provisions are applicable and is not dependent upon any reference to the Chief Election Commissioner for his opinion.
10. Mr. Brohi has argued, in this connection, that if we are to treat sub‑article (1) as being governed by sub‑article (2) we would be led to the absured result that the Minister will cease to be a member of the Assembly twice‑first, when he ceases to be a member under sub‑article (1) as soon as he takes the oath of the office as such Minister and, secondly on receipt of an opinion of the Chief Election Commissioner under sub‑article (2). In any event, the words of the provisions are clear. Learned Attorney General has asked : If disqualification does not automatically entail cessation of membership, then why has penalty been provided for under sub‑article (3) in case of a person who sits and votes in an Assembly knowing that he is not qualified to be a member, or is disqualified from being such a member, of the Assembly 7 The answer is a very simple one. This provision seeks to penalise participation as member of the Assembly even after disqualification from such membership. Under sub- article (3) a member who has incurred a disqualification is liable to the penalty specified in the said sub‑article even prior to the cessation of his membership under sub‑article (1) or (2). Sub. article (3) has been designed to act as a deterrent to members who, knowing that they are either disqualified from continuing as members or are not qualified to be members, keep on sitting and voting in the Assembly.
11. On an assumption that sub‑article (2) of Article 104 creates a special forum for determination of the question before us, the learned Attorney‑General has cited two decisions of the Privy Council, which we shall discuss forthwith.
12. He has submitted that this Court cannot hear and decide the present case and has relied on a decision of the Privy Council in the case of Joseph Tehberage v. Philip Laudry ((1876) 2 A C 102). The fact and the decision in that case have been accurately summarized in the head‑notes thus
"The petitioner having been declared duly elected a member to represent the electoral district of Montmanier, in the Legislative Assembly of the Province of Quebec, his election was afterwards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt practices, both personally and by his agents. He now applies for special leave to appeal to Her Majesty in Council
Held, that such application must be refused.
Although the prerogative of the Crown cannot be taken away except by express words, and the 90th section of the above Act providing that such judgment shall not be susceptible of appeal, does not mention either the Crown or its prerogative yet the fair construction of the above Act and the previous legislation is, that it was the intention of the Legislature, under this Act, which was assented to by the Crown, to create a Tribunal for the purpose of trying election petitions in a manner which should make its decision final for all purposes, and should not annex to it the incident of its judgment being reviewed by the Crown under its prerogative."
Learned Attorney‑General has referred us to the following obser vations of Lord Carins at page 106 of the report
"Their Lordship wish to state distinctly: that they do not desire to imply any doubt whatever as to the general principle, that the prerogative of the Crown cannot be taken away except by express words, and they should be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shown to take away that prerogative. But in the opinion of their Lordships, a somewhat different question arises in the present case. These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character. They are not Acts constituting or providing for the decision of mere ordinary civil rights, they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, upto that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedy known."
At pages 107‑108 of the above report there is a further observation to the following effect:‑
"Now, the subject‑matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the pri vileges of the electors, and of the Legislative Assembly to which they elect members. Those rights and privileges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place."
13. It would be noticed that this is a case where an election of a particular individual was challenged and the matter was decided by the Supreme Court of Quebec which, in fact, became the Election Tribunal to adjudicate the issue that was raised before it. It was held that although the Supreme Court of Quebec, which was the highest Court of Appeal in Canada, was constituted as such a Tribunal, none‑the‑less, it functioned not as a Court of normal jurisdiction but as a Special Tribunal con stituted under a Special Act to deal with the question of election disputes. In the Privy Council it was argued that the right of appeal to the Privy Council was not taken away by the provisions of the said Act. The contention was repelled by Lord Cairns by saying that, although the Supreme Court of Quebec was constituted a Special Tribunal', such Tribunal was unknown to the hierarchy of the normal Courts of the country. It was a Tribunal which was sui juris. Secondly, it was observed that the words : "Such judgment shall not be susceptible of appeal", made it clear that it was the Supreme Court of Quebec which was the final Court to decide the question. The word "finally", was not expressly used, but it was held by their Lordships that in the context of the relevant provisions that was its necessary implication. An appeal, indeed, is only a continuation of the original case. Upon the aforesaid grounds the Board rejected the appeal which was preferred against the decision of the Supreme Court of Quebec sitting as an Election Tribunal. These are the distinguishing features of the aforesaid case which have no manner of application to the facts of the present case.
14. The case before us does not raise an election dispute. It does seek for an adjudication that the respondents are dis qualified from membership of the Assembly. It does not ask for an order retaining them from discharging their functions of such membership. It merely asks us to examine the authority of the respondents to continue as such members under an express jurisdiction conferred upon this Court by the Constitution itself. It further asks us to interpret the provisions of Article 104 (1) and to state, in deciding this case, whether it would still prevail in its unaltered form.
15. Reliance was next placed on another decision of the Privy Council in the case of Strickland v. Grima (1930 A C 285). This is a case from Malta and the facts as well as the decision as stated in the head‑notes run thus:
"The Malta Constitution Letters Patent, 1921, provide by Article 33 "all questions which may arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly shall be referred to and decided by our Court of Appeal in Malta.
The Court of Appeal having held that the election of the second and third appellants to the Senate was null and void, as special leave to appeal to His Majesty in Council having been granted:
, that the intention of the above Article of the Letters Patent was to designate the Court of Appeal a special tribunal finally to determine all questions of the nature stated without annexing to the jurisdiction the ordinary incident of an appeal to the Crown under the prerogative to admit an appeal ; and accordingly that the appeal should be dismissed."
16. In this case the election of two members of a Trade Union Council was challenged and the said Court of Appeal sitting as an Election Tribunal, heard and disposed of the election dispute. Thereupon an appeal, by special leave, was preferred to the Privy Council and the appeal was rejected, inter alia, on the following grounds:
The provisions of the Letters Patent was quoted above made it clear that the intention of the Legislature was that the dispute of the kind which had been adjudicated upon by the Court of Appeal was one which was to be decided exclusively by that Tribunal and did not contemplate the normal incidents of an appeal from such adjudication. The decision in Tehberge's case (1876) A C 102 was discussed and approved.
17. Lord Blanesburgh, delivering the opinion of the Board, has observed at page 295 thus
"To their Lordships, these words appear to be clear and distinct. They direct that all questions touching the member ship either of the Senate or Legislative Assembly created by the Letters Patent themselves shall be referred to and decided not by the First Hall of the Civil Court, or any Court of first instance, but by the Court of Appeal of Malta, the highest judicial tribunal of the Island. Even if their Lordships had in this matter been without authority to guide them, they would have been led by the words themselves to the clear conclusion that His Majesty had advisedly designated his Court of Appeal in Malta finally to determine all these questions. It appears to their Lordships that the section being found in Letters Patent, in which His Majesty's own words are used gains, in this respect an added significance, the force of which ought to have full effect given to it".
It will be seen that this case also has no manner of application to the facts of the present case.
18. We are not sitting in appeal or in revision or review in respect of an adjudication by a Special Election Tribunal under a Special Act which excludes any further appeal or revision. We are simply called upon to say what is the effect of the operation of a particular constitutional provision and to say that in the exercise of special jurisdiction conferred upon us by the Constitution itself.
