MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

IN THE SUPREME COURT OF PAKISTAN 

(Original Jurisdiction) 

PRESENT: 

CONSTITUTION PETITION NO. 1 OF 2008 

MR. JUSTICE ABDUL HAMEED DOGAR, HCJ 

MR. JUSTICE FAQIR MUHAMMAD KHOKHAR 

MR. JUSTICE IJAZ-UL-HASSAN 

MR. JUSTICE MOHAMMAD MOOSA K. LEGHARI 

MR. JUSTICE CH.EJAZ YOUSAF 

MR. JUSTICE SYED SAKHI HUSSAIN BUKHARI 

MR. JUSTICE SYED ZAWWAR HUSSAIN JAFFERY 

Re: 

Condition of graduation for contesting election of the Majlise-Shoora 

(Parliament) and the Provincial Assemblies 

Muhammad Nasir Mahmood and another … PETITIONERS 

VERSUS 

Federation of Pakistan through 

Secretary Ministry of Law, Justice and 

Human Rights Division, Islamabad. … RESPONDENT 

For the petitioners: 

For the respondent: 

Applicant in 

CMA No. 996/08: 

On Court Notice : 

Mr. Kamran Murtaza, ASC. 

Qari Abdul Rashid, ASC. 

Ch. Muhammad Akram, AOR. 

Raja Niaz Ahmed Rathore, DAG. 

Ms Nahida Mahboob Elahi, DAG. 

Raja Abdul Rehman, DAG. 

Haji M. Rafi Siddiqui, ASC. 

Mr. M. S. Khattak, AOR. 

Dr. M. Aslam Khaki, ASC. 

Malik Muhammad Qayyum, 

Attorney General for Pakistan 

assisted by Ch. Naseer Ahmed, ASC 

& Rai M. Nawaz Kharal, ASC. 

Dates of hearing : 18 & 21 April, 2008. 

JUDGMENT 

ABDUL HAMEED DOGAR, C.J. – By means of this 

Constitution Petition under Article 184(3) of the Constitution of the


AND CMA NO. 994 TO 996 OF 2008 2 

Islamic Republic of Pakistan, 1973 (the Constitution), the petitioners 

have called in question the validity of the provisions of Article 8-A of 

the Conduct of General Election Order, 2002 (Chief Executive’s Order 

No. 7 of 2002) and clause (cc) of subsection (1) of section 99 of the 

Representation of the People Act, 1976, on the touchstone of Articles 

17 and 25 of the Constitution. The impugned provisions laid down 

that a person would not be qualified to be elected or chosen as a 

member of Majlis-e-Shoora (Parliament) or a Provincial Assembly 

unless he was at least a graduate possessing a bachelor degree in any 

discipline or any degree recognized as equivalent by the University 

Grants Commission under the University Grants Commission Act, 

1974, or any other law for the time being in force. 

CMA No.996/2008 

2. During the course of proceedings, Dr. M. Aslam Khaki, 

ASC filed Civil Miscellaneous Application No. 996 of 2008 for his 

impleadment as a respondent/party to the above Constitution 

Petition on the ground that he would support the impugned 

provisions of law laying down the qualification of being a graduate to 

contest election to the Parliament and the Provincial Assemblies. He 

submitted that previously he had filed the Deeni Madaras Certificates 

Equivalence case as pro bono publico. Since the present Constitution 

Petition involved a question of general public importance and he 

being a public spirited person, he prayed that he may be allowed to 

address the Court. The learned Attorney General for Pakistan and Mr. 

Kamran Murtaza did not oppose the application. Therefore, Mr. Khaki


AND CMA NO. 994 TO 996 OF 2008 3 

was allowed to address the Court on the issues involved in the 

present Constitution Petition. 

3. The case of the petitioners is that they are the citizens of 

Pakistan and by the promulgation of Article 8-A of the Conduct of 

General Election Order, 2002 and clause (cc) of subsection (1) of 

section 99 of the Representation of the People Act, 1976 they have 

been deprived of their Fundamental right to contest election and to 

form government as interpreted by this Court in various judgments as 

a natural corollary of the right to form or be a member of a political 

party guaranteed under Article 17(2) of the Constitution. The learned 

counsel for the petitioners has made the following submissions: - 

(1) The fundamental right enshrined in Article 17 of the 

Constitution is subject to “any reasonable restrictions 

imposed by law in the interest of the sovereignty or 

integrity of Pakistan or public order,” but the condition of 

graduation qualification for contesting election does not 

fall within the ambit of the above controlling clause 

inasmuch as the said qualification cannot be said to have 

been imposed in the interest of the “sovereignty or 

integrity of Pakistan, public order or morality.” 

(2) By laying down the qualification in terms of education, an 

elitist class has been created. The acquisition of education 

is directly related to, and dependent upon the prevailing 

conditions in which a person may find himself. Thus, 

educational qualification for contesting election 

constitutes discrimination, which is prohibited under 

Article 25 of the Constitution and is, therefore, liable to be 

struck down. 

(3) The impugned qualification is not a reasonable 

classification within the scope of Article 25 as interpreted 

in I.A. Sharwani’s case (1991 SCMR 1041).


AND CMA NO. 994 TO 996 OF 2008 4 

(4) The condition of graduation was meant only for the 

General Election, 2002 and was not to apply to the future 

elections, which was apparent from the title of the statute 

itself, viz., “the Conduct of General Election Order, 2002” 

and was further fortified from the statement given below 

the title of the Chief Executive’s Order No. 7 of 2002 to the 

effect that “An order to provide for the conduct of General 

Elections 2002” and the recitals contained in Articles 3 

and 4, e.g., “The provisions of this Order shall have effect 

notwithstanding anything contained in the Constitution or 

in any other law for the time being in force relating to the 

forthcoming elections to the Senate, National Assembly and 

the Provincial Assemblies” and “……….. the Election 

Commission shall take such steps and measures, 

including preparation of electoral rolls and delimitation of 

the constituencies, and adopt such procedure, do such 

acts, pass such orders, issue such directions and take all 

such ancillary, incidental and consequential steps as may 

be deemed necessary for effectively carrying out the 

elections for the members of the Senate, National Assembly 

and Provincial Assemblies in October 2002”. 

(5) The primary objective of the impugned legislation was to 

debar certain persons from contesting General Election of 

2002. In this behalf, reference was made to the text of the 

original Conduct of General Election Order 2002 which 

did not prescribe any educational qualification for 

contesting the election. The said Order was subsequently 

amended by insertion of Article 8-A, which provided that a 

person would not be eligible to contest election if he was 

not a graduate. 

(6) The Chief Executive’s Order No. 7 of 2002 has been 

included in the Sixth Schedule to the Constitution (Serial 

No.32). Therefore, the National Assembly is precluded 

from making legislation on the subject without the 

previous sanction of the President.


AND CMA NO. 994 TO 996 OF 2008 5 

(7) No reason whatsoever was mentioned to include the 

impugned legislation in the Sixth Schedule and thus equal 

protection of law was not available to those who were not 

graduates. 

(8) The provisions of Article 8-A were earlier challenged before 

this Court in Constitution Petitions No. 29 to 33 of 2002, 

but the same were dismissed through the judgment in the 

case of Pakistan Muslim League (Q) v. Chief Executive of 

the Islamic Republic of Pakistan (PLD 2002 SC 994), 

hereinafter referred to as the PML (Q)’s case. 

(9) In the PML (Q)’s case, question of validity of the impugned 

provisions of the Chief Executive’s Order No. 7 of 2002 

was not examined on the touchstone of the Constitution 

and the Court dilated upon circumstances which had little 

bearing on the controversy before it. 

(10) The judgment in the PML (Q)’s case was rendered without 

proper assistance. Even elementary data was not 

produced regarding the literacy rate of the country, the 

number of graduates in different provinces, particularly in 

the rural areas and far-flung areas like Chaghi in the 

Province of Balochistan and other similar parts of the 

country where the vast majority of the population was not 

having even matriculation, middle or primary level 

education. Therefore, the same was required to be 

revisited and overruled. 

4. Dr. M. Aslam Khaki, ASC submitted that the following 

issues needed to be dilated upon: - 

(1) Whether the impugned law is an ordinary law or a 

law protected by the Constitution? 

(2) Whether this Court has jurisdiction to 

examine/scrutinize the validity of the constitutional 

provisions?


AND CMA NO. 994 TO 996 OF 2008 6 

(3) Whether the instant petition is mala fide to serve the 

purpose of one or few persons and not the public at 

large? 

(4) Whether the petition is hit by the principle of res 

judicata and estoppel? 

(5) Whether the impugned legislative measures are 

offensive to the provisions of the Constitution? 

(6) Whether the requirement of graduation for 

contesting parliamentary elections is reasonable and 

in public interest? 

(7) Whether different treatment of the citizens on their 

unequal circumstances is a discrimination, or a 

distinction? 

(8) Whether after the conceding statement of the Federal 

Government about the badness of the impugned law, 

will it not be appropriate to direct the petitioners to 

seek amendment of the law? 

(9) Whether the petition is liable to be dismissed or at 

least amended for not impleading the necessary 

parties like the Ministry of Parliamentary Affairs, the 

President of Pakistan and members of the 

Parliament who would be adversely affected? 

5. Raja Niaz Ahmad Rathore, learned Deputy Attorney 

General appearing for the respondent Federation of Pakistan 

submitted that in the context of the present case this Court was to 

see as to whether the impugned legislation was not a reasonable 

restriction within the meaning of Article 17 of the Constitution. He 

contended that the impugned Article 8-A of the Chief Executive’s 

Order No. 7 of 2002 was a bad law and ultra vires the Constitution 

and was required to be struck down by this Court.


AND CMA NO. 994 TO 996 OF 2008 7 

6. Malik Muhammad Qayyum, learned Attorney General for 

Pakistan appeared in the matter on Court’s call. He presented his 

viewpoint as under: - 

i) There are two types of questions, one is political and 

the other is legal or constitutional. Whether the 

government will like to repeal the impugned 

legislation is a political decision, but whether the law 

is ultra vires, is to be decided by this Court. 

ii) The Supreme Court is not bound by its earlier 

rulings. It has the power and jurisdiction to overrule 

its previous judgments. In Perdeep Kumar Biswas v. 

Indian Institute of Chemical Biology (2002) 5 Supreme 

Court Cases 111), the Supreme Court of India 

overruled its earlier judgment. If this Court comes to 

the conclusion that the judgment in PML (Q)’s case 

was erroneous, there is no reason to perpetuate a 

wrong or a mistake. The judgment in PML (Q)’s case 

does not take notice of the real issues involved 

therein. It is mentioned in Para. 22 of the judgment 

that necessary data has not been supplied. The 

Court did not go into the question of reasonableness 

or otherwise of the impugned law on the touchstone 

of the Constitution. 

iii) Right to contest election is a fundamental right and 

every body should be encouraged for the enforcement 

of the fundamental rights. 

iv) The impugned educational qualification is partly a 

bad law. However, to say that a law is bad, motive is 

required to be attributed. 

v) The requirement of graduation qualification in the 

matter of election is a negation of the democracy. It is 

against the concept of political justice guaranteed in 

the Objectives Resolution and Preamble of the 

Constitution.


AND CMA NO. 994 TO 996 OF 2008 8 

vi) The Objectives Resolution, which is now a 

vii) 

substantive part of the Constitution by means of 

Article 2A, inter alia, provides:- 

“Whereas sovereignty over the entire Universe 

belongs to Almighty Allah alone, and the 

authority to be exercised by the people by 

Pakistan within the limits prescribed by Him is 

a sacred trust; 

And whereas it is the will of the people of 

Pakistan to establish an order; 

Wherein the State shall exercise its powers and 

authority through the chosen representatives of 

the people; 

…………………. 

Wherein shall be guaranteed fundamental 

rights, including equality of status, of 

opportunity and before law, social, economic 

and political justice, and freedom of thought, 

expression, belief, faith, worship and 

association, subject to law and public morality.” 

A democracy is a government of the people, by the 

people and for the people. The requirement of 

educational qualification creates a separate class. 

Therefore, it cannot be said that such a government 

is a government of the people. In modern laws the 

trend is that a preamble need not be there because 

the preamble states only the object or the intent of 

the legislature. 

viii) The impugned law creates an elitist democracy 

amounting to discrimination, which is forbidden 

under Article 25 of the Constitution. The Advanced 

Law Lexicon, The Encyclopaedic Law Dictionary, 3 rd 

Edition, Volume 2 (2005) defines democracy as 

under:- 

“One of the three forms of government; that in 

which the sovereign power is neither lodged in 

one man, as in a monarchy, nor in the nobles,


AND CMA NO. 994 TO 996 OF 2008 9 

ix) 

as in an oligarchy, but in the collective body of 

the people; government by the people; state in 

which such a government prevails; the principle 

that all citizens have equal political rights.” 