19. What the petitioner has done is, that he has come before this Court with an application under Article 98 of the Constitution. The relevant portion of Article 98 runs thus:
"98. (1)
(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑
(a)
(b) on the application of any person. make an order‑
(i) directing that a person in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or
(ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
From the words of the Constitution it is clear that "any person" can ask this Court to examine the warrant by which a person is holding a "public office". Article 242, which is an interpretation clause, has defined "public office" to "mean and include any office in the service of Pakistan and membership of an Assembly". Thus under the specific provisions of the Article the petitioner was entitled to move this Court for an order under the said Constitution. By what magic then has the right of the petitioner and the jurisdiction of this Court under Article 98 disappeared and vanished Sub‑article (1) of Article 104 creates no Special Tribunal or forum for effecting the cessation of membership of any one who comes under its operation.
We have already noticed that the question raised and decided in the aforesaid case i.e., Tehberge's case (1876) 2 A C 102 and Strickland's case 1930 A C 2e5 are not the same which concern us in the present case.
20. The main features of the case before us can be summarised thus
(i) We are not in the present case deciding an election dispute.
(ii) We are not adjudicating upon facts which will lead to a disqualification of the respondents.
(iii) The cessation of membership of the respondents is the result of the operation of the Constitution itself and is not dependent upon an adjudication by this Court.
(iv) The issue is, which of the competing claims of the two provisions will prevail whether the maiden and unmodified provision of the Constitution or the said provision as touched and altered by the impugned Order
21. In reality and in substance, the main issue is, whether the impugned Order has any legal existence 7 If not, then the alterations in Article 104 (1) and the modifications in various other Articles which have been made by the impugned Order, would not be operative. In consequence thereof Articles 103 and 104 will come into full force. Inasmuch as it has not been denied that the respondents have assumed the office of Ministers in the President's Council of Ministers, Article 104 (1) would in its unmodified form entail the cessation of their membership of the National Assembly by the express terms of the said Article. It is not the Court which is disqualifying the respondents, the Constitution itself provides for the automatic cessation of their membership. It would be for the House and the Speaker to enforce the same. In these circumstances, it must be held that this point has no substance.
22. We, therefore, hold that it cannot be argued that Article 104 of the Constitution bars the jurisdiction of the Court to decide the present case. As a matter of fact, on this point the said Article has no bearing whatsoever.
23. It was next contended by the learned Attorney‑General that Article 133 of the Constitution has provided for such a bar. We shall deal with this question at some length. Article 133 reads thus:
"133. (1) The responsibility of deciding whether a Legislature has power under this Constitution to make a law is that of the Legislature itself.
(2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law."
Learned Attorney‑General has asked us to lift the word "Legislature" abstracted from its context and then to look into the lexicography provided by the Constitution, namely, the interpretation clauses of Article 242. In Article 242 the meaning of "Legislature" has been given as follows:
Legislature means the Central Legislature, each Provincial Legislature and any other authority or person empowered by or under this Constitution to make laws or to issue instruments having the force of law."
It should be remembered that Article 242 begins with the following preface:
"in this Constitution, unless the context otherwise requires . . . . ."
Therefore, this Article specifically recognises that a word in its own context can have a different meaning from that given in the relevant interpretation clause, on this question, we would like to make a passing mention of certain well‑established principles of construction and interpretation.
24. The first principle is that a Constitution or a Statute must be read as a whole (see the decision of the Supreme Court of India in the case of A. K. Gopalan v. State of Madras (A I R 1950 S C27), per E. K. Mukherjee, J., at page 93, paragraph 168.
25. The next principle is that even in a single document whether a Constitution or a Statute, the same word may have different meanings in different contexts. There are various illustrations out of which we may point to the case of Aswine v. Arabinda (A I R 1952 S C 369). In that case the words "to practice" were inter preted to mean "to act and plead" at one place and at different place they were interpreted to mean "to plead" simpliciter.
26. In the case of P. P. P. Chidambara Nadar v. Rama Nadar and others (A I R 1937 Mad. 385), it was held that Article 182 (2) of the Limitation Act applied to appeals and appeals were held to include revisional applications and the expression "revisional application" was given different meanings in different parts of the section.
27. With regard to the interpretation clause in a statute, it would be sufficient to refer to the well‑known case of Lindsay and others v. Cundy and another ((1876) 1 Q B D 384), In that case the Queen's Bench had to construe the meaning of the word "property" when section 100 of the relevant statute made it incumbent that in case of conviction of a person indicted with regard to offences against property, "the property shall be restored to the owner". The question arose whether, by compulsion of law, the property which had already passed into the hands of an innocent purchaser and which was the subject‑matter of a criminal misappropriation, would be automatically restored to the initial owner of the same. In support of such a contention the interpretation given to the word "property" under section 1 of the aforesaid Act was prayed in aid. The said section gave the meaning of the word "property" in the following terms "property" shall include not only such property as shall have been originally in the possession or under the control of any party, but also any property into which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise". It was held, after a very powerful argument from the Bar, by Blackburn, J. that it would be absurd to think that the interpretation provided by section 1 would apply to section 100. In doing so, Blackburn, J., has observed as follows: --‑
"There remains one other point only to be considered. The statute 24 and 25 Vict. c. 96, repeats in section 100, the words of the former statute of Geo. 4. In the event of conviction "the property shall be restored to the owner; but in the interpretation clause (section 1) (which is a modern innovation and frequently does a great deal of harm, because it gives a non‑natural sense towards which are afterwards used in a natural sense, without noticing the distinction), it is said. "The term property shall include every description of real and personal property, money, debts, and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and shall also include, not only such property as shall have been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise". I think that was probably meant to point to a class of cases dealt with in the Act subsequently . . . . . . The words of section 100 are: "Upon conviction the property shall be restored", and it was argued that Blenkarn was here convicted of obtaining by false pretences this property, and therefore the property shall be restored, meaning thereby not only the property which had been in the possession or under the control of the defendants, but also the money into which they had converted it by selling it . . . . . Here, it is supposed to be introduced into the law by means of the interpretation clause, which, I have already pointed out, to my mind, was intended to apply to quite a different set of cases, and has no bearing upon the restitution of property in section 100."
28. Bearing in mind the aforesaid principles, we would now examine the context in which Article 133 of the present Constitution appears. The heading is stated as follows:
"Relations between the Centre and the Province". The heading supplies the key to the Chapter. As to this, we may refer to the case of Bachu Mallikarjuna Rao v. Official Receiver Kistna and others (A I R 1938 Mad. 449 (454)).
29. In Eastern Counties Ry. Cos. v. Francis Marriage ((1862) 9 H L C 32), which concerns the construction of two sections of the Land Clauses Consolidation Act, Baron Channell, in order to ascertain the meaning of the section, discusses the value of headings in interpreting statutes. He says at page 41:
"In different parts of the Acts there are to be found classes of enactments applicable to some special object. Such enactments are in many instances preceded by a heading, special no doubt in one sense, as addressed to the object or purpose, but where not otherwise provided for, general in its application to the enactments passed to accomplish the object, These various headings are not to be treated as if they were marginal notes, or were introduced into the Act merely for the purpose of classifying the enactments, They constitute an important part of the Act itself. They may be read, I think, not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to, to explain its enactments, but as affording, as it appears to me a better key to the construction of the sections which follow than might be afforded by a mere preamble."
30. In the case of the Queen v. The Local Government Board ((1882) 10 Q B D 309), the word "decision" was construed with reference to the question as to whether there was an "appeal" from such decision; and, in construing section 268 of the Local Government Act, it was held that the word "appeal" in the heading was relevant to the interpretation of the section. Brett L. J., at page 321 of the report observes:
"That it is in some sense an appeal, although the word is not used, is obvious. I cannot come to the conclusion that the heading of a series of sections introduced into an Act of Parliament is not to be considered as part of the Act: I think the word "appeal" at the head of the section may properly be considered as part. , . . . I take it therefore that, there is an appeal given by the 268th section . . . . ."
31. In the light of the aforesaid principles, namely, that a Constitution must be read as a whole, that the heading of a chapter supplies the key‑note to the Articles that follow, that no great sanctity is attached to an interpretation clause which is D subject to the context in which the particular word or phrase is used, that the same word may have a different meaning in different contexts, if we turn back to the heading again; it is clear that the specific chapter deals with the relationship between the Centre and the Provinces. Articles 131, 132, 133, 134, 135, 136 and several Articles thereafter deal with the distri bution of legislative powers in respect of subjects of legislation between the Central Legislature and the Provincial Legislature. Article 131 (1) of the Constitution provides as follows:
"The Central Legislature shall have exclusive power to make laws (including laws having extra‑territorial operation) for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule.
Sub‑articles (4) and (5) read thus:
"(4) The Central Legislature shall have power (but not exclusive power) to make laws for the Islamabad Capital Territory and the Dacca Capital Territory with respect to any matter not enumerated in the Third Schedule."
(5) The Central Legislature shall have power to make laws for any part of Pakistan not forming part of a Province with respect to any matter.
Article 132 runs as follows:
"A Provincial Legislature shall have power to make laws for the Province, or any part of the Province, with respect to any matter other than a matter enumerated in the Third Schedule."
Then comes the Article which is the subject‑matter of the present controversy, namely, Article 133 which is devided into two sub‑articles and reads as under:
"133. (1) The responsibility of deciding whether a Legis lature has power under this Constitution to make a law is that of the Legislature itself.
(2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law."
As we have stated above, the learned Attorney‑General asked us to lift the word "legislature" and to treat it as if it occurs in a vacuum and to turn to the interpretation clause, and by such a simple process ‑arrive at the conclusion that the jurisdiction of this Court is completely ousted in respect of an investigation as to the vires of a "law" on the ground that the Legislature is not empowered to make the law. Such an interpretation of a single word divorced from its context is not permissible either on authority or on principles of construction or on plain common sense. We may, however, fortify ourselves with the observations of the Privy Council in the case of James v. Commonwealth of Australia (1936 A C 578). This is one of the most famous cases which had gone to the Privy Council from the Commonwealth of Australia. We will content ourselves with the following observations made by Lord Wright, M. R., at page 613 of the Reports as follows:
"The question, then, is one of construction, and in the ultimate resort must be determined upon the actual words used, read not in vacua but as occurring in a single complex instrument, in which one part may throw light on another" (The Italicised are done by us).
32. Bearing in mind the above observations, the result of our examination of the context is as follows:
In a specific chapter dealing specially with the relationship between the Centre and the Province, Article 133 has been interposed in a series of Articles which specifically deal with the distribution of legislative powers (relating to subjects of legislation) and. after having indicated the legislative field of the Central Legislature and the Provincial Legislatures, it goes on to say in sub‑article (1) that "the responsibility of deciding whether a Legislature has power under this Constitution to make a law is that of the Legislature itself." The word "the" prefixing the word "legislature" is a definite article pointing to a particular Legis lature which, of necessity, must mean one or the other of the Legislatures which have been mentioned in the preceding Articles. Then again sub‑article (2), on which reliance has been placed to support an argument that the jurisdiction of this Court has been ousted, states that no law passed by the Legislature can be questioned on the ground that it had no power to make the said law. Both the words, "legislature" and "power" have a special meaning in this Article in the context of the preceding and subsequent Articles and in the context of a special chapter dealing with the re lationship between the Centre and the Province. The word "power" has reference to the distribution of legislative subjects between the Centre and the Provinces. The word "legislature" refers to the particular Legislature concerned, which, of necessity, meats either the Central or the Provincial Legislature. A Legislature may not have the power to pass a law because the subject of legislation may be outside the field of the Legislature concerned. A Legislature may not also have the power to legislate in the sense that a particular kind of legislation cannot be made due to certain conditions imposed by the Constitution, for example, the legislative power of the President to promulgate Ordinances when the National Assembly is not sitting. If such an Ordinance is passed when the Assembly is in session, it will be held that the President has no such power to pass the law. The word "power" in such context clearly refers to the capacity of the President to legislate having regard to the point of time when the law is to be passed, but has no reference to the subject of legislation. In the present context it is clear that the word "Legislature" does mean the particular kind of Legislature specified in the preceding Articles and, furthermore, the word "power" has reference to the capacity to legislate having regard to the subject of legislation, that being the main thesis of the particular chapter in which the Article has been placed. The President making an Order under Article 224 (3) of the Constitution is not the sort of "Legislature" which is contemplated under Article 133. In the like manner, it cannot be said that in making an Order under the aforesaid Article 224 (3), the President is making either a Central Law or a Provincial Law. It is an Order which is in a class apart and has no nexus either with a Provincial Law or a Central Law. Similarly the "power" to make law as mentioned in Article 133 (2) is a subject‑wise power in the distribution of the legislative field of the Central and the Provincial Legislatures.
33. Even if the word "legislature" has a wider meaning there cannot be any manner of doubt that the Article 133 (2) seeks to place an embargo upon questioning the validity of a law on the ground that the said legislature has trespassed into a legislative field wherein it cannot legislate with reference to the division of subjects between the Centre and the Provinces. Article 133 (2) does not apply to an Order passed under Article 224 (3) of the Constitution.
34. The construction which the learned Attorney‑General wants to put on Article 133 (2) would mean that the validity of no law can be challenged on any ground whatsoever. He concedes that the interpretation which he has recommended to us would render the provisions of Article 6 (2) and some part of Article 8 (2) redundant. If that was the scheme of the Consti tution then the easiest thing to do was to put an omnibus and all‑embracing Article in an earlier part of Constitution in a precise language which would have excluded all law from the scrutiny of the Courts. One would, in that case, expect a provision similar to that of Article 171 (2) which runs thus:
"When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever."
The above provision spells a total embargo upon the scrutiny of the Courts or any other authority.
35. But, it is patent that the scheme of the Constitution is not to impose a complete prohibition of that sort and thus to place all laws beyond the purview of judicial scrutiny. It has punctiliously, and with meticulous care, specified the kind of law and the extent to which it has sought to oust the jurisdiction of the Courts from adjudicating upon the legality of such law.
36. We may turn to Article 6 of the Constitution which deals with the principles of law‑making and policy and, under that Chapter, it enumerates various principles including cate gories of fundamental rights such as those which had found place in the late Constitution of 1956 and still exist in the Indian Constitution. The late Constitution had imposed a duty upon the Courts to interpret and enforce the categories of fundamental rights. Article 6 of the present Constitution prohibits the Courts from adjudicating upon the vires of a legis lation on the ground that the Principles of Law‑making have been violated. The said Article 6 is bifurcated into two sub‑articles which read as follows
"6. (1) The responsibility of deciding whether a proposed law does or does not disregard or violate, or is or is not otherwise in accordance with, the Principles of law‑making is that of the Legislature concerned, but the National Assembly, a Provincial Assembly, the President or the Governor of a Province may refer to the Advisory Council of Islamic Ideology for advice on any question that arises as to whether a proposed law disregards or violates, or is otherwise not :u accordance with, those Principles.
"(2) The validity of a law shall not be called in question on the ground that the law disregards, violates or is otherwise not in accordance with the Principles of law‑making." (The Italicised are done by us).