The impugned graduation qualification does not meet 

the test of reasonableness. The graduation 

qualification requires 14 years’ studies. If a person 

studies for 13 years and is not a graduate, no 

weightage will be given to 13 years’ learning. In a 

democratic set up the emphasis is on social, 

economic and political justice. In PML(Q)’s case, the 

Court did not consider the data relating to the 

literacy rate of the population or the question such 

as how many graduates were there in backward 

areas, such as Chaghi, etc. ? 

x) The impugned law prescribes simple graduation 

qualification for contesting election and there is no 

particular requirement in what discipline the person 

should be a graduate. A science graduate, e.g. a 

person holding B.Sc. degree is eligible to participate 

in the election. Will such a person be competent to 

frame law? Graduation is 14 years’ education in any 

discipline, though the main function of the members 

of the Parliament or the Provincial Assemblies is to 

legislate laws. 

7. To begin with, we may deal with the objection raised by 

Mr. Khaki that the instant petition was hit by the principles of res 

judicata and estoppel. He submitted that the issue had already been 

decided in the PML (Q)’s case and the only course open to the 

petitioners was to file a review petition. Even otherwise, the present 

petition suffered from laches. The PML(Q)’s case was decided on 

11.7.2002 whereas the election under the Chief Executive’s Order No.


AND CMA NO. 994 TO 996 OF 2008 10 

7 of 2002 was held in November 2002. In the alternative, the 

petitioners could approach the Parliament for amendment of the law. 

In another formulation Mr. Khaki contended that the Chief 

Executive’s Order No. 7 of 2002 was not an ordinary law, but had 

been protected under the Sixth Schedule to the Constitution, which 

could not be amended or repealed without prior sanction of the 

President. According to Mr. Khaki, the Mutahidda Mujlis-e-Amal 

(MMA) had agreed to pass the Constitution (Seventeenth Amendment) 

Act, 2003 on the condition that the retirement age of the Judges of 

the Superior Courts, as enhanced under the Legal Framework Order, 

2002 was reduced and the original position in that regard was 

restored. He canvassed the view that after the Seventeenth 

Constitutional Amendment, the Chief Executive’s Order No. 7 of 2002 

had become part of the Constitution and could only be amended in 

the manner provided for amendment of the Constitution. He 

submitted that the Parliament had the power to amend the 

Constitution but this Court did not have such a power, as it was to 

interpret the Constitution. He contended that Article 270AA of the 

Constitution provided, inter alia, that all laws made between the 12 th 

October 99 and the date on which other Articles came into force, i.e. 

31 st December 2003 (both inclusive) were competently made and that 

under Article 268 of the Constitution all existing laws would continue 

in force until altered, repealed or amended by the appropriate 

legislature. For facility of reference, Article 270AA of the Constitution 

is reproduced below: - 

“270AA. Validation and affirmation of laws etc.-


AND CMA NO. 994 TO 996 OF 2008 11 

(1) The Proclamation of Emergency of the fourteenth 

day of October, 1999, all President’s Orders, 

Ordinances, Chief Executive’s Orders, including the 

Provisional Constitution Order No. 1 of 1999, the 

Oath of Office (Judges) Order, 2000 (No.1 of 2000), 

Chief Executive’s Order No. 12 of 2002, the 

amendments made in the Constitution through the 

Legal Framework Order, 2002 (Amendment) Order, 

2002 (Chief Executive’s Order No. 29 of 2002), the 

Legal Framework (Second Amendment) order, 2002 

(Chief Executive’s Order No.32 of 2002) and all 

other laws made between the twelfth day of 

October, one thousand nine hundred and ninetynine 

and the date on which this Article comes into 

force (both days inclusive), having been duly made 

are accordingly affirmed, adopted and declared to 

have been validly made by the competent authority 

and notwithstanding anything contained in the 

Constitution shall not be called in question in any 

court or forum on any ground whatsoever. 

(2) All orders made, proceedings taken, appointments 

made, including secondments and deputations, and 

acts done by any authority, or by any person, which 

were made, taken or done, or purported to have 

been made, taken or done, between the twelfth day 

of October, one thousand nine hundred and ninetynine, 

and the date on which this Article comes into 

force (both days inclusive), in exercise of the powers 

derived from any Proclamation, President’s Orders, 

Ordinances, Chief Executive’s Orders, enactments, 

including amendments in the Constitution, 

notifications, rules, orders, bye-laws, or in 

execution of or in compliance with any orders made 

or sentences passed by any authority in the 

exercise or purported exercise of powers as 

aforesaid, shall, notwithstanding any judgment of 

any court, be deemed to be and always to have been 

validly made, taken or done and shall not be called 

in question in any court or forum on any ground 

whatsoever. 

(3) All proclamations, President’s Orders, Ordinances, 

Chief Executive’s Orders, laws, regulations, 

enactments, including amendments in the 

Constitution, notifications, rules, orders or bye-laws 

in force immediately before the date on which this 

Article comes into force shall continue in force until 

altered, repealed or amended by the competent 

authority. 

Explanation.- In this clause, “competent authority” 

means,-


AND CMA NO. 994 TO 996 OF 2008 12 

a) in respect of Presidents’ Orders, Ordinances, 

Chief Executive’s Orders and enactments, 

including amendments in the Constitution, 

the appropriate Legislature; and 

b) in respect of notifications, rules, orders and 

bye-laws, the authority in which the power to 

make, alter, repeal or amend the same vests 

under the law. 

4) No suit, prosecution or other legal proceedings, 

including writ petitions, shall lie in any court or 

forum against any authority or any person, for or 

on account of or in respect of any order made, 

proceedings taken or act done whether in the 

exercise or purported exercise of the powers 

referred to in clause (2) or in execution of or in 

compliance with orders made or sentences passed 

in exercise or purported exercise of such powers. 

5) For the purposes of clauses (1), (2) and (4), all 

orders made, proceedings taken, appointments 

made, including secondments and deputations, acts 

done or purporting to be made, taken or done by 

any authority or person shall be deemed to have 

been made, taken or done in good faith and for the 

purpose intended to be served thereby.” 

8. A bare perusal of Article 270AA shows that all the 

legislative measures including the Chief Executive’s Order No. 7 of 

2002 made by the Chief Executive of Pakistan were adopted, affirmed 

and declared by the Parliament as having been validly and 

competently made. There is no cavil with the proposition that under 

Article 268 of the Constitution all existing laws shall continue in force 

until altered, repealed or amended by the appropriate legislature or 

that the Parliament is not debarred from adding other 

conditions/qualifications for being a candidate for membership of 

Parliament or, as the case may be, the Provincial Assemblies. Of 

course, at the time of its promulgation the Chief Executive’s Order 

No. 7 of 2002 was an extra-constitutional document, as the same was 

to have effect notwithstanding anything contained in the Constitution


AND CMA NO. 994 TO 996 OF 2008 13 

(e.g. recitals in Articles 3, 4, 8, 8-A, etc.). However, this position was 

displaced on revival of the Constitution when it lost its supraconstitutional 

character on account of its non-incorporation in any of 

the provisions of the Constitution and its having been included in the 

Sixth Schedule to the Constitution. The learned Attorney General for 

Pakistan rightly pointed out that the impugned law was not one of 

those laws, which were included in the First Schedule of the 

Constitution and thus saved from the operation of fundamental 

rights. Article 8 of the Constitution reads as under: - 

“8. - (1) Any law, or any custom or usage having the 

force of law, in so far as it is inconsistent with the rights 

conferred by this Chapter, shall, to be extent of such 

inconsistency, be void. 

(2) The State shall not make any law which takes 

away or abridges the rights so conferred and any law 

made in contravention of this clause shall, to the extent of 

such contravention, be void.” 

(3) The Provision of this Article shall not apply to- 

(a) 

any law relating to members of the Armed 

Forces, or of the police or of such other 

forces as are charged with the 

maintenance of public order, for the 

purpose of ensuring the proper discharge 

of their duties or the maintenance of 

discipline among them; or 

(b) any of the – 

(i) 

(ii) 

laws specified in the First Schedule 

as in force immediately before the 

commencing day or as amended by 

any of the laws specified in that 

Schedule; 

other laws specified in Part I of the 

First Schedule; 

and no such law nor any pro vision thereof shall be 

void on the ground that such law or provision is


AND CMA NO. 994 TO 996 OF 2008 14 

inconsistent with, or repugnant to, any provision of 

this Chapter. 

(4) Notwithstanding anything contained in 

paragraph (b) of clause (3), within a period of two 

years from the commending day, the appropriate 

Legislature shall bring the laws specified in [Part II of 

the First Schedule] into conformity with the rights 

conferred by the Chapter: 

Provided that the appropriate Legislature may 

by resolution extend the said period of two years by 

a period and exceeding six months. 

Explanation. - If in respect of any law Majlis-e- 

Shoora (Parliament) is the appropriate Legislature, 

such resolution shall be a resolution of the National 

Assembly. 

(5) The rights conferred by this Chapter shall 

not be suspended except as expressly provided by 

the Constitution.” 

Accordingly, in the post Seventeenth Constitutional Amendment 

period, the Chief Executive’s Order No. 7 of 2002 continued on the 

statute book as ordinary legislation with the difference that after its 

inclusion in the Sixth Schedule, further legislation on it could be 

made only after obtaining sanction of the President. 

9. The argument of Mr. Khaki would have carried weight had 

the educational qualification been added in the list of qualifications 

for membership of Majlis-e-Shoora (Parliament) provided for in Article 

62 of the Constitution. He frankly conceded that no such amendment 

had been made in the said Article. Needless to observe, the Chief 

Executive’s Order No. 7 of 2002 was never made a part of the 

Constitution. 

10. At this stage, we may deal with the contention of the 

learned counsel for the petitioners that it was clear from the various 

provisions of the Chief Executive’s Order No. 7 of 2002 that the


AND CMA NO. 994 TO 996 OF 2008 15 

graduation qualification was intended for 2002 elections alone. No 

doubt under the law a qualification could be introduced at any time, 

but the timing of a particular statute would assume importance and 

relevance where the proposed law affected the fundamental rights of 

the citizens who, but for the operation of the said law, would be 

eligible to contest the election. This aspect of the matter was taken 

into consideration while deciding Javed Jabbar v. Federation of 

Pakistan (PLD 2003 SC 955), but not in the PML (Q)’s case. 

11. It may be noted that Article 8 of the original Chief 

Executive’s Order No. 7 of 2002 (PLD 2002 Central Statutes 193) only 

provided that the laws relating to election etc., for the time being in 

force, insofar as they were not inconsistent with any provision of the 

Chief Executive’s Order No. 7 of 2002 shall apply and no such 

educational qualification was laid down therein for contesting 

election. However, by the Conduct of General Elections (Amendment) 

Order, 2002, new Article 8-A was inserted into the Chief Executive’s 

Order No. 7 of 2002. Article 8-A reads as under:- 

“8-A. Notwithstanding anything contained in the 

Constitution of the Islamic Republic of Pakistan, 1973, the 

Senate (Election) Act, 1975 (LI of 1975), the 

Representation of People Act, 1976 (LXXXV of 1976), or 

any other law for the time being in force, a person shall 

not be qualified to be elected or chosen as a member of 

Majlis-e-Shoora (Parliament) or a Provincial Assembly 

unless he is at least a graduate possessing a bachelor 

degree in any discipline or any degree recognized as 

equivalent by the University Grants Commission under 

the University Grants Commission Act, 1974 or any other 

law for the time being in force.” 

The Chief Executive’s Order No. 7 of 2002 was promulgated on 

27.2.2002 and Article 8-A was inserted therein on 25.6.2002 whereas 

a part of the Constitution was revived on 16.11.2002 and the rest on


AND CMA NO. 994 TO 996 OF 2008 16 

31.12.2003. The judgment in PML(Q)s case was rendered on 

11.7.2002. Section 99(1)(c) of the Representation of the People Act, 

1976, was introduced on 30.7.2002. Thus, it was after the passing of 

the judgment in PML (Q)’s case that an amendment in the 

Representation of the People Act, 1976, was made and clause (cc) in 

subsection (1) of section 1 added by Ordinance XXXVI of 2002. For 

facility of reference, said clause (cc) is reproduced below: - 

“(cc) he is at least a graduate, possesses a bachelor’s 

degree in any discipline or any degree recognized as 

equivalent thereto by the University Grants Commission 

under the University Grants Commission Act, 1974 (XXIII 

of 1974), or any other law for the time being in force.” 