Here the bar has been imposed upon an examination of the vires of a law on the specified ground, namely, that it violates the Principles of law‑making. The point is that this bar has been imposed in the context of the Principles of Law‑making and the words, "the validity of a law" refers to a law in relation to "the Principles of Law‑making" regard for which, is the positive requirement of the Constitution. Incidentally we might mention that the word "Legislature", which occurs in sub‑article (1) of Article 6, wherein it specifically enumerates the kind of Legislature contemplated under the said sub‑article, namely, the National Assembly, a Provincial Assembly, the President or the Governor of a Province. Indeed the interpretation clause of Article 242, which says that the word "legislature" "means the Central Legislature, each Provincial Legislature and any other authority or person em powered by or under this Constitution to make laws or to issue instruments having the force of law", fits in with the term "Legislature" as given in the sub‑article (1) of Article 6. If we may use a homely expression, the cap fits sub‑article (1), but has no manner of application 0 Article 133.
37. Then again if we turn to Article 8, we will find that it comes under the heading "Principles of Policy." The said Article is again sub‑divided into two sub‑articles which read as follows:
"8. (1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State or of the person concerned.
(2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such a ground." (The Italicised are done by us).
It is clear that in the aforesaid Article 8 (2) the prohibition upon scrutinising the validity of a law has been imposed with reference to the "Principles of Policy" as enjoined by the Constitution. The Constitution has, with a studied plan, imposed such bars on three different occasions under three different heads. This further strengthens the interpretation, namely, that the words "legislature" and "power" in Article 133 (2) have to be read wit reference to the context in which they have been used and, read in such context, the expression "legislature" cannot but mean that it has reference to either the Central Legislature or a Provincial Legislature and that the word "power" has no other connotation except that it relates to the power of either of the aforesaid Legislatures with reference to the subject‑matter of legislation in a scheme which provides for the distribution o such legislative power between the Centre and the Provinces.
38. It is significant to note that wherever in the entire body of the present Constitution the jurisdiction of the Courts to scrutinize the validity of a law has been ousted it has invariably been laid down that the "responsibility" of carrying into effect the relevant constitutional requirement or provision is upon the Legislature or authority which makes such law. In this behalf, one may compare the provisions of Articles C, 8 and 133. The "responsibility clause" runs like a refrain in all the aforesaid Articles. Conversely, when no ouster is intended the Article in question is silent on this point. This will be evident from the following paragraph.
39. Mr. Brohi has asked us, in this connection, to examine two other Articles of the Constitution, namely, Articles 142 and 217. Article 142 deais with the subject of Inter‑Provincial Trade and imposes certain prohibitions and restrictions on the Provincial Legislature. We have been asked to note, and we find that it is so, that there is no restriction imposed upon the Courts to examine the vires of the Provincial Legislature if it offends against the provision of Article 142. Besides, no responsibility has been cast upon the Provincial Legislature to decide whether the provision of the said Article 142 has been violated. Article 142 runs thus:
"142. (1) Subject to clause (2) of this Article, the Legislature of a Province shall not have power‑
(a) to make any law prohibiting or restricting the entry into, or the export from, the Province of any goods; or
(b) to impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manu factured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced ourside the Province, discriminates between goods manufactured or produced in any locality in Pakistan and similar goods produced ins any other locality in Pakistan.
(2) No Provincial Law which imposes any reasonable restriction in the interest of public health, public order or morality or for the purpose of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity shall, if it was made with the consent of the President, be invalid by reasons of this Article."
We may now turn to Article 217 which reads as follows:
"Any law which permits a person to own beneficially or possess beneficially an area of land greater than that which, immediately before the enactment of this Constitution, he could lawfully have owned beneficially or possessed beneficially shall be invalid."
40. Here again no responsibility has been cast upon the Legislature to decide whether it has the power to make laws which may permit the ownership or possession of a greater area of land than what was permitted by law prior to the enactment of the Constitution.
41. Mr. Brohi has rightly contended that it was intended that the Courts should enforce the limitation imposed by Article 217. The Article aims at protecting the vital land re forms made in pre‑Constitution days. The limitation with regard to the quantum of land to be possessed or owned by an individual in the scheme of land reforms that have been carried out in West Pakistan in the interregnum which preceded the com mencement of the present Constitution was evidently meant to be protected by Article 217. It is obvious and patent that Article 217 was designed to maintain the limitation with regard to the quantity of land to be possessed and owned as stated above. The interpretation that the learned Attorney‑General has suggested with regard to Article 133, would, reductio ad absurdum, prohibit the Courts from enforcing the provisions of Articles 142 and 217 which are matters of such great consequence. There are, advisedly, no such provisions ousting the jurisdiction of Courts from deciding the legality of a law by the Legislature as are found in Articles 6, 8 and 133 of the Constitution. Evidently the jurisdiction of the Courts to scrutinise the vires of a law, which contravenes the provisions of Articles 142 and 217, has not been taken away.
42. Thus having regard to the scheme of the Constitution and the context of Article 133, as discussed above, there can be no escape from the conclusion that the word "Legislature" and the word "power" must be interpreted in the restricted sen e indicated above. We have already stated that the interpretation clause of Article 242, which gives a special meaning of the word "Legislature" applies to that word as used in the context of sub‑article (8) of Article 6. We, therefore, hold that Article 133 does not debar this Court from examining the vires of the impugned Order passed by the President of Pakistan under E Article 224 (3) of the Constitution.
43. We shall now deal with the third and last plea in bar raised on behalf of the respondents, by the learned Attorney General. He has argued that the term "difficulty", in Article 224 (3) of the Constitution; is incapable of being decided objectively with reference to evidence and facts. He has sub mitted that the assessment of a "difficulty" is, of necessity, dependent upon a subjective test in the same manner as the word "emergency" simpliciter is incapable of a simple objective test. Illustrating his argument he has contended that this Court is incapable of adjudicating upon the question whether any difficulty existed in this case as stated in the Preamble of the impugned Order. In support of this contention reliance was placed on a decision of the Privy Council in the case of Emperor v. Benoari Lal Sarma and others (A I R 1945 P C 48).
Our attention was drawn to the following observations made by Viscount Simon, L. C., at page 50 of the report:‑
" The Governor‑General purported to make and promulgate the Ordinance under a power conferred on him by para. 72 of Schedule 9, Government of India Act, 1935. That paragraph which must, of course, be read in the light of the India and Burma (Emergency Provisions) Act, 1940 (Where under the operation of the words for the space of not more than six months from its promulgation was suspended during the period therein specified) provides as follows:
The Governor‑General may, in cases of emergency, make and promulgate Ordinances for the peace and good Govern ment of British India or any part thereof, and any Ordinance so made shall; for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.
It is to be observed that the paragraph does not require the Governor‑General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view, that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2nd January 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7th December; Rangoon had been bombed by the enemy on 23rd December and again on the 25th December; earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth. Their Lordships entirely agree with Rowland J.'s view that such circumstances might, if necessary, properly be considered in determining whether an emergency had arisen; but as that learned Judge goes on to point out, and as had already been emphasised in the High Court, the question whether an emergency existed at the time when an Ordinance is made and promulgated is a matter of which the Governor‑General is their sole judge." (The Italicised are done by us).
44. It is sufficient to say at this moment that the aforesaid observation has no relevance to the facts of this case. We shall, however, refer to a subsequent portion of the judgment delivered by Viscount Simon, L. C. which, in our opinion, runs counter to the argument that has been advanced on behalf of the res pondents. It should be noted that, after enumerating various factors which leave no manner of doubt that an emergency existed in India at the time when the legislation impeached before the Privy Council was enacted, Viscount Simon, L. C., however, proceeded to say that an "emergency" is a subject which must be left to the direction of the Governor‑General. We are in respectful agreement with the aforesaid dictum of Viscount Simon, L. C. emergency is a concept which, of necessity, is incapable of an objective test in the sense that it is often difficult to lead evidence from which an "emergency" can be inferred. It is a concept which is purely dependent upon a subjective satisfaction of the man who is called upon to decide as to whether an emergency exists. Emergency has often to be judged upon secret information s,---information s which, if divulged, would defeat the very scheme for meeting the emergency. It is, in essence and in substance, a matter of opinion to be formed on a general appraisal of a situation which it is almost next to impossible to re‑enact before a Court of law. This point has been further and more fully elucidated by the Privy Council in the case of Bhagat Singh and others v. Emperor (A I R 1931 P C 111). In that case Viscount Dunedin after enumerating the said section 72 of the, Government of India Act, observed as follows
"The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action which is to be judged as such by some one. It is more than obvious that some one must be the Governor General and he alone. Any other view would render utterly inapt the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor‑General. It is he alone who can promulgate the Ordinance."
45. It is, therefore, clear that, because of the special situation that is created by an emergency, the matter, of necessity, has to be left for the satisfaction of the Governor-General who has been empowered to take various steps in such a situation. However, we may note that the word "emergency", as it appears in the Government of India Act, is an undefined and unqualified emergency.
46. But, suppose a statute speaks of a defined, qualified and restricted emergency. Suppose for example, a provision of a statute to the following effect: --‑
"In case of a general dislocation of communication arising out of a Railway Strike or a General Strike or a Bus Strike, the President is empowered to take such effective steps to meet the emergency as he thinks fit and proper."
47. In such a context the emergency is not undefined or unqualified; the emergency is defined in the sense that it is co- related to a general dislocation of communication arising from a general strike or a railway strike or a bus strike. This is essentially a matter which is capable of proof in a Court of law by evidence. It is one of the easiest things to establish, by evidence, whether a general strike prevails in the country. As a matter of fact, the Court can take judicial notice of such a fact. It is also equally easy to establish whether in a particular city or town there is a bus strike. In the same manner a tramway strike is a matter which is capable of adjudication in a Court of law. If an emergency is co‑related to such a condition and if the exercise of power is dependent upon an emergency which is qualified in the sense that it is upon such emergency that the power can be exercised, it will be open to a Court of law to examine whether an emergency of the kind that has been mentioned above actually exists. In the like manner if Article 224 (3) of the Constitution, instead of reading as it does, had run as follows :‑
"At any time before the commencing day or before the expiration of three months after the commencing day, the President may remove any difficulty and, for that purpose, may direct by Order that the provisions of this Constitution shall, during such period as is specified in this Order, have effect subject to such modifications, additions or omissions which the President may deem fit and proper."
In such a context, in all probability, we might have held that there is a difficulty which is incapable of definition and, therefore, it is a kind of "difficulty" which is for the President alone to decide.
48. We are, however, faced with the fact that the difficulty if under Article 224 (3) of the Constitution is al concrete difficulty directed towards one simple end, namely, towards bringing the Constitution into operation.
Sub‑article (3) occurs in the Article which deals with the commencement of the Constitution. It further occurs in Chapter 2 of Part XII of the Constitution, The heading of the chapter is "Commencement of Constitution, an‑ Repeal and Continuances of Laws." We shah deal more fully with this question hereafter. All that we wish to emphasise is the fact that the word "difficulty" has not been used in the abstract or in a vacuum. It is not an undefined difficulty; it is a difficulty which is fixed with a purpose and, therefore, it is a kind of difficulty which is capable of adjudication and is justiciable in a Court of law when it is challenged that an Order made under Article 224 (3) has travelled beyond the scope and object of that Article and is therefore ultra vires the Constitution. In fact, in quite a large number of cases, both in India and in this country, (some of which we shall discuss hereafter) the vires of an order passed by the King‑in‑Council, the Governor‑General or the President under almost identical provisions have been examined by the Courts. Thus, it is patent that this point, which was so strenuously canvassed by the learned Attorney‑General, cannot also be upheld.
49. Having disposed of all the pleas in bar of the present application, we would point out that petitioner has invoked a jurisdiction of this Court which has been specifically conferred by the Constitution. The examination of the vires of the impugned Order passed under Article 224 (3) is a necessary incident which is vital to the proper exercise of such jurisdiction. in dealing with the present case, this Court must, of necessity, adjudicate upon the legality of the impugned Order, namely, the aforesaid Order No. 34.
50. In this connection, Mr. Brohi has cited the oft‑quoted dictum of Lord Selborne in the case of Queen v. Burah (L R 5 I A 168). The relevant passage at page 193 is as follows:
"The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits has been exceeded, must of necessity, determine that question: and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively they are restricted."
It cannot be doubted for a moment (and the proposition is so. well‑settled that it need hardly be repeated) that this Court has not only the jurisdiction to adjudicate upon the vires of the impugned Order, but, it is also evident, that m this case it is they duty of this Court to do so. We may say, in all fairness to the learned Attorney‑General, that this is a proposition which was not for a moment contested by him.
51. We would now examine the provisions of Article 224 (3) of the Constitution under which the impugned Order is purported to have been passed. Article 224 (3) reads thus:
"At any time before the commencing day or before the expiration of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution, or any provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect) direct, by Order, that the provisions of this Constitution shall, during such period as is specified in the Order have affect subject to such adaptations whether by way of modification, addition or omission, as he may deem to be necessary or expedient." (The Italicised have been done by us.)
We may remind ourselves that it is a sub‑article of an Article which deals with the "commencement" of the Constitution under a heading and a subject which has been so nominated. This Article, namely, Article 224, seeks to bring the Constitution into force. This sub‑article deals with a power which, of necessity, has to be conferred on some authority whenever a new constitution has to be brought into existence, bearing in mind that no man‑made Constitution can be so perfect that there will be no difficulty whatsoever, in bringing the Constitution into operation. Gaps may become visible, which were un-forceable at the time when the Constitution was framed. There may be undetected clashes between some of its provisions. The sub- article, in order to meet such difficulties, vests President with a special power of, what is known as, making temporary "adap tations". Such adaptations have been usually given in the recent Constitutions prevailing in our sub‑continent under two different heads. Under one head a power is usually conferred on the Governor‑General or President to adapt the existing law to the provisions of the Constitution. Under another head such authority is invested with the power of removing, by adaptation, any difficulty in implementing the Constitution itself. We may mention that sections 310 and 293 of the Government of India Act, 1935, deal with the aforesaid kinds of adaptations. Similarly, Articles 372 and 392 of the Indian Constitution provide for similar arrangement. The corresponding Articles in the late Constitution of 1956 are Articles 224 and 234 and in the present Constitution they are provided in Articles 225 (4) and 224 (3).
52. We may note here that the power conferred upon the President to remove a difficulty in bringing the Constitution or any of its provisions into force by way of making suitable adaptations has been specifically provided in Article 392 of the Indian Constitution, Article 234 of our 1956 Constitution and Article 224(3) of our present Constitution. The power given by Article 392 of the Indian Constitution and by Article 234 of our Constitution of 1956 was somewhat wider than that with which our President has been invested in terms of Article 224 (3) of the present Constitution. The language of Article 224 (3) of our Constitution is more precise, the context is more specific and the purpose is definite and restricted to one single object. The context is the "commencement" of the Constitution, the power is to make "adaptations" and the "sole purpose" is to bring the provisions of the Constitution into operation by removing any difficulty which obstructs such operation of the said provisions. The difficulty contemplated in Article 224 (3) is a physical difficulty in the locomotion of the constitutional machinery.