Having been incorporated in the Representation of the People Act, 

1976, the said qualification became a part of the law as contemplated 

in Article 62 (i) or Article 63 (s) of the Constitution. Therefore, even if 

it be assumed that the Chief Executive’s Order No. 7 of 2002 

including the provisions of Article 8-A was meant for the General 

Election of 2002, the educational qualification continued in operation 

by virtue of clause (cc) in subsection (1) of section 99 ibid with the 

result that the provisions of Article 8-A of the Chief Executive’s Order 

No. 7 of 2002, as observed earlier, were rendered bereft of their extraconstitutional 

character after election 2002, which were to be treated 

at par with other sub-constitutional legislation and open to judicial 

review on the touchstone of the provisions of the Constitution. 

12. Mr. Khaki contended that the Government in power had 

overwhelming majority in the Parliament and was in a position to 

make amendment in the aforesaid law. In response, the learned 

counsel for the petitioners, as also the learned Deputy Attorney


AND CMA NO. 994 TO 996 OF 2008 17 

General submitted that due to the inclusion of the impugned law in 

the Sixth Schedule to the Constitution and the requirement of 

previous sanction of the President for introducing any legislation in 

respect thereof, it was not possible for the Government to make any 

legislation on the subject since it was not sure that the President 

would accord the requisite sanction as an attempt to amend the law 

in the past had failed. We would not like to go into this or other 

similar questions and would confine ourselves to the examination of 

the legal and constitutional issues arising in the matter. Even 

otherwise, the impugned graduation qualification for contesting 

election was subjected to scrutiny in PML (Q)’s case and it was 

nobody’s case that the same was not open to challenge in the exercise 

of power of judicial review by this Court. Rather, in the said case, the 

case was examined from a different perspective, which was apparent 

from the narration of political process through which Pakistan had 

passed since its inception. Having recounted the major political 

developments/events, the Court summed up the discussion in Para 

19 of the judgment in the following words: - 

“19. It was necessary to narrate this history briefly as its 

certain parts distinctly point to a political culture, which 

leaves much to be desired. It demonstrated utter disregard 

for the parliamentary values and deliberate attempt to 

inure the soul of democracy. The establishment of a 

democratic order and the institutions therein requires 

utmost responsibility on the part of the elected 

representatives of the people but the record of most of the 

elected representatives of the four dissolved National and 

Provincial Assemblies speaks volumes about their psyche, 

lack of education and sense of responsibility. It also shows 

that the political field was dominated by a coterie of 

individuals representing a special class of vested interests, 

which ensured that if not they, their kith and kin were 

elected as members of the Assemblies. Regardless of the 

ideal standards, their main effort was directed to have


AND CMA NO. 994 TO 996 OF 2008 18 

their hegemony to the political field. There are known 

cases where through manoeuvring and machination one 

faction deliberately went to the opposition and the other to 

the treasury benches.” 

13. Be that as it may, the main issue is whether the present 

petition is competent despite the matter having been decided by this 

Court in PML (Q)’s case. The learned counsel for the petitioners 

submitted that the remedy of review was not available to the 

petitioners. The petition involved question of public importance with 

reference to enforcement of fundamental rights. There was a 

continuing cause of action inasmuch the petitioners and other nongraduate 

citizens were debarred from contesting election forever, and 

the principles of res judicata, estoppel or laches were not applicable in 

such matters. The learned Attorney General for Pakistan submitted 

that the Supreme Court was not bound by its earlier rulings and 

could overrule its previous judgments. He took us through a 

judgment of the Indian Supreme Court reported as Perdeep Kumar 

Biswas v. Indian Institute of Chemical Biology (2002) 5 Supreme Court 

Cases 111). In the precedent case, the appellants filed a writ petition 

before the Calcutta High Court to challenge the termination of their 

service by the respondent which was a unit of the Council of 

Scientific and Industrial Research (for short “CSIR”). They also sought 

an interim order but that was refused by the High Court on the prima 

facie view that in view of the Supreme Court’s decision in Sabhajit 

Tewary v. Union of India (AIR 1975 SC 1329 = (1975) 1 SCC 485), the 

writ petition itself was not maintainable. The appellants approached 

the Supreme Court of India. A two-Judge Bench of the Supreme 

Court, in view of subsequent decisions, held that Sabhajit Tewary’s


AND CMA NO. 994 TO 996 OF 2008 19 

case required reconsideration. The matter was examined by the 

Constitution Bench, which overruled the judgment in Sabhajit 

Tewary’s case in the following terms:- 

“Although the Court noted that it was the Government 

which was taking the “special care” nevertheless the writ 

petition was dismissed ostensibly because the Court 

factored into its decision two premises:- 

i) “The society does not have a statutory character 

like the Oil and Natural Gas Commission, or the 

Life Insurance Corporation or Industrial Finance 

Corporation. It is a Society incorporated in 

accordance with the provisions of the Societies 

Registration Act” (SCC p. 486, Para 4), and 

ii) This Court has held in Praga Tools Corpn. v. C.A. 

Imanual Heavy Engg. Mazdoor Union v. State of 

Bihar and in S.L. Agarwal (Dr) v. G.M., Hindustan 

Steel Ltd. that the Prage Tools Corporation, Heavy 

Engineering Mazdoor Union and Hindustan Steel 

Ltd. are all companies incorporated under the 

Companies Act and the employees of these 

companies do not enjoy the protection available to 

government servants as contemplated in Article 

311. The companies were held in these cases to 

have independent existence of the Government and 

by the law relating to corporations. These could not 

be held to be departments of the Government.” 

(SCC p. 487, Para 5) 

With respect, we are of the view that both the premises 

were not really relevant and in fact contrary to the “voice 

and hands” approach in Sukhdev Singh. Besides reliance 

by the Court on decisions pertaining to Article 311 which 

is contained in Part XIV of the Constitution was 

inapposite. What was under consideration was Article 12 

which by definition is limited to Part III and by virtue of 

Article 36 to Part IV of the Constitution, as said by 

another Constitution Bench later in this context.” 

In the course of the judgment, the Supreme Court of India further 

observed as under:- 

“Normally, a precedent like Sabhajit Tewary which has 

stood for a length of time should not be reversed, however 

erroneous the reasoning if it has stood unquestioned, 

without its reasoning being “distinguished” out of all 

recognition by subsequent decisions and if the principles 

enunciated in the earlier decision can stand consistently


AND CMA NO. 994 TO 996 OF 2008 20 

and be reconciled with subsequent decisions of this Court, 

some equally authoritative. In our view Sabhajit Tewary 

fulfils both conditions.” 

14. We have carefully considered the contentions of Mr. 

Khaki, as also of the learned counsel for the petitioners and the view 

expressed by the learned Attorney General for Pakistan on the 

maintainability of the present petition in regard to the power and 

jurisdiction of this Court to revisit and overrule its earlier judgment. 

We may usefully make reference to the following cases: - 

Ataur Rahman v. State (PLD 1967 SC 23): The judgment 

points out the possibility of re-considering in a future 

proper case Court’s view on a point of law expressed in 

earlier case and decision in earlier case remaining 

binding on Courts till such re-consideration. 

Allah Ditta v. Muhammad Ali (PLD 1972 SC 59): The 

Supreme Court of Pakistan held that “----, the decision in 

the case of Sharaf and another v. Pir Bakhsh 1 and 

another has held the field for the last 78 years and has 

been followed without dissent by the Courts in Punjab. 

On the principle of ‘stare decisis’ also it is not desirable to 

change this view unless it is so unreasonable that it 

cannot be followed under any circumstances.” 

Terni S.P.A. v. PECO (1992 SCMR 2238): It was held that 

this Court could depart from a previous rule or 

interpretation if it felt that circumstances had changed 

and that not to do so would lead to injustice. The 

development of the law should not be permitted to be 

stifled. It should move with the time and articulate the 

changes coming in. 

Muhammad Hanif v. Sultan (1994 SCMR 279): This Court 

observed that the Supreme Court being at the apex had a 

constitutional duty to do complete justice, thus, it could 

not be inhibited by any restraint and had an abiding duty 

to attend to all aspects and to take an overall view of the 

case in dispensing justice. 

In re: To Revisit “The State v. Zubair” (2002 SCMR 171): 

This Court took suo motu action in the matter under 

Article 184(3) of the Constitution in view of the difficulties 

arising out of the strict implementation of the ratio in 

1 83 Punjab Record 1893


AND CMA NO. 994 TO 996 OF 2008 21 

Zubair’s case wherein it was, inter alia, observed by this 

Court that if a Judge of a High Court had heard a bail 

application of an accused person, all subsequent 

applications for bail of the same accused or in the same 

case, should be referred to the same Bench/Judge 

wherever he was sitting and in case it was absolutely 

impossible to place the second or subsequent bail 

application before the same Judge who had dealt with the 

earlier bail application of the same accused or in the 

same case, the Chief Justice of the concerned High Court 

may direct it to be fixed for disposal before any other 

Bench/Judge of that Court. In this case, while making 

certain clarifications/modifications in its earlier judgment 

in Zubair’s case, this Court was influenced by the 

following factors: - 

“---- the rule in Zubair (supra) is based on the 

salutary principles that justice must not only be 

done but also seen to be done. It also promotes the 

Constitutional ideals that no one should abuse the 

process of the Court (Article 204) and the 

independence of the judiciary must be fully secured 

(Article 2A). These ideals cannot, however, be fully 

promoted unless the rule in Zubair (supra) is made 

to accommodate the equally important 

Constitutional ideals of expeditious and inexpensive 

justice (Article 37(d) I which though a Principle of 

Policy can be judicially enforced as it will be read 

into the non-derogable Fundamental Rights 

guaranteeing the inviolability of the dignity of man 

(Article 14). Keeping bail applications pending for 

long periods of time by making a fetish of 

technicalities not only denies these Constitutional 

ideals but also impedes access to justice which is a 

Fundamental Right protected by Article 14.” 

15. From the above survey of the case-law it is clear that the 

Supreme Court in an appropriate case may revisit its earlier 

decision, clarify, modify or even overrule the same if the 

circumstances of the case so warrant. 

16. The learned counsel for the petitioners contended that the 

impugned educational qualification constituted infringement of 

fundamental right of the citizens, but it was taken very lightly in the 

PML (Q)’s case. He submitted that the Court in the said case


AND CMA NO. 994 TO 996 OF 2008 22 

recapitulated the events of the Pakistan’s recent political history in 

great detail but paid a little attention to the question of enforcement 

of the fundamental rights. He contended that the Court sufficed by 

making the following discussion on the issue: - 

“Article 17 clearly allows a citizen to have the right to form 

associations or unions subject to any reasonable 

restrictions imposed by law. Similarly, every citizen not 

being in the service of Pakistan, has the right to form or be 

a member of political party, subject to any reasonable 

restrictions imposed by law in the interest of the 

sovereignty or integrity of Pakistan. In this context, we are 

reminded of the following observations made by this Court 

in Mian Muhammad Nawaz Sharif’s case at page 558 while 

interpreting Article 17 of the Constitution: - 

“This approach was again in evidence in the 

Symbol’s case (PLD 1989 SC 66) wherein it was 

observed that the ‘Fundamental Right’ conferred by 

Article 17(2) of the Constitution whereby every 

citizen has been given ‘the right’ to form or to be a 

member of a political party comprises the right to 

participate in and contest and election.” 

The learned counsel submitted that having noted the above 

interpretation of Article 17, the Court held as under: - 

“There is no cavil with the proposition laid down by this 

Court that every citizen has a right to contest election but 

the principle enunciated therein does not confer an 

unbridled right on every citizen to contest an election. The 

right to contest an election is subject to the provisions of 

the Constitution and the law and only those citizens are 

eligible to contest election who possess the qualifications 

contained in Article 62 and the law including the law 

made under Article 62(i) and do not suffer from 

disqualifications laid down in Article 63 of the 

Constitution and the law.” 

17. The learned counsel for the petitioners submitted that 

soon after the decision of PML (Q)’s case, Article 17 again fell for 

consideration in Javed Jabbar’s case where the Court returned a 

different finding on somewhat similar issues. It may be recalled that 

by amending the Chief Executive’s Order No. 7 of 2002, Article 8-AA


AND CMA NO. 994 TO 996 OF 2008 23 

was added providing therein that a person who had unsuccessfully 

contested election to the National or a Provincial Assembly was not 

eligible to contest the Senate election. For facility of reference, Article 

8-AA of the Chief Executive’s Order No. 7 of 2002 is reproduced 

below: - 

“8-AA. Disqualification from being a member of the 

Senate. – Notwithstanding anything contained in the 

Constitution of the Islamic Republic of Pakistan, 1973, the 

Senate (Election) Act, 1975 (LI of 1975), the 

Representation of the People Act, 1976 (LXXXV of 1976), 

or any other law for the time being in force, a person shall 

be disqualified from being elected or chosen as, and from 

being, a member of the Senate if, having been a candidate 

for Election to the National Assembly or a Provincial 

Assembly at the elections held under this Order he has 

not been elected to such Assembly.” 