53. The first question that strikes us is, what is the import of the term "adaptation" in the context of the present Constitution as distinguished from the term "amendment "7 A Constitution 'is a solemn and sacred document of seminal and supreme consequence, partaking the nature of almost scripture sanctity, embodying, as it usually does, the final will and testament of the sovereign authority that resides in the people and providing the manner and norms of the Government of a nation. It therefore, assumes something of the immutability of the laws of the Medes and the Persians. It is not subject to easy change which is usually effected by a special and somewhat difficult process. In the present Constitution the provisions with regard to "amendment" of the Constitution have been enumerated in Articles 208 to 210. We may note that it requires a two‑thirds majority of the Legislature to effect an amendment in the Constitution.
54. Article 224 (3), on the other hand, deals with "adaptation". Although "adaptation" is, in a sense, amendment, the Constitution recognises a distinction between the expression "amendment" and the term "adaptation". We may discuss a few cases which illustrate the difference.
55. In the case of Punjab Province v. Daulat Singh (A I R 1941 Lah. 182), Dalip Singh, J., delivering the judgment of the Full Bench, has observed at page 184 of the report as follows:
"It appears to me that all that section 293 enacts is a power given to His Majesty in Council to adapt Acts already in force to bring them into accord with the provisions of the Government of India Act and what is contemplated is for mal or consequential amendment arising in the Act due to the passing of the Government of India Act. I do not think that section 293 means that if His Majesty has made any Act the subject of an Adaptation Order, then that Act ipso facto becomes valid even though its provisions conflict with the provisions of the Government of India Act."
56. In the case of Sajawal Baksh v. Muhammad Hussain (A I R 1943 Lah. 233), Abdul Rashid, J., (as he then was) has observed at page 236 of the report as follows:
"In my opinion, this contention is without any force. Sections 292 and 293 save the operation of the existing laws of India which were in force when Part 111, Government of India Act, came into operation. Section 293 deals with for mal adaptations and modifications which had to be made in a large number of Acts in force in India in order to bring the phraseology used in the Government of India Act. Section 293 cannot, therefore, override the provisions of section 238, Govern ment of India Act." (The Italicised have been done by us).
57. In the case of Ziaul Huq v. Government of West Pakistan (P L D 1956 Lah. 358), M. R. Kayani, J. (as he then was) has, with reference to the same provisions of the Government of India Act, observed as follows:
"The meaning is that the Governor‑General may for the purpose of adaptation of laws, make repeals of, omissions from, addition to and modifications of any Act. It is equally clear that any alteration is to be made only for the purpose of adaptation of laws that is, if the laws existing on the date of integration do not suit one another or fit into one another, they will be made to fit . . . . . But where a function was entrusted to the Government, the transfer of that function to another authority would in no sense constitute a purpose which would be sub‑servent to adaptation. The test of adaptation lies in the fact that, but for the alteration carried out, the law which has been altered will not be correctly applicable to the new surroundings."
58. The distinction between "amendment" and "adaptation" may be stated thus : In a loose and popular sense, it may be permissible to say that adaptation is a kind of amendment ; but the distinction which the Constitution has maintained is, that amendment is for all purposes. It may be made at any time and is usually permanent ‑in character. It may, but need not be, temporary. Adaptation is modification for a limited purpose and under Article 224 (3) it is confined to a specific purpose.
59. In this context, it will be useful to discuss the following cases :‑
In the case of Zaln Noorani v. Secretary of National Assembly of Pakistan (P L D 1957 Kar.1), Inamullah, J., in pronouncing one of the majority judgments of the Full Bench, has observed at page 18 as follows:
"Coming to the next contention of the learned Attorney General that the language of Article 234 of the Constitution was wide enough to empower the President to modify the period provided under Article 141 of the Constitution for holding bye‑election, I am of the view that 234 does not contemplate removal of difficulties created by non‑observance of the Constitution itself. The object underlying Article 234 appears to be this that if any provision of the law does not fit in with the Constitution, the Constitution may be adapted, i.e., made to fit. Article 234 of the Constitution itself particularizes one class of difficulties. The difficulties con templated by Article 234 of the Constitution should, in my opinion, be of similar nature as particularised under Article 234."
In the same case at page 42 of the report, Lari, J., observed thus:
"It has been observed by Inamullah, J., and respectfully assented to by myself and my brother Wahiduddin, J., that adaptation is not permissible when difficulty arises solely, because of the non‑observance of any particular provisions of law."
60. Article 234 of the 1956 Constitution is almost similar to the provisions of Article 224 (3) of the present Constitution, except that the power of adaptation under Article 224 (3) of the present Constitution is strictly restricted. It would be seen from the decision in Zain Noorani's case, that Inamullah, Wahiduddin, and Lari, JJ, have held that a "difficulty" created by non compliance with a provision of the Constitution is not a difficulty within the meaning of Article 204.
61. In the case of Siraj‑ud‑Din v. State (P L D 1957 Lah. 962), S. A. Rahman, C. J., referring to Article 224 (2) of the late Constitution of 1956, has observed at page 967 of the report as follows:
"In a recent judgment of the Supreme Court in Remington Rand of Pakistan v. The Islamic Republic of Pakistan (1958) 10 D L R (S C) 84 = P L D 1957 S C (Pak.) 170, the learned Chief Justice of Pakistan observed that adaptation' does not include that making of fresh laws and is confined to the making of verbal changes in a law to suit its provisions to the changed conditions. In my view this dictum of his Lordship clearly governs the situation in the present case, and it would be wrong to assume that by virtue of clause (2) of Article 224 of the Constitution, the President could make any but verbal changes in the relevant law so as to bring it into consonance with the constitutional provisions."
It would appear from the above case that the making of afresh law is not "adaptation".
62. In P L D 1957 S C (Pak.) 219=(1957) 9 D L R (S C) 178 on a reference made by the President of Pakistan, Munir, C. J., in delivering the opinion of the Supreme Court of Pakistan, repelled the contention that the President, in the exercise of his power under Article 234 of the 1956 Constitution, could destroy a basic or vital provision of the Constitution. At page 238 [corresponds to para. 34 of D L R (S C)] of the report, his Lordship has observed thus:
"The Constitution defines qualifications which a candidate for election to the Provincial Assembly, or a voter in a consti tuency for such Assembly must possess but Mr. Manzur Qadir would give to the President under Article 234 the power to destroy, though for a temporary period, the very basis of the new Constitution by claiming for him the power to form the constituencies and to order the preparation of electoral rolls in direct violence of the Constitution merely to implement the decision of a Governor."
The aforesaid dictum of the Supreme Court of Pakistan is a pointer that in the case before us the power of "adaptation" does not extend to the wiping out of a vital provision of the Constitution to implement a decision of the members of the Assembly who were invited to be Ministers.
63. We may now turn to another line of cases where a provision similar to that of Article 225 (4) of the Constitution (as embodied in Article 372 of the Indian Constitution) was construed to authorize adaptations to be made in order to bring existing laws in consonance with the provisions of the Con stitution. The important thing to note is that in the under‑noted cases it has been held that it is permissible to adapt an existing law to the Constitution, but it is not permissible to do the contrary act, namely, to modify the Constitution so that it may fit in with the existing law. We may refer to the following cases in this connection: Ram Sahay v. Ram Sewak (A I R 1956 All. 321 at 323), Munna Lal v. H. R. Scott (A I R 1953 Cal. 451 at 455) and Ramananda v. The State (A I R 1951 Gal. 120 at 122).