The above disqualification for the Senate election was challenged 

before this Court in Constitution Petitions No. 38 of 2002 etc. in the 

case of Javed Jabbar (supra) and the Court held the disqualification 

attributable to defeat in consequence of lawful act of contesting 

election of the National or a Provincial Assembly as discriminatory in 

nature and violative of Article 25 of the Constitution. At Para 22 of 

the judgment, the Court held as under: - 

“22. Adverting to the second common contention we find 

that Article 8-AA of the Order not only offends the 

provisions of Article 25 of the Constitution, which 

guarantees that all citizens are equal before law, but is 

also unjust as its promulgation after completion of the 

process of general elections has left the petitioners high 

and dry. Participation in an election is a positive act which 

advances the cause of democracy and flows from the 

fundamental right of a person to contest an election which 

is enshrined in the Constitution and acknowledged in the 

Statutes on the subject. It is indeed unfair to sideline a 

candidate defeated in the general elections through a 

belatedly prescribed disqualification which is 

discriminatory in nature, militates against the spirit of 

democracy and tends to frustrate the process of Senate 

election. The amending Order was promulgated after


AND CMA NO. 994 TO 996 OF 2008 24 

completion of the process of general elections and those 

who intended to contest elections to the National 

Assembly and the Provincial Assemblies were not aware 

that in the event of defeat they would be disqualified to 

participate in the Senate election. We are convinced that 

had the disqualification in question been incorporated in 

the Order at the outset the candidates desirous of 

contesting the Senate election would not have contested 

election to the National Assembly and the Provincial 

Assemblies and thus could have opted for a different 

course of action. The timing of the impugned legislation is 

crucial in the facts and circumstances of the present case 

and is fatal to the case of the Federation. Resultantly, the 

impugned legislation, although competently enacted and 

immune from challenge on the ground of mala fides, 

cannot be allowed to remain on the Statute book being 

violative of the provisions of Article 25 of the Constitution 

and having been introduced belatedly.” 

It may also be advantageous to re fer to Para. 16 of the judgment 

which reads as follows: - 

“16. In view of the above interpretation of the expression 

"public importance", the status and importance of the 

Senate which is an integral part of Majlis-e-Shoora 

(Parliament) and consists of the chosen representatives of 

the people, mode of election of members of the Senate, 

prerogative of the political parties to award tickets to 

persons of their choice and solicited scrutiny of the 

amending Order there is no difficulty in holding that the 

petitions involve a question of public importance within 

the contemplation of Article 184(3) of the Constitution. As 

regards infringement and enforcement of a fundamental 

right of the petitioners, suffice it to say that right to 

contest an election is not only a statutory but also a 

fundamental right conferred by Chapter 1 of Part II of the 

Constitution. Every citizen who fulfils the conditions laid 

down under Articles 62 and 63 of the Constitution and the 

related law is eligible to contest an election and to 

participate in the ensuing formation of Government either 

in his individual capacity or as a member of a political 

party. Such right is guaranteed under Article 17(2) of the 

Constitution and has been recognized as such in Mian 

Muhammad Nawaz Sharif v. President of Pakistan PLD 

1993 SC 473 and Pakistan Muslim League (Q) v. Chief 

Executive of Islamic Republic of Pakistan PLD 2002 SC 

994. The observations made in the case of Pakistan 

Muslim League (Q) read as under: - 

"24. It was next urged before us that the Election 

Order is ultra vires Articles 17 and 25 of the


AND CMA NO. 994 TO 996 OF 2008 25 

Constitution. We will first reproduce Article 17 of the 

Constitution, which reads as under: - 

"17. (1) Every citizen shall have the right to 

form associations or unions, subject to any 

reasonable restrictions imposed by law in the 

interest of sovereignty or integrity of Pakistan, 

public order or morality. 

(2) Every citizen, not being in the service of 

Pakistan, shall have the right to form or be a 

member of a political party, subject to any 

reasonable restrictions imposed by law in the 

interest of the sovereignty or integrity of 

Pakistan and such law shall provide that where 

the Federal Government declares that any 

political party has been formed or is operating 

in a manner prejudicial to the sovereignty or 

integrity of Pakistan, the Federal Government 

shall, within fifteen days of such declaration, 

refer the matter to the Supreme Court whose 

decision on such reference shall be final. 

(3) Every political party shall account for the 

source of its funds in accordance with law." 

Article 17 clearly allows a citizen to have the right to form 

associations or unions subject to any reasonable 

restrictions imposed by law. Similarly, every citizen not 

being in the service of Pakistan, has the right to form or be 

a member of a political party, subject to any reasonable 

restrictions imposed by law in the interest of the 

sovereignty or integrity oil Pakistan. In this context, we are 

reminded of the following observations made by this Court 

in Mian Muhammad Nawaz Sharif's case at page 558 

while interpreting Article 17 of the Constitution: - 

“This approach was again in evidence in the 

Symbol’s case PLD, 1989 SC 66 wherein it was 

observed that the ‘Fundamental Right’ conferred by 

Article 17(2) of the Constitution whereby every 

citizen has been given ‘the right’ to form or to be a 

member of a political party comprises the right to in 

and contest an election.” 

There is no cavil with the proposition laid down by this 

Court that every citizen has a right to contest election but 

the principle enunciated therein does not confer an 

unbridled right on every citizen to contest an election. The 

right to contest an election is subject to the provisions of 

the Constitution and the law and only those citizens are 

eligible to contest election who possess the qualifications


AND CMA NO. 994 TO 996 OF 2008 26 

contained in Article 62 and the law including the law 

made under Article 62(i) and do not suffer from 

disqualifications laid down in Article 63 of the 

Constitution and the law.” 

18. The learned counsel further submitted that in PML (Q)’s 

case, on the question of reasonable classification permissible under 

Article 25, the Court noted the principles stated in I.A. Sharwani’s 

case and summed up the discussion with the following remarks:- 

“We need not refer to the plethora of case-law on the 

subject because the above principles summarize the entire 

case-law. Judging the Election Order in the light of the 

above principles, we are of the view that the education 

related qualification is reasonable and not arbitrary or 

whimsical because firstly, being a step towards 

transformation of the political culture it is founded on 

reasonable basis and secondly, it equally applies to all the 

graduates and does not discriminate any graduate or 

create a class within the graduates.” 

Thus, the learned counsel for the petitioners contended that not only 

there was divergence in the approach of the Court towards the two 

cases involving similar issues, it also did not advert to the 

fundamental question requiring determination whether the impugned 

educational qualification was reasonable on the touchstone of Articles 

17(2) and 25 of the Constitution. He submitted that in PML (Q)’s case 

the Court held the graduation qualification as reasonable because of 

its equal application to all the graduates and there being no further 

classification of the graduates. But, in Javed Jabbar’s case, the Court 

held that the impugned legislation, although competently enacted 

and immune from challenge on the ground of mala fides, could not be 

allowed to remain on the statute book being violative of the provisions 

of Article 25 of the Constitution. It could well be said that the 

disqualification applied to all those persons who had lost election of


AND CMA NO. 994 TO 996 OF 2008 27 

the National or a Provincial Assembly and no class was created within 

them. 

19. The learned Attorney General for Pakistan made reference 

to the case of Farooq Ahmed Khan Leghari v. Federation of Pakistan 

(PLD 1999 SC 57) to contend that all efforts were to be made to 

preserve and to enlarge the scope of fundamental rights while 

interpreting the constitutional provisions. 

20. The question of infringement of fundamental rights has 

engaged the attention of the Superior Courts, which have always 

dealt with these matters in all earnestness. In the case of F.B. Ali v. 

State (PLD 1975 SC 506) this Court elucidated the equal protection 

clause as under: - 

“Equal protection of the laws does not mean that every 

citizen, no matter what his condition, must be treated in 

the same manner. The phrase ‘equal protection’ of the 

laws means that no person or class of persons shall be 

denied the same protection of laws which is enjoyed by 

other persons or other class of persons in like 

circumstances in respect of their life, liberty, property or 

pursuits of happiness. This only means that persons, 

similarly situated or in similar circumstances, will be 

treated in the same manner. Besides this, all law implies 

classification, for, when it applies to a set of 

circumstances, it creates thereby a class and equal 

protection means that this classification should be 

reasonable. To justify the validity of a classification, it 

must be shown that it is based on reasonable distinctions 

or that it is on reasonable basis and rests on a real or 

substantial difference of distinction. Thus different laws 

can validly be made for different sexes, for persons in 

different age groups, e.g., minors or very old people; 

different taxes may be levied from different classes of 

persons on the basis of their ability to pay. Similarly, 

compensation for properties acquired may be paid at 

different rates to different categories of owners. Such 

differentiation may also be made on the basis of 

occupations or privileges or the special needs of a 

particular locality or a particular community. Indeed, the 

bulk of the special laws made to meet special situation 

come within this category. Thus, in the field of criminal


AND CMA NO. 994 TO 996 OF 2008 28 

justice, a classification may well be made on the basis of 

the heinousness of the crime committed or the necessity 

or preventing certain anti-social effects of a particular 

crime. Changes in procedure may equally well be effected 

on the ground of the security of the State, maintenance of 

public order, removal of corruption from amongst public 

servants or for meeting an emergency. 

Where, however, the law itself makes no classification but 

leaves the selection to an outside agency or an 

administrative body without laying down any guidelines, 

thus enabling the body or authority to pick and choose, a 

legitimate complaint may be made on the ground that the 

law itself permits discriminatory application. Such was the 

position which came under consideration by this Court in 

the case of Waris Meah v. The State (1) 1 where this Court 

struck down the law on the ground that it was violative of 

this particular right. On the other hand, in the case of 

Jibendra Kishore Achharya v. Province of East Pakistan 

(2) 2 , a law which provided for payment of compensation on 

a sliding scale to proprietors, which decreased in 

proportion to the income of the estate acquired. The larger 

the income the lesser the scale of compensation. 

Nevertheless, this Court held the differentiation to be 

based upon a valid classification. 

The concept of the ‘equal protection of law’, which is 

derived from the American Constitution is not susceptible 

of any exact definition. “In other words”, as stated by the 

editors of American Jurisprudence, Vol. 12, page 409, “no 

rule as to protection of laws that will cover every case can 

be formulated and no test of the type of cases involving 

such a clause of the Constitution can be infallible or allinclusive. 

Moreover, it would be impracticable and unwise 

to attempt to lay down any generalization covering the 

subject; each case must be decided as it arises.” Be that 

as it may, the only generalization that is possible is that it 

means “subjection to equal laws applying to all in the 

same circumstances” but this does not mean that laws 

must affect every man, woman and child alike. This 

guarantee does not forbid discrimination with respect to 

things that are different nor does it prohibit classification 

which is reasonable and is based upon substantial 

differences having a relation to the objects or persons 

dealt with and to the public purpose sought to be 

achieved. It guarantees equality and not identity of rights. 

The principle is well recognized that a State may classify 

persons and objects for the purpose of legislation and 

1 PLD 1957 SC (Pak) 157 

2 PLD 1957 SC (Pak.) 9


AND CMA NO. 994 TO 996 OF 2008 29 

make laws applicable only to persons or objects within a 

class. In fact almost all legislation involves some kind of 

classification whereby some people acquire rights or suffer 

disabilities which others do not. What, however, it 

prohibited under this principle is legislation favouring 

some within a class and unduly burdening others. 

Legislation affecting alike all persons similarly situated is 

not prohibited. The mere fact that legislation is made to 

apply only to a certain group of persons and not to others 

does not invalidate the legislation if it is so made that all 

persons subject to its terms are treated alike under similar 

circumstances. This is considered to be permissible 

classification.” 

Reference may also be made to the case of Muhammad Nawaz Sharif 

v. Federation of Pakistan (PLD 1993 SC 473), where Chief Justice Dr. 

Nasim Hasan Shah held as under: - 

Fundamental Rights in essence are restraints on the 

arbitrary exercise of power by the State in relation to any 

activity that an individual can engage. Although 

Constitutional guarantees are often couched in permissive 

terminology, in essence they impose limitations on the 

power of the State to restrict such activities, Moreover, 

Basic or Fundamental Rights of individuals which 

presently stand formally incorporated in the modern 

Constitutional documents derive their lineage from an are 

traceable to the ancient Natural Law. With the passage of 

time and the evolution of civil society great changes occur 

in the political, social and economic condition of society. 

There is, therefore, the corresponding need to re-evaluate 

the essence and soul of the Fundamental Rights as 

originally provided in the Constitution. They require to be 

construed in consonance with the changed conditions of 

the society and must be viewed and interpreted with a 

vision to the future. Indeed, this progressive approach has 

been adopted by the Court in the United States and the 

reason given for doing so is that – 

‘While the language of the Constitution does not 

change, the changing circumstances of a progressive 

society for which it was designed yield a new and 

fuller import to its meaning: (Hurtade v. California— 

110 US 516)’.” 

At Para 17 of the above judgment, Ajmal Mian, J., as he then was, 

(later Chief Justice) observed as under: -


AND CMA NO. 994 TO 996 OF 2008 30 

“I may also observe that there is a marked distinction 

between interpreting a Constitutional provision containing 

a Fundamental Right and a provision of an ordinary 

statute. A Constitutional provision containing 

Fundamental right is a permanent provision intended to 

cater for all time to come and, therefore, while interpreting 

such a provision the approach of the Court should be 

dynamic, progressive and liberal keeping in view ideals of 

the people, socio-economic and politico-cultural values 

(which in Pakistan are enshrined in the Objectives 

Resolution) so as to extend the benefit of the same to the 

maximum possible. This is also called judicial activism or 

judicial creativity. In other words, the role of the Courts is 

to expand the scope of such a provision and not to 

extenuate the same.” 

21. In the same context, our attention was also invited to 

Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341). In 

that case, the learned Advocate General had contended that the 

special requirement of the area, namely, Balochistan was that it had 

a tribal society where usage and custom were deep-rooted and they 

required to be dealt with differently from other areas of Pakistan. The 

Court did not agree with the reasoning put forward by the learned 

Advocate General and held that the said criterion would be available 

to the Government for making such laws in pre-independence period 

when the British were ruling the area as a colony and had their own 

policy to dominate and subjugate the citizens. But after independence 

of the country entire scenario had changed. The Court took into 

consideration the object of the Criminal Law (Special Provisions) 

Ordinance, 1968, which was to provide a system different from the 

established procedure for trial of certain offences in certain areas of 

West Pakistan specified in the Schedule to meet the special 

requirements of those areas. The Court held that the people who had 

fought for independence would clamour for a just and proper order


AND CMA NO. 994 TO 996 OF 2008 31 

according to general law of the land, the Constitution and Injunctions 

of Islam. The Court repelled the contention of the learned Advocate 

General that the Ordinance was made applicable to the entire 

Province of Balochistan and there was no race or class 

discrimination. As such, the Ordinance was declared to be void being 

in conflict with Articles 9, 25, 175 and 203 of the Constitution. The 

Court held as under:- 

“As the judgments from Indian jurisdiction have been 

considered in the afore-stated judgments of this Court, we 

would not refer to them here. In all these authorities there 

seems to be a unanimity of view that although class 

legislation has been forbidden, it permits reasonable 

classification for the purpose of legislation. Permissible 

classification is allowed provided the classification is 

founded on intelligible differentia which distinguishes 

person or things that are grouped together from others 

who are left out of the group and such classification and 

differentia must be on relational relation to the objects 

sought to be achieved by the Act. There should be a nexus 

between the classification and the objects of the Act. This 

principle symbolizes that persons or things similarly 

situated cannot be distinguished or discriminated while 

making or applying the law. It has to be applied equally to 

persons situated similarly and in the same situation. Any 

law made or action taken in violation of these principles is 

liable to be struck down. If the law clothes any statutory 

authority or functionary with unguided and arbitrary 

power enabling it to administer in a discriminatory 

manner, such law will violate equality clause. Thus, the 

substantive and procedural law and action taken under it 

can be challenged as violative or Articles 8 and 25.” 

22. Having gone through the case-law cited at the bar 

including judgments in PML (Q) and Javed Jabbar’s cases, we find 

force in the submissions of the learned counsel for the petitioners and 

the learned Attorney General for Pakistan. Needless to observe that 

the questions of law of public importance with reference to 

enforcement of fundamental rights have to be properly dealt with. We


AND CMA NO. 994 TO 996 OF 2008 32 

are satisfied that a case for revisiting the judgment of this Court in 

PML (Q)’s case is made out. 

23. The learned counsel for the petitioners contended that in 

view of the ratio laid down in the cases of Benazir Bhutto and 

Muhammad Nawaz Sharif (supra), the right to form or be a member of 

a political party enshrined in Article 17(2) of the Constitution 

included the right to form government and to contest election. 

According to him, Article 17(2) had two parts: one granted the right to 

a citizen to form or be a member of a political party, and the other 

placed a restriction on the right, in that, such a person was not in the 

service of Pakistan. On the contrary, Mr. Khaki drew support from the 

judgment in PML (Q)’s case and canvassed the proposition that to 

contest election, no doubt, was a fundamental right but this right was 

a qualified one. According to him, the fundamental right to participate 

in election was also subject to certain restrictions imposed by law as 

provided in Article 17 of the Constitution. He further submitted that if 

the impugned legislation was struck down, it would call for a fresh 

election of the Parliament and the Provincial Assemblies. Therefore, at 

least the petition ought to be amended by impleading the President 

and Members of the Parliament as parties to it. 

24. In the case reported as Muhammad Yousuf v. State (2002 

CLC 1130) the Supreme Court of Azad Jammu and Kashmir took the 

view that only such persons could enter a legislative body who were 

either matriculate or had equivalent qualification and the same would 

not be violative of Fundamental Right No.7 of the Azad Jammu & 

Kashmir Interim Constitution, 1974 (Act NO. VIII of 1974)


AND CMA NO. 994 TO 996 OF 2008 33 

(corresponding of Article 17 of our Constitution). At paragraphs 18, 

19 and 21 of the judgment, the Court held as under: - 

“18. From the perusal of Fundamental Right No.7 it 

would appear that every State Subject has been given 

right to form an association of his choice. Such 

association would continue unless its activities are 

curtailed through reasonable restriction imposed by law in 

the interest of morality and public order. The argument 

that right to form an association automatically confers a 

right to contest elections for Legislative Assembly cannot 

be accepted. In case, titled Chief Secretary/Referring 

Authority, Azad Jammu and Kashmir Government v. 

Sardar Muhammad Abdul Qayyum Khan PLD 1983 Sc 

(AJ&K) 95, the learned Chief Justice of the time in his 

separate note opined in Para. 65 at page 129 as under:- 

“…… But on the other hand if the Ordinance 

provides disqualification which is a mere domestic 

wall to bar entry in the elective body it would not 

come within the mischief of fundamental rights.” 

19. Through the present Ordinance only the entry of 

such persons in the legislative body has been made 

possible who are either matriculate or have equivalent 

qualification. Such restriction in the light of the above 

referred observations would not come within the mischief 

of Fundamental Right No. 7. 

21. As we all know the right to participate in election 

has been made available to the State Subjects by a statute 

and not under any Fundamental Right conferred by the 

Constitution Act. The Constitution has authorized the 

Legislature to enact the law relating to the elections of the 

Legislative Assembly. The legislative powers can be 

exercised either by the Assembly or under section 41 of 

the Constitution Act by the President. The Ordinance 

promulgated by the President has the same force and 

effect as an Act of the Assembly. The President in the 

present case has competently promulgated the underchallenge 

Ordinance, therefore, it cannot be said that it 

lacks legal competence. Therefore, in the light of the above 

discussion, the arguments of the learned counsel for the 

appellant is misconceived that the impugned legislation is 

opposed to Fundamental Right No.7.” 

25. The learned Attorney General for Pakistan submitted that 

the impugned educational qualification was against the concept of 

political justice enshrined in the Objectives Resolution which, by 

virtue of Article 2A, was now a substantive part of the Constitution.


AND CMA NO. 994 TO 996 OF 2008 34 

The provisions of Article 17(2) and the term “political justice” have 

received judicial interpretation of this Court on more than one 

occasion. In the case reported as Benazir Bhutto v. Federation of 

Pakistan (PLD 1988 SC 416), at pages 615-616 of the report, Zaffar 

Hussain Mirza, J., in his separate judgment expressed his view as 

under: - 

“It may at this stage be stated that Article 17(2) declares 

that every citizen, not being in the service of Pakistan, 

shall have the right to form or be a member of a political 

party. This Article is included in Chapter I of Part II of the 

Constitution which is entitled “Fundamental Rights.” 

Article 8(2) contains a mandate to the State not to make 

any law which takes away or abridges the rights so 

conferred. The sacrosanct character and the sacredness of 

these rights is to be viewed in this context. In delegating 

respective powers to each of the three branches of 

government, the legislature, the executive and the 

judiciary, the people of Pakistan preserved for themselves 

certain fundamental rights, which were kept beyond the 

reach of the delegated authority vested in the said 

branches of the Government, to destroy or curtail. The 

Objectives Resolution, which has become a substantive 

part of the Constitution, is a historical document and 

represents the aspirations of the people of Pakistan, laying 

down the broad principles on which the Constitution was 

to be framed. It has stood the test of time and is generally 

accepted to represent the national ethos of the people of 

this country. A careful examination of this document will 

reveal the theory of delegation as its basic foundation. The 

following clause deals with fundamental rights: - 

“Wherein shall be guaranteed fundamental rights 

including quality of status, of opportunity and before 

law, social, economic and political justice, and 

freedom of thought, expression, belief, faith, worship 

and association, subject to law and public morality;” 

The expression “political justice” is very significant and it 

has been placed in the category of fundamental rights. 

Political parties have become a subject-matter of a 

fundamental right in consonance with the said provision in 

the Objectives Resolution. Even otherwise, speaking 

broadly our constitution is a Federal constitution based on 

the model of Parliamentary form of representative 

government prevalent in United Kingdom. It is also clear 

from the Objectives Resolution that principles of


AND CMA NO. 994 TO 996 OF 2008 35 

democracy as enunciated by Islam are to be fully observed. 

True and fair elections and the existence of political 

parties, is an essential adjunct of a functional democratic 

system of Government.” 

Muhammad Afzal Zullah, J., as he then was, (later Chief Justice) at 

pages 541-42 of the report held as under:- 

“Article 17(2) of the Constitution provides a basic 

guarantee to the citizen against usurpation of his will to 

freely participate in the affairs and governing of Pakistan 

through political activity relating thereto. In addition, it 

also seeks to protect Pakistan against the misuse of this 

right. It is significant to note that instead of the word 

“State”, “Federation”, or “Republic” which could easily be 

used in Article 17, the concept (and/or movement) itself, of 

Pakistan has been projected in the selection of the word 

“Pakistan” for use in this Article. It is no rhetoric. Article 1 

of the Constitution mentions Pakistan in this very 

context—as a Federation and a Republic only of one type; 

namely, Islamic. If it is so, there can be no escape from the 

accountability indicated in Article 17(2) and (3), amongst 

others, in the Islamic sense also—whether of the citizen or 

the political parties or the Government in the context of 

the political activity and the protection of the right to 

exercise it. That is why Article 17(2) besides the exposition 

of this “Right” makes provision for the accountability. It is 

not surprising that this second part speaks of what the 

Federal Government could do against a political party in 

the foregoing context. But what prima facie appears 

anomalous is that in the practical politics the Government 

would not ordinarily move against a party which has 

formed the Government.” 

The learned Judge has employed a forceful expression to highlight the 

importance of free participation of the people in the affairs and 

governance of the country through political activity by exercise of 

fundamental right enshrined in Article 17(2) of the Constitution. 

Subsequently, in the case of Mian Muhammad Nawaz Sharif v. 

President of Pakistan (PLD 1993 Supreme Court 473) this Court 

reiterated its view on Article 17(2) in Benazir Bhutto’s case (supra) as 

under:-


AND CMA NO. 994 TO 996 OF 2008 36 

“Actually, the objection being raised by the learned counsel 

for the respondents before us here stands practically 

answered already in Benazir Bhutto’s case PLD 1988 SC 

416. It was herein, inter alia, also observed:- 

“Reading Article 17(2) of the Constitution as a whole 

it not only guarantees the right to form or be a 

member of a political party but also to operate as 

political party … … … … … Again, the forming of a 

political party necessarily implies the right of 

carrying on of all its activities as otherwise the 

formation itself would be of no consequence. In other 

words, the functioning is implicit in the formation of 

the party” 

----------------------------------------------- 

Thus, in the scheme of our Constitution, the guarantee “to 

form a political party” must be deemed to comprise also 

the right by that political party to form the Government, 

wherever the said political party possesses the requisite 

majority in the Assembly. As was explained by Chief 

Justice Muhammad Haleem in the same judgment:- 

“Our Constitution is of the pattern of parliamentary 

democracy with a Cabinet system based on party 

system as essentially it is composed of the 

representatives of a party which is in majority……It is 

a party system that converts the results of a 

Parliamentary election into a Government.” 