64. On all analysis of Article 224 (3) of the present Con stitution the following salient features emerge: The President' has been empowered to make certain adaptations solely for the purpose of bringing the Constitution or its provisions in operation. The conferment of power is to help him to remove any impediment which may come in the way, for example, a lacuna in the Constitution which may create a difficulty in the operation of any of its provisions.
65. This point may be best illustrated by referring to the case of Shankari Prasad v. Union of India (A I R 1951. S C 458), decided by the Supreme Court of India. The background of the case may be briefly stated thus: Under Article 368 of the Indian Con stitution amendment of certain class of its provisions could only be made by a special majority, namely, by the majority of membership of each House (of the bicameral Legislature) as well as by a majority of two‑thirds of the members of that House present and voting. Article 379, however, provided that until both the Houses of Parliament are constituted, the Constituent Assembly of India would function as the Provincial Parliament which shall perform all the functions and all the duties of the Parliament (which would be bicameral). A difficulty was felt as to how the aforesaid requirement of Article 368 requiring a special majority of both the Houses for amending the Con stitution could be fulfilled by a unicameral Constituent Assembly acting as a Provincial Parliament. As it was empowered to perform all the functions of Parliament it could also perform the function of amendment under Article 368. There was an obvious difficulty in strictly complying with the terms of Article 368 and Article 379. If both were to operate smoothly an adaptation was called for resolving the verbal clash between the two. The said Articles had to be fitted into the frame‑work of each other so that the provisions of both could be brought into operation by suitable adaptation. If either of the two Articles were to be wiped out, it would not be adaptation but amendment. The difficulty was resolved by an Order made by the President of India under Article 392 which runs thus
"392. (1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient
Provided that no such order shall be made after the first meeting of the Parliament duly constituted under Chapter 2 of Part V.
The President passed an Order, called: "The Constitution (Removal of Difficulties) Order No. 2", by which the requirement of the special majority (two‑thirds of members present and voting) as specified in Article 368 was maintained, but the said Article was adapted to Article 379 by saying that the unicameral provisional Parliament, namely, the Constituent Assembly, could make an amendment by a two‑thirds majority of its members as required by Article 368. Thus both the Articles were made to co‑exist. In upholding the validity of the aforesaid Order made by the President, Patanjali Shastri, J., in delivering the judgment of the Supreme Court, observed at pages 462‑463 of the report thus:
"It is true enough to say that difficulties must exist before they can be removed by adaptation, but they can exist before an occasion for their removal actually arises. As already stated, difficulties are bound to arise in applying provisions, which, by their terms are applicable to a Parliament of two Houses, to the Provisional Parliament sitting as a single Chamber. Those difficulties, arising as they do out of the inappropriateness of the language of those provisions as applied to the Provisional Parliament, have to be removed by modifying that language to fit in with the situation created by Article 379. There is nothing in that Article to suggest that the President should wait before adapting a particular Article, till an occasion actually arose for the Provisional Parliament to exercise the power conferred by that Article. Nor is there any question here of the President removing by his adaptation any of the difficulties which the Constitution has deliberately placed in the way of the amendment. The adaptation leaves the requirement of a special majority untouched. The passing of an amendment bill by both Houses is no more a special requirement of such a bill that it is of any ordinary law made by Parliament. We are, therefore, of opinion that the adaptation of Article 368 by the President was well within the powers conferred oz him by Article 392 and is valid and constitutional."
66. It may be noted that in the aforesaid case Order impeached before the Supreme Court was upheld (a) because there was a real "difficulty" which arose out of "the inappropriateness of the language of Article 368" when applied to the provisions of Article 379; (b) because the said "difficulty" was removed by modifying the language of Article 368 in order "to fit in" with the provisions of Article 379 so that both the Articles could function side by side; this is adaptation in the true sense of that term ; (c) because the impugned Order did not wipe out any of the require ments of Article 368 which the Constitution had deliberately and consciously intended to prevail ; (d) because the basic provision of Article 368, namely, the special majority of two‑thirds of the members was left untouched ; (e) because it was obvious from the language of Articley379 that the provisional unicameral Parliament could perform all the functions assigned to a Parliament consisting of two Houses. Incidentally, we may mention, as noted by the Supreme Court in the aforesaid case, that the language of Article 392 of the Indian Constitution is wide‑wider, we may add, than that of Article 224 (3) of our Constitution. The above mentioned case is a good illustration of what is signified by the expression "adaptation".
67. Reverting back to Article 224 (3), it is evident from the language of the said sub‑article that there is no manner of doubt that the removal of difficulty must be directed towards one end only, namely, towards bringing the provision of the Constitution into operation. That is, adaptation can be made only when it is not physically possible for a provision to come into force without the removal of a difficulty which is an obstacle in the way of its commencement. It is also important to remember that in our late Constitution as well as in the Indian Constitution Articles 234 and 392, respectively, are placed in the Chapter which deals with "Transitional and Temporary Provisions", whereas in our present Constitution Article 224 (3) comes under the heading "Commencement of the Constitution". Article 224 specifically deals with such commencement and the provision with which we are dealing is a sub‑article thereof.
68. We have set out above the impugned Order in to. It will be observed that the preamble fully specifies and enumerates the various difficulties which have been felt. When they are so specified, a Court of law cannot ignore the same. Because of the specification of the reasons for passing the Order as set out in the Preamble, the impugned Order can be appropriately described as a "speaking order" within the meaning of the phrase as used ii: the case of Rex v. Northumberland Compensation Appeal Tribunal. Ex parties Shaw ((1951) 1 K B 711) and in Rex v. Northumberland Compensation Appeal Tribunal, Ex parle Shaw ((1952) 1 K B 338). The aforesaid phrase has been used by Lord Cairns and Lord Goddard to mean an Order which is not "mute" but specifies the reasons for which it was passed. When the Order "speaks", the Courts will consider the same.
"To assist him in the performance of his functions, the President may, from amongst persons qualified to be elected as members of the National Assembly, appoint persons to be members of a Council of Ministers, to be known as the ;President's Council of Ministers".
69. Mr. Brobi has argued that Article 33 of the Constitution imposes no obligation upon the President to appoint a Council of Ministers, He has drawn our attention to the provisions of the 1956 Constitution which made it obligatory on the President to appoint a Council of Ministers. The President was bound by their advice. He has contended that unlike the 1956 Constitution the present Constitution merely "provides" for the appointment of Ministers. It was, therefore, argued that Article 33 merely confers on the President a discretion to appoint a Council of Ministers, but he is not bound to do so.
70. Learned Attorney‑General, on the other hand, has drawn our attention to Article 238 of the Constitution which reads thus:
"238. (1) A person holding office as President at any time within the period of twenty years after the commencing day shall ensure that, for the purpose of advising the President in relation to the defence of Pakistan, at least one of the persons appointed by him as a Minister is a person who hits held a prescribed rank in the Defence Services of Pakistan, unless the President has himself held such a rank in those Services.
(2)
71. Reading Articles 33 and 238 of the Constitution together, he has argued that Article 33 confers a discretion coupled with a duty.
But, for our purposes nothing turns on the aforesaid inter pretation of Article 33. The crux of the matter is that nowhere in the Constitution there is any obligation to appoint members (or some members) of the Assembly in the formation of the Council of Ministers under Article 33. It is permissible to appoint members of the Assembly to the Council of Ministers, but it is not obligatory to do so.