Accordingly, the basic right “to form or be a member of a 

political party” conferred by Article 17(2) comprises the 

right of that political party not only to form a political 

party, contest elections under its banner but also, after 

successfully contesting the elections, the right to form the 

Government if its members, elected to that body, are in 

possession of the requisite majority. The Government of 

the political party so formed must implement the 

programme of the political party which the electorate has 

mandated it to carry into effect. Any unlawful order which 

results in frustrating this activity, by removing it from 

office before the completion of its normal tenure would, 

therefore, constitute an infringement of this Fundamental 

Right. 

In this connection, the interpretation of the word 

“operating” in Article 17(2) given by my learned brother 

Shafiur Rahman, J. further clarifies this aspect of the 

matter. He has rightly pointed out that the term 

“operating” includes both healthy and unhealthy operation 

of a political party. While Article 17 contains limitation and 

checks against unhealthy operation of the political party;


AND CMA NO. 994 TO 996 OF 2008 37 

no provision exists therein in relation to its healthy 

operation. However, the mere omission to make any 

specific provision in regard to this aspect does not imply 

that Fundamental Right 17 does not also comprise this 

aspect of the matter. Indeed, a positive right implies, as 

part of the same right, a negative right and vice a verse 

(see the views of Jackson, J. for the majority and Murphy, 

J. concurring in West Virginia State Board of Education v. 

Baranette (1942) 319 U.S. 624. Hence, if the lawful 

functioning of a Government of political party is frustrated 

(by its dismissal) by an unlawful order, such an order is an 

impediment in the healthy functioning of the political party 

and would, therefore, constitute an infringement of the 

fundamental right conferred by Article 17(2). A petition 

under Article 184(3) for its enforcement would, 

accordingly, be maintainable. 

In this view of the matter, the submission of the learned 

Attorney General that rights guaranteed under Article 

17(2) extend only to the right to form a political party and 

the right to become a member of a political party or for 

that matter the submission of Mr. S. M. Zafar that the 

right guaranteed under Article 17(2) extends only to all the 

political processes culminating in the election of its 

member to the National Assembly and no more cannot 

therefore be accepted. The preliminary objection, 

accordingly, fails and is rejected. 

In Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), Nasim 

Hasan Shah, J., as he then was (later Chief Justice), in his note of 

concurrence held as under: - 

“I agree with my learned brother Shafiur Rahman, J. and 

may perhaps usefully add that “the right to form or be a 

member of a political party” guaranteed under article 17(2) 

of the Constitution includes the right to contest and 

participate in the elections.” (Emphasis supplied) 

Thus, according to the exposition of law made in the above cases, the 

right to form or be a member of political party conferred by Article 

17(2) included the right to contest election and form government by a 

political party commanding confidence of majority of the members of 

National Assembly, or a Provincial Assembly, as the case may be.


AND CMA NO. 994 TO 996 OF 2008 38 

26. The learned counsel for the petitioners stated that the 

impugned educational qualification was neither part of the 

Constitution nor did it fulfil the criteria laid down in Article 62 (i) or 

Article 63(s) of the Constitution. The law providing qualification/ 

disqualification has to be enacted by the Majlis-e-Shoora (Parliament). 

Therefore, the Chief Executive’s Order No. 7 of 2002 was invalid 

having not been competently legislated by the Parliament. On the 

other hand, Mr. Khaki, the intervener, submitted that Article 62 of 

the Constitution provided qualifications for membership of the Majlise-Shoora. 

Under clause (i) of the said Article, it is provided that a 

person is not qualified to be elected or chosen as a member of Majlise-Shoora 

(Parliament) unless he possesses such other qualifications 

as may be prescribed by Act of Majlis-e-Shoora. Thus, the impugned 

qualification falls within the purview of Article 62(i) of the 

Constitution. We have deliberated on this aspect of the matter. We 

find that the objection of the learned counsel for the petitioners that 

the impugned educational qualification was not competently 

legislated is not tenable, inasmuch as it was also added by means of 

clause (cc) of subsection (1) of section 99 of the Representation of the 

People Act, 1976. 

27. The learned counsel for the petitioners vehemently 

contended that the qualifications laid down in Article 62 of the 

Constitution were not subject to acquisition, i.e., they could not be 

acquired by human effort and were in the nature or category of 

inborn or inherent traits. Therefore, the impugned graduation 

qualification was not valid. It was contended that the impugned


AND CMA NO. 994 TO 996 OF 2008 39 

qualification was also against the Injunctions of Islam under which 

the only test was “Taqwa”. Moreover, the wisdom or knowledge was 

not always subject to any degree from any institution. Wise but 

uneducated people abounded everywhere. The Holy Prophet 

Muhammad (SAW) was an “Ummi” (a person who did not know how to 

read or write). On the other hand, Mr. Khaki contended that there 

were two characteristics: one, which could not be changed by human 

effort, e.g., race, colour, complexion etc., the other, which could be 

changed by human effort, e.g., poverty, literacy, etc. According to 

him, education was a trait which could be acquired, hence the same 

was a valid qualification. He submitted that the Prophet Muhammad 

(SAW) in the Last Sermon (Khutba 

Hijjat-ul-wida) specifically 

prohibited discrimination on the basis of colour, region, etc., which 

could not be changed by human effort. He submitted that the 

discrimination on the basis of education was in line with the 

Declaration of Allah (SWT) contained in verse of the Holy Quran which 

says– 

“Are those equal, those who know and those who do not 

know? It is those who are endued with understanding that 

receive admonition.” [Surah Al-Zumar (39 : 9)] 

He also submitted that in the Islamic dispensation a Bedouin would 

not be a member of the Majlis-e-Shoora. He further submitted that in 

Shariah, Al-Hukam i.e. law was framed for general application. In the 

sphere of modern law, interpretation of the Constitution was 

entrusted to highly qualified persons. He stated that casting of a vote 

was a right, but becoming a member was a duty. He further 

submitted that different criteria in respect of age etc., for voters and


AND CMA NO. 994 TO 996 OF 2008 40 

for members of National Assembly and a Provincial Assembly were 

laid down – for voters the minimum age was 18 years whereas for 

members of the National Assembly or a Provincial Assembly it was 25 

years. Lastly, he submitted that the graduation qualification was the 

need of the hour, inasmuch as on account of low literacy rate it was a 

step to encourage people to acquire higher educational qualifications. 

28. At this stage, it may be advantageous to refer to the 

provisions of Article 62, which reads as under: - 

“62. A person shall not be qualified to be elected or 

chosen as a member of Majlis-e-Shoora (Parliament) 

unless:- 

(a) 

(b) 

he is a citizen of Pakistan; 

he is, in the case of National Assembly, not less than 

twenty-five years of age and is enrolled as a voter in 

any electoral roll in – 

(i) 

(ii) 

any part of Pakistan, for election to a general 

seat or a seat reserved for non-Muslims; and 

any area in a Province from which he seeks 

membership for election to a seat reserved for 

women. 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

he is, in the case of Senate, not less than thirty 

years of age and is enrolled as a voter in any area in 

a Province or, as the case may be, the Federal 

Capital or the Federally Administered Tribal Areas, 

from where he seeks membership; 

he is a good character and is not commonly known 

as one who violates Islamic Injunctions; 

he has adequate knowledge of Islamic teaching and 

practices obligatory duties prescribed by Islam as 

well as abstains from major sins; 

he is sagacious, righteous and non-profligate and 

honest and amen; 

he has not been convicted for a crime involving 

moral turpitude or for giving false evidence; 

he has not, after the establishment of Pakistan, 

worked against the integrity of the country or 

opposed the ideology of Pakistan : 

Provided that the disqualifications specified in 

paragraphs (d) and (e) shall not apply to a person


AND CMA NO. 994 TO 996 OF 2008 41 

who is a non-Muslim, but such a person shall have 

good moral reputation; and 

(i) 

he possesses such other qualification as may be 

prescribed by Act of Majlis-e-Shoora (Parliament).” 

29. A perusal of Article 62 shows that there are two types of 

qualifications, viz. the qualifications mentioned in the Constitution 

itself and the qualifications to be prescribed by law made under the 

said Article. It has already been held in some judgments, as for 

example the PML (Q)’s case or Muhammad Yousuf’s case (supra) that 

a citizen has a right to contest election, but the said proposition does 

not envisage an unbridled right because the same is subject to the 

provisions of the Constitution and the law. Only those citizens are 

eligible to contest election who possess the qualifications contained in 

Article 62 and the law made thereunder and do not suffer from 

disqualifications laid down by or under Article 63 of the Constitution. 

While there is no cavil to the above proposition, it is equally true, as 

rightly contended by the learned counsel for the petitioners and the 

learned Attorney General for Pakistan that the qualifications or 

disqualifications added by law made by the Parliament within the 

contemplation of the aforesaid Articles were liable to be tested on the 

touchstone of Articles 17 and 25 of the Constitution to examine 

whether the same were reasonable or otherwise. 

30. We have considered the submissions made by the learned 

counsel for the petitioners, the intervener and the learned Attorney 

General for Pakistan. Indeed, formal education is something, which 

can be acquired and is not an inborn quality. The qualifications 

mentioned in Article 62 with one or two exceptions are such as are


AND CMA NO. 994 TO 996 OF 2008 42 

not subject to acquisition with much human effort, e.g. citizenship, 

age, etc. Virtues such as wisdom, knowledge or understanding belong 

to the same category and are not much dependent on formal 

education, which only serves to ignite or polish those qualities. This 

aspect was considered by the High Court of Azad Jammu & Kashmir 

in a similar context in the case of Muhammad Yusuf v. Azad 

Government (PLD 2001 Azad J&K 60). It was held as under: - 

“I cannot disagree with the argument of Mr. Akram Sheikh 

that the knowledge and wisdom is not subject to the 

certificates and degrees; it is a God-gifted virtue and there 

are numerous examples in the world and around us that 

even illiterate or semi-illiterate people have sea deep level 

of knowledge on account of their experience, inborn talent, 

deep non-academic studies etc., and in some cases 

informally educated or non-educated people have proved 

better than formally or well-educated persons, but these 

are exceptions. Similarly, there are people who are degreeholders 

and highly educated but proved failure and in 

some cases are parasites but those are also exceptions. 

Non-educated but knowledgeable people can guide, 

educate, train and transmit their wisdom and experience 

to the educated young generations who have to take over 

from them, and overtaking is a natural process for which 

one should be voluntarily prepared and accept the hard 

facts of the life. Service for the nation can be rendered 

even without being a member of the Assembly.” 

We would observe that that of course wisdom and knowledge are 

God-gifted, inborn and inherent virtues and may not always be 

dependent on acquiring certificates or degrees. We would add that 

such persons abound in the society. It would not be fair to deprive 

the society of their service. Performance of any individual, or any 

class, literate or illiterate whether he or they did well or bad cannot 

be made a yardstick particularly with regard to a public 

representative office. The framers of the Constitution have already 

taken care of education related qualification, inasmuch as Clauses (e)


AND CMA NO. 994 TO 996 OF 2008 43 

and (f) of Article 62 provide that a candidate for election shall be a 

person who has adequate knowledge of Islamic teaching and 

practices obligatory duties prescribed by Islam, who abstains from 

major sins and is sagacious, righteous, non-profligate, honest and 

ameen. These provisions amply cover all the aspects agitated by Mr. 

Khaki. Does a person with adequate knowledge of Islamic teaching 

and who practices obligatory duties prescribed by Islam as well as 

abstains from major sins and is also sagacious, righteous, nonprofligate, 

honest and ameen need any formal education to be able to 

contest election? The answer is a big no. Men of these qualities will 

fulfil the demands of their mandate and deliver the goods. The need is 

to ensure that the public representative offices are manned by 

persons possessing such attributes. Presence of such persons in 

public offices will rid the society of the evils it is afflicted with. 

31. It was vehemently contended by the learned counsel for 

the petitioners that this Court while upholding the educational 

qualification in PML (Q)’s case was influenced by the functioning of 

four National Assemblies (1988-99). Now the performance of the fifth 

Assembly, which was a graduate Assembly, was before this Court. 

Though the said Assembly was expected to come up with better 

performance, both quantity-wise and quality-wise, but the relevant 

legislation data spoke otherwise. The rate of legislation was lower 

than that of the aforesaid four Assemblies, inasmuch as only 50 bills 

were passed by it during its five years tenure. In contrast, during 

1997-99, 74 bills were passed by the then Assembly. On this score 

too, the impugned graduation qualification had no relevance. Hence,


AND CMA NO. 994 TO 996 OF 2008 44 

a case for revisiting and overruling the judgment in PML (Q)’s case 

was made out. It was also contended that the policies formulated by 

this Assembly led to unprecedented crises. On the other hand, Mr. 