The Preamble next recites that, "whereas Article 104 requires that if a member of an Assembly is appointed as a Minister of the President's Council of Ministers or of a Governor's Council of Ministers, he shall cease to be a member of the Assembly." It further says : "And whereas members have expressed unwilling ness to accept the office of the President's Council of Ministers and Governor's Council of Ministers if they are thereupon to cease to be members of the Assembly". It states the difficulty thus: "And whereas a difficulty has arisen which prevents the formation of the President's Council of Ministers and the Governor's Council of Ministers and carrying on of the business of Government and that difficulty requires to be removed". In this context, the further reason, which is stated, is that it is expedient and necessary that some members of the Assembly be appointed as members of the President's Council of Ministers. The real "difficulty" has arisen because some members of the Assembly have "expressed unwillingness to accept the office of the President's Council of Ministers . . . . . If they are thereupon to cease to be members of the Assembly". The difficulty has arisen out of a situation which has been created by some members of the Assembly, whom the President considered fit for being appointed as Ministers.
72. The sort of difficulty specified in the impugned Order is not a "difficulty" within the meaning of Article 224 (3) of the Constitution. If the Constitution had made it obligatory that the President's Council of Ministers must consist of members o the Assembly or if it had been incumbent that some proportion o the said Council must be members of the Assembly, then it might have been possible to say that there has arisen a "difficulty" which must be resolved. As we have already noted above, the removal of a difficulty under Article 224 (3) must be directed towards eliminating any obstruction or impediment in the way of bringing a provision of the Constitution into operation. Article 224(3) does not permit the converse proposition, that is, it does not allow a provision of the Constitution to be changed or modified in order to resolve a political difficulty created by some members of the Assembly on their declining to be appointed a Ministers, if thereupon, they cease to be members of the Assembly.
73. It is not the case that it is not physically possible to bring into operation the provisions of Articles 33 and 104 (1). It is said that if they are brought into force (and no difficulty has been discovered in bringing them into operation) the con sequence would be that a Council of Ministers cannot be formed with an admixture of the members of the Assembly. The difficulty does not lie in operating the foresaid provisions of the Constitution, but in the unpleasant consequence that would follow, namely, a Cabinet of Ministers cannot be formed with the inclusion of some suitable members of the Assembly. The Constitution was, therefore, changed to suit the demands of the would‑be Ministers, who happen to be members of the Assembly.
74. Now, this is exactly the kind of thing that could not be done under Article 224(3). This is outside the scope of Article 224 (3) and comes within the province of amendment under Articles 208 and 209.
75. It is but natural that the President should desire, what according to him, is a suitable Council of Ministers and he, and he alone, is the sole judge of the suitability of his Council, which is to be a body of his advisers. But, the problem which confronted him could only be solved by taking recourse to the amending provisions of the Constitution. The office of Article 224(3) is of a totally different character. What has been done is, in a real sense, "amendment" as provided by Articles 208 and 209 of the Constitution and not "adaptation" under Article 224(3).
76. Article 104 (1) and the allied Article relating to the same subject constitute one of the main pillars of the Constitution which envisages a sort of Presidential form of Government where the Ministers are not responsible to the Legislative Assembly, but to the President himself. Such a provision arises from a doctrine of separation of powers which a Presidential pattern of Government seeks to follow. This concept of a separation of the executive body from the Legislature, borrowed as it is from the Constitution of U. S. A., is the very basis of present Constitution. Mr. Brohi has aptly described it as the corner‑stone which supports the arch of the Constitution. By one sweep of the pen, a vital provision of the Constitution has been wiped out without resorting to the special and massive machinery of amendment, namely, the provisions of Articles 208 and 209.
77. It is of the very essence of a written Constitution that it is not susceptible of an easy change. The requirement of two- thirds majority is an effective check on the whim or the iconoclastic mood of bare legislative majority. It would have been surprising if, in such a context, the Constitution had countenanced what indeed, is amendment, by a simple process of "adaptation" within the meaning of Article 224 (3).
78. The text of Article 224 (3) is very clear and unambigous. It does not permit alterations of the provisions of the Constitution for a solution of a political situation brought about by some members of the National Assembly who refused to accept appointments as Ministers, if such appointments entailed cessation of their membership of the Assembly.
79. We, therefore, hold that the impugned Order 34 of 1962 is void and inoperative being in excess of the powers of the P President conferred by Article 224 (3) and, it is in that sense, ultra vires the Constitution.
80. We would like to refer to one more provision of the impugned Order which was. not placed or mooted before us, namely, clause 6 thereof which reads thus:
"In Article 224, after clause (3), the following new clause (4). shall be inserted, namely:‑
(4) The validity of any Order made, or purporting to have been made, under this Article shall not be called in question".
This newly added sub-article (4) seeks to debar the Courts from examining the validity of an Order that has been passed under Article 224 (3). If we are correct in our view that the President exceeded his powers in passing the impugned Order in respect of the alterations that have been made to the Articles specified in. the impugned Order, the sub‑article which seeks to bar the jurisdiction of this Court is obviously bad. Indeed, the said sub‑article (4) added to Article 224 is plainly and ex facie bad. What difficulty in the operation of the provisions of the Constitution does this sub‑article remove Learned Attorney General has frankly conceded that if he fails in his contention as stated above, there is no point in maintaining that clause (6) of the impugned Order which introduced sub‑article (4) to Article 224 is within the purview of Article 224 (3).
81. We may add that the learned Attorney‑General very rightly refrained from canvassing before us that this petition should be disallowed because the petitioner came to this Court several months after the appointment of the respondents as Ministers. The present Constitution is a very young instrument of Government and has hardly emerged out of its swaddling clothes. Most of its provisions are novel and unfamiliar in this ' country. It takes time to understand them. The petitioner has, in such a situation, by no means, been guilty of any inordinate delay in moving this Court under Article 98 in an application Y which is something like "an information in the nature of quo warranto". We think that there is substance in what Mr. Brohi had said at the preliminary hearing when the present Rule nisi was issued, that having regard to this application and its attendant circumstances, the petitioner has come to this Court with reasonable promptness. On the other hand, if we are correct in holding that the respondents have ceased to be members of the National Assembly by operation of the Constitution, we will not be justified fn allowing the continuance of such an illegality in breach of the Constitution. We would not labour this point any further as it was not at all mooted before us.
82. In these circumstances, we hold that the impugned Order No. 34 of 1962 is void and inoperative in to. The said Order is ultra vires the powers of the President under the Constitution.
83. The result, therefore, is, that the provisions of Articles 25, 75, 103, 104, 120, 224 and 242 of the Constitution have continued to remain in force since the date when the Cons titution was first proclaimed, unmodified by the impugned Order. In consequence thereof, the un-amended and unmodified Article 104 (1) of the Constitution continues to operate in full force. The effect of Article 104 (1) is, that Ministers, whether) Central or Provincial, have ceased to be members of the Assembly to which they have been elected, consequent upon their respective appointments as Central or Provincial Ministers.
84. In passing, we may mention that nothing that we have said will apply to certain additions that have been made in respect of Article 104(2) by another Order passed under Article 224(3).
85. In the result, the respondents have already ceased to be members of the National Assembly of Pakistan from the date on which they entered upon their respective appointments as such Ministers.
86. We, therefore, make the Rule absolute in terms of the orders which we have made above. There will be no order as to costs.
Learned Attorney‑General has asked for a certificate under Article 58(2) (a) of the Constitution and we accordingly do so:
It is hereby certified that this case involves a substantial question of law as to the interpretation of the Constitution within the meaning of Article 58 (2) (a) thereof.
A. H.
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