Khaki stated that the reason for comparatively less legislation by the 

last Assembly was that the educated members would discuss and 

deliberate upon the issues while the uneducated members would just 

pass the bill without any discussion or deliberation. As observed 

elsewhere in the course of this judgment, the performance of any 

individual or any group of individuals or any class is not the 

touchstone for determining the validity of any legislative action. The 

Court has to decide the controversy on legal and constitutional 

grounds. 

32. The learned counsel for the petitioners next contended 

that the impugned law was bad and the tenor of the law clearly 

indicated that the same had been introduced to oust certain 

politicians from the arena of politics. He submitted that experienced 

Parliamentarians, i.e. the persons who were Ministers many a time in 

the past, such as Ghulam Mustafa Jatoi, Abida Hussain and Gohar 

Ayub, a former Speaker and several others were deprived from 

exercising their right to contest election for want of graduation 

qualification. Mr. Khaki argued that during the times of the Holy 

Prophet (Peace be upon him) only competent people were sent to the 

Majlis-e-Shoora. In response, the learned Deputy Attorney General 

submitted that Mr. Khaki had conceded the case of the petitioners 

who wanted nothing else but allowing experienced and competent 

people to contest election regardless of their educational


AND CMA NO. 994 TO 996 OF 2008 45 

qualifications. However, the learned Attorney General for Pakistan 

stated that a law could not be declared null and void on the ground of 

its being bad. Often laws made by previous governments were termed 

as bad by the successor governments. The examples may be found in 

various Ehtisab laws made by the successive governments. Be that as 

it may, we would not like to go into this question as the case has to 

be decided with reference to the enforcement of fundamental rights. 

33. Now this brings us to the last and final question requiring 

determination, i.e., whether the impugned graduation qualification is 

reasonable on the touchstone of the provisions of Articles 17 and 25 

of the Constitution? It was vehemently contended by the learned 

counsel for the petitioners that under Article 17(2), the State was 

authorized to impose reasonable restrictions in the interest of the 

sovereignty or integrity of Pakistan or public order, but the 

possession of graduation qualification for being a candidate for an 

election had no nexus with ‘sovereignty’ ‘integrity of Pakistan’, or 

‘public order’. The learned Attorney General for Pakistan stated that 

restriction imposed on the right to contest election in the form of 

graduation qualification was neither reasonable nor the same was 

based upon any rational classification envisaged in I.A. Sharwani’s 

case (supra), inasmuch as there was neither any intelligible 

differentia nor the differentia on the basis of educational classification 

had any rational nexus to the object sought to be achieved by such 

qualification. Mr. Khaki submitted that the word ‘discrimination’ was 

defined as ‘unequal treatment of equal persons’, which was not the 

case here as all non-graduates were treated alike. As to the alleged


AND CMA NO. 994 TO 996 OF 2008 46 

discrimination on the basis of qualification, he submitted that if the 

petition was accepted, it would cause discrimination to the people 

who could not participate in general election on account of being nongraduate 

and only few persons contesting by-election would be 

benefited by this decision. 

34. The learned counsel also contended that under Article 37 

of the Constitution, the State was obliged, inter alia, to promote with 

special care the education and economic interests of backward 

classes or areas, remove illiteracy and provide free and compulsory 

secondary education within minimum possible period. To achieve 

these objectives no time limit was fixed whereas the condition of being 

a graduate was imposed instantly. Under Article 30(2) of the 

Constitution, 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 that no action shall lie against the State, any 

organ or authority of the State, or any person on such ground. Thus, 

the inaction of the State in not providing equal opportunities of 

education in the country does not entail any penal consequences. 

Nevertheless, the inaction of citizens in not acquiring educational 

qualification has been made punishable instantly and the nongraduates 

deprived of contesting election. Indeed, this is an 

anomalous situation. 

35. It was contended by Mr. Khaki that to cope with the low 

literacy rate, the educational qualification could be relaxed in respect 

of under-developed or far flung areas, such as Balochistan etc. In the 

alternative he submitted that the requirement of educational


AND CMA NO. 994 TO 996 OF 2008 47 

qualification could be lowered from graduation to intermediate for 

next general election and not for by-election. However, he emphasized 

that doing so was the job of the executive or the legislature and not of 

the judiciary. He reiterated that the petition was belatedly filed after 

the Parliament had been elected and the government formed. The 

party in power had the opportunity and means to table a bill in the 

Parliament and get the law amended. The law was reasonable and in 

view of the constitutional protection, the petition should be 

dismissed. 

36. With the assistance of the learned counsel for the 

petitioners, the learned Deputy Attorney General, the intervener and 

the learned Attorney General for Pakistan, we have gone through the 

case-law on what is reasonable or unreasonable restriction or 

classification with reference to the enforcement of fundamental rights 

guaranteed under the Constitution. We would suffice by referring to 

only few of the cases. In Jibendra Kishore Achharyya Chowdhury v. 

Province of East Pakistan [PLD 1957 Supreme Court (Pak) 9], this 

Court at page 38 held as under: - 

Whatever the expression “equal protection of law” may 

mean, it certainly does not mean equality of operation of 

legislation upon all citizens of the State. The expression 

has been borrowed from the Fourteenth Amendment to 

the Constitution of the United States which was intended 

to secure to the emancipated Negroes equal rights to the 

enjoyment of life, liberty and property. Though in the 

United States the guarantee of equal protection of the laws 

has been invoked upon more occasions than any other 

constitutional guarantee, with the possible exception of 

the due process of law guarantee, also contained in the 

Fourteenth Amendment, no rule has yet been formulated 

by the Supreme Court as to what may be regarded as a 

denial of the “equal protection of the laws” that will 

embrace every case and the application of the principle 

has always depended on the facts of each case as it came


AND CMA NO. 994 TO 996 OF 2008 48 

before the Court. But notwithstanding the disinclination of 

the court to give an all inclusive definition of the 

expression, some broad propositions as to its meaning 

have been enunciated. One of these propositions is that 

equal protection of the laws means that no person or class 

of persons shall be denied the same protection of the laws 

which is enjoyed by other persons or other classes in like 

circumstances and conditions, both in the privileges 

conferred and in the liabilities imposed. In the application 

of these principles, however, it has always been recognized 

that classification of persons or things is in no way 

repugnant to the equality doctrine provided the 

classification is not arbitrary or capricious, is natural and 

reasonable and bears a fair and substantial relation to the 

object of the legislation. It is not for the Courts in such 

cases, it is said, to demand from the legislature a scientific 

accuracy in the classification adopted. If the classification 

is relevant to the object of the Act it must be upheld 

unless the relevancy is too remote or fanciful. A 

classification that proceeds on irrelevant consideration, 

such as differences in race, colour or religion will certainly 

be rejected by the Courts. Applying these tests to the 

present case, it cannot but be held that if in consequence 

of abolishing the system of private rent for agricultural 

land, it also became necessary to make some provision for 

the outgoing landlords, the classification of the landlords 

on the basis of their net incomes at the time of their 

expropriation was necessary and not an unreasonable 

classification. 

In Abul Aala Maudoodi v. State (PLD 1964 SC 673 at 707) this Court 

expounded the law on reasonable restriction as under: - 

“The view that the expre ssion “reasonable restrictions’ in a 

case like the present should be considered exclusively in 

relation to the factual grounds on which the law imposing 

the restrictions declares that they may be imposed is one, 

which in my view, cannot be accepted by a Court which is 

required to enforce a citizen’s right of free association as 

formulated in the Constitution. The citizen is entitled to 

approach the Court for a declaration, firstly, that his 

freedom has been restrained under law, and secondly, 

that it has been unreasonably restrained, and for the 

determination of the latter question, I find it impossible to 

exclude from consideration, the circumstances of the 

application of the restraint. A circumstance of overpowering 

importance, where the Constitution guarantees 

such a freedom, would be that the restraint has been 

applied by a person in authority acting merely on his own 

opinion. I may here cite in support a short passage from


AND CMA NO. 994 TO 996 OF 2008 49 

the judgment of the United States Supreme Court in the 

celebrated case of Yick Wo (1) 1 – 

“For the very idea that one man may be compelled to 

hold his life, or the means of living, or any material 

right essential to the enjoyment of life, at the mere 

will of another, seems to be intolerable in any 

country where freedom prevails, as being the 

essence of slavery itself” 

Although some weight might be allowed to the contention 

of Mr. Manzur Qadir that the Courts should assume that 

an opinion of the Provincial Government in a case like the 

present has been formed in a responsible manner after a 

proper examination of the relevant facts, yet I do not 

conceive that the intention of the Constitution is that the 

citizens shall enjoy their Fundamental Rights subject to 

an opinion based, however responsibly, on the mere onesided 

appraisement of such facts as have been brought to 

the notice of the authority making the order. Great 

importance is to be attached to the fact that the 

Constitution itself makes the Governor, namely a single 

person, the sole source of executive authority in the 

Province. To accept the view advanced by Mr. Manzur 

Qadir would be in effect to cause the opinion of a single 

person to prevail against the Fundamental Right of all the 

citizens, over whom he is to exercise executive 

responsibility and power in the particular respect. The 

Courts cannot regard themselves as satisfied that the 

citizen’s freedom has been subjected to a reasonable 

restriction unless it is proved to their satisfaction that not 

only the grounds of the restrictions as stated by the law 

are reasonable in themselves, but they have been applied 

reasonably as required by the Constitution. The only 

manner which the Courts themselves would regard as 

reasonable is that existence of the factual grounds of the 

restriction should have been established in the mode 

which the Courts recognize as essential where a right to 

life or liberty or property is concerned, namely, after a 

proper hearing given to the person concerned. (I postpone 

for later consideration the question whether to grant the 

hearing after making the order, can ever be reasonable). 

Any presumption that the authority in question has acted 

in accordance with justice or reason or equity, if made by 

the Courts in respect of such actions would, in my 

opinion, amount to a denial of the duty which the Courts 

are called upon to discharge in respect of these 

fundamental matters. The duty of the Courts would be 

thus to apply the principles of reason and justice 

according to the procedures with which they are familiar, 

1 30 Lawyers’ Edition, p. 220


AND CMA NO. 994 TO 996 OF 2008 50 

to the ascertainment of the questions whether the 

restrictions in themselves are consistent with justice and 

reason, whether the conditions for their application have 

in fact been established, and whether they have been 

applied by competent authority. These are matters falling 

within the large principle of judicial review as a power 

possessed by the Courts, for the correction of excesses in 

action under law.” 

In the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 

1041), this Court summarized the propositions governing equal 

protection of law and reasonable classification as under: - 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

(vi) 

that equal protection of law does not envisage that every 

citizen is to be treated alike in all circumstances, but it 

contemplates that persons similarly situated or similarly 

placed are to be treated alike; 

that reasonable classification is permissible but it must be 

founded on reasonable distinction or reasonable basis; 

that different laws can validly be enacted for different 

sexes, persons in different age groups, persons having 

different financial standings, and persons accused of 

heinous crimes; 

that no standard of universal application to test 

reasonableness of a classification can be laid down as 

what may be reasonable classification in a particular set 

of circumstances may be unreasonable in the other set of 

circumstances; 

that a law applying to one person or one class of persons 

may be constitutionally valid if there is sufficient basis or 

reason for it, but a classification which is arbitrary and is 

not founded on any rational basis is no classification as to 

warrant its exclusion from the mischief of Article 25; 

that equal protection of law means that all persons equally 

placed be treated alike both in privileges conferred and 

liabilities imposed; 

(vii) that in order to make a classification reasonable, it should 

be based— 

(a) 

(b) 

on an intelligible differentia which distinguishes 

persons or things that are grouped together from 

those who have been left out; and 

that the differentia must have rational nexus to the 

object sought to be achieved by such classification. 

Principles as to classification are as under: - 

(a) 

A law may be constitutional even though it relates to 

a single individual if, on account of some special 

circumstances, or reasons applicable to him and not


AND CMA NO. 994 TO 996 OF 2008 51 

applicable to others, that single individual may be 

treated as a class by himself; 

(b) There is always a presumption in favour of the 

constitutionality of an enactment and the burden is 

upon him who attacks it to show that there has been 

a clear transgression of the constitutional principles. 

The person, therefore, who pleads that Article 25, 

has been violated, must make out that not only has 

he been treated differently from others but he has 

been so treated from persons similarly 

circumstanced without any reasonable basis and 

such differential treatment has been unjustifiably 

made. However, it is extremely hazardous to decide 

the question of the constitutional validity of a 

provision on the basis of the supposed existence of 

facts by raising of presumption. Presumptions are 

resorted to when the matter does not admit of direct 

proof or when there is some practical difficulty to 

produce evidence to prove a particular fact; 

(c) it must be presumed that the Legislature 

understands and correctly appreciates the needs of 

its own people, that its laws are directed to problems 

made manifest by experience, and that its 

(d) 

discriminations are based on adequate grounds; 

the Legislature is free to recognize the degrees of 

harm and may confine its restriction to those cases 

where the need is deemed to be the clearest; 

(e) in order to sustain the presumption of 

constitutionality, the court may take into 

consideration matters of common knowledge, 

matters of common report, the history of the times 

and may assume every state of facts which can be 

conceived existing at the time of legislation; 

(f) 

(g) 

(h) 

while good faith and knowledge of the existing 

conditions on the part of the Legislature are to be 

presumed, if there is nothing on the face of the law 

or the surrounding circumstances brought to the 

notice of the Court on which the classification may 

reasonably be regarded as based, the presumption of 

the constitutionality cannot be carried to the extent 

of always holding that there must be some 

undisclosed and unknown reasons for subjecting 

certain individuals or corporations to hostile or 

discriminating legislation; 

a classification need not be scientifically perfect or 

logically complete; and 

the validity of a rule has to be judged by assessing 

its overall effect and not by picking up exceptional 

cases. What the Court has to see is whether the 

classification made is a just one taking all aspects 

into consideration.


AND CMA NO. 994 TO 996 OF 2008 52 

To understand the concept of reasonable restriction in the context of 

fundamental rights guaranteed under the Constitution, reference may 

also be made to the following case-law: - 

The phrase “reasonable restriction” connotes that the 

limitation imposed on a person in enjoyment of the right 

should not be arbitrary or of an excessive nature, beyond 

what is required in the interests of the public. The word 

“reasonable” implies intelligent care and deliberation, that 

is, the choice of a course which reason dictates. Legislation 

which arbitrarily or excessively invades the right cannot be 

said to contain the quality of reasonableness and unless it 

strikes a proper balance between the freedom guaranteed 

in Art. 19(1)(g) and the social control permitted by Cl. (6) of 

Art. 19, it must be held to be wanting in that quality. Sri 

Lakshmindra Theertha Swamiar v. Commissioner HRE, 

Madras (AIR 1952 Mad. 613 at p. 636). 

The phrase “reasonable restriction” connotes that the 

limitation imposed on a person in enjoyment of the right 

should not be arbitrary or of an excessive nature, beyond 

what is required in the interest of the public. Legislation 

which arbitrarily or excessively invades the right cannot be 

said to contain the quality of reasonableness. 

Santhanakrishna Odayar v. Vaithilingam (AIR 1954 Mad. 51 

at p. 54). 

Clause (6) of Art. 19 protects a law which imposes in the 

interest of the general public reasonable restrictions on the 

exercise of the right conferred by sub-Clause (g) of Cl. (1) of 

Art.19, Quite obviously it is left to the Court, in the case of 

dispute to determine the reasonableness of the restrictions 

imposed by the law. In determining that question the Court 

cannot proceed on a general nation of what is reasonable in 

the abstract or even on a consideration of what is 

reasonable from the point of view of the person or persons 

on whom the restrictions are imposed. The right conferred 

by sub-Clause (g) is expressed in general language and if 

there had been no qualifying provision like Cl. (6), the right 

so conferred would have been an absolute one. To the 

person who has this right any restriction will be irksome 

and may well be regarded by him as unreasonable. But the 

question cannot be decided on that basis. What the Court 

has to do is to consider whether the restrictions imposed 

are reasonable in the interest of the general public. M. H. 

Quareshi v. State of Bihar (AIR 1958 SC 731 at p.744). 

Reasonable restriction.—In order to test the reasonableness 

of restrictions no general standard exists. It will depend 

upon a variety of reasons and the nature of the safeguard,


AND CMA NO. 994 TO 996 OF 2008 53 

if any provided to prevent possibilities of abuse of power. 

The investment of arbitrary power in the executive to put to 

an end the existence of a political party on the basis of its 

own satisfaction which may or may not be capable of being 

proved in a Court of Law may well be an unreasonable 

restriction having regard to the importance of the right of 

association guaranteed. Islamic Republic of Pakistan v. 

Abdul Wali Khan (PLD 1976 SC 57). 

In a recent judgment reported as Pakistan Muslim League (N) v. 

Federation of Pakistan (PLD 2007 SC 642), this Court exhaustively 

examined the case-law on this aspect. Some of the propositions noted 

therein are reproduced below: - 

“29. No infringement or curtailment in any Fundamental 

Right can be made unless it is in the public interest and 

in accordance with valid law. No doubt that reasonable 

restriction can be imposed but it does not mean arbitrary 

exercise of power or unfettered or unbridled powers which 

surely would be outside the scope of “reasonable 

restriction” and it must be in the public interest. The 

concept of “reasonable restriction” was discussed in case 

East and West Steamship Co. v. Pakistan (PLD 1958 SC 

(Pak.) 41) as follows:- 

“A reasonable restriction” in the sense of Article 11 

is one which is imposed with due regard to the 

public requirement which it is designed to meet. 

Anything which is arbitrary or excessive will of 

course be outside the bounds of reasons in the 

relevant regard, but in considering the disadvantage 

imposed upon the subject in relation to the 

advantage which the public derives, it is necessary 

that the Court should have a clear appreciation of 

the public need which is to be met and where the 

statute prescribes a restraint upon the individual, 

the court should consider whether it is a reasonable 

restraint, in the sense of not bearing excessively on 

the subject and at the same time being the 

minimum that is required to preserve the public 

interest.” 

37. It is, however, to be noted that “where a 

fundamental right is sought to be restricted by any law, 

care should be taken that they provide sufficient 

safeguards against casual, capricious or even malicious 

exercise of the powers conferred by them. In this respect it 

must be remembered that though a law may not in terms 

restrict the exercise of certain right under this Article yet


AND CMA NO. 994 TO 996 OF 2008 54 

if it has the effect of doing so, it will be open to challenge 

(AIR 1961 SC 293, AIR 1952 SC 115, 1952 SCR 572).” 

37. We have also considered the dictionary meaning of the 

word ‘reasonable’ i.e. just, proper, fair, equitable, and that which is 

acceptable to a man of common prudence and that of the word 

‘unreasonable’ i.e. unjust, unfair and that which is not acceptable to 

a man of ordinary prudence. It is well settled that under Article 17(2), 

restrictions may be placed on the right to contest election, but such 

restrictions have to be reasonable. As held in Jammu and Kashmir, 

Tahreek-e-Amal Party v. The Azad State of Jammu & Kashmir (PLD 

1985 AJ&K 95), reasonable restriction within the contemplation of 

Article 17 of the Constitution is one which does not deprive the 

society as a whole, or the majority of people from exercising their 

fundamental rights. In the said case, vires of section 8-A introduced 

in the Azad Jammu & Kashmir Political Parties Ordinance, 1985 were 

challenged before the High Court of Azad Jammu & Kashmir. The 

impugned section 8-A provided that the registration of a political 

party shall be cancelled if the number of votes secured by it at a 

general election was less than 12 and a half per cent of the aggregate 

of the valid votes cast at the said election and less than 5% of the 

aggregate of valid votes cast in each district. The High Court found 

the aforesaid provision as violative of the fundamental right of 

freedom of association envisaged by Article 7 of the Azad Jammu & 

Kashmir Interim Constitution Act, 1974 (equivalent of Article 17 of 

the Constitution of Pakistan) and declared the same as void. 

38. The learned Deputy Attorney General submitted that right 

to contest election was a valuable right of the citizens and could not


AND CMA NO. 994 TO 996 OF 2008 55 

be curtailed as was done through the impugned educational 

qualification. In support of his contention, he referred to the case of 

Abdul Majid v. Chief Election Commissioner Azad Jammu & Kashmir 

(PLD 1985 Azad J & K 83). The petitioner in the said case was 

debarred from contesting election on the ground that he was an office 

bearer of an unregistered political party. For the redressal of 

grievance, he invoked the writ jurisdiction. The High Court of Azad 

Jammu & Kashmir held that franchise was a celebrated right of the 

citizens and it was always desirable that this right was exercised by 

the citizens freely, without discrimination, restriction or hindrance. It 

was further held that the restrictions could not be imposed to abridge 

or control the franchise keeping in view the rule of beneficial 

construction. The restriction was held to be tantamount to 

disenfranchising a citizen and was declared to have been passed 

without lawful authority and, as such of no legal effect. 

39. The learned Attorney General submitted that in India the 

question of requirement of educational qualification for contesting 

election was discussed in the case reported as Union of India v. 

Association for Democratic Reforms (AIR 2002 SC 2112). At Para. 10 of 

the judgment, the Court held as under: - 

“Supplementing the aforesaid submission, Mr. Ashwini 

Kumar, learned senior counsel appearing on behalf of 

intervener – Indian National Congress submitted that the 

Constituent Assembly had discussed and negatived 

requirement of educational qualification and possession of 

the assets to contest election. For that purpose, he 

referred to the Debates in the Constituent Assembly. He 

submitted that 3/4 th of the population is illiterate and 

providing education as a qualification for contesting 

election was not accepted by the Constituent Assembly. 

Similarly, prescribing of property qualification for the 

candidates to contest election was also negatived by the


AND CMA NO. 994 TO 996 OF 2008 56 

Constituent Assembly. He, therefore, submitted that 

furnishing of information regarding assets and 

educational qualification of a candidate is not at all 

relevant for contesting election and even for casting votes. 

Voters are not influenced by the educational qualification 

or by possession of wealth by a contesting candidate. It is 

his say that the party whom he represents is interested in 

purity of election and wants to stop entry of criminals in 

politics or its criminalization but it is for the Parliament to 

decide the said question. It is submitted that delicate 

balance is required to be maintained with regard to the 

jurisdiction of the Parliament and that of Courts and once 

the Parliament has not amended the Act or the Rules 

despite the recommendation made by the Law 

Commission or the report submitted by the Vohra 

Committee, there was no question of giving any direction 

by the High Court to the Election Commission.” 

In the above case, the Election Commission of India issued an 

instruction that educational qualifications of all the candidates be 

published. The matter came up before the Supreme Court and the 

direction of the Election Commission was upheld in the following 

terms: - 

“24. For health of democracy and fair election, whether 

the disclosure of assets by a candidate, his/her 

qualification and particulars regarding involvement in 

criminal cases are necessary for informing voters, may be 

illiterate, so that they can decide intelligently, whom to 

vote? In our opinion, the decision of even illiterate voter, if 

properly educated and informed about the contesting 

candidate would be based on his own relevant criteria of 

selecting a candidate. In democracy, periodical elections 

are conducted for having efficient governance for the 

country and for the benefit of citizens-voters. In a 

democratic form of government, voters are of utmost 

importance. They have right to elect or re-elect on the 

basis of the antecedents and past performance of the 

candidate. He has choice of deciding whether holding of 

educational qualification or holding of property is relevant 

for electing or re-electing a person to be his representative. 

Voter has to decide whether he should cast vote in favour 

of a candidate who is involved in criminal case. For 

maintaining purity of elections and healthy democracy, 

voters are required to be educated and well informed about 

the contesting candidates. Such information would include 

assets held by the candidate, his qualification including 

educational qualification and antecedents of his life


AND CMA NO. 994 TO 996 OF 2008 57 

including whether he was involved in a criminal case and if 

the case is decided – its result, if pending – whether charge 

is framed or cognizance is taken by the Court? There is no 

necessity of suppressing the relevant facts from the 

voters.” 

At Para. 25 of the above judgment, the Court held as under: - 

25. The Constitution Bench of this Court in Mohinder 

Singh Gill v. The Chief Election Commissioner, New Delhi 

(1978) 1 SCC 405) while dealing with a contention that 

Election Commission has no power to cancel the election 

and direct re-poll, referred to the pervasive philosophy of 

democratic elections which Sir Winston Churchill vivified 

in matchless words: - 

“At the bottom of all tributes paid to democracy is 

the little man, walking into a little booth, with a little 

pencil, making a little cross on a little bit of paper – 

no amount of rhetoric or voluminous discussion can 

possibly diminish the overwhelming importance of 

the point. 

If we may add, the little large Indian shall not be 

hijacked from the course of free and fair elections by 

mob muscle methods, or subtle perversion of 

discretion by men ‘dressed in little, brief authority’. 

For ‘be you ever so high, the law is above you’. 

The moral may be stated with telling terseness in the 

words of William Pitt: “Where laws end, tyranny 

begins’. Embracing both these mandates and 

emphasizing their combined effect is the elemental 

law and politics of Power best expressed by 

Benjamin Disraeli (Vivian Grey, BK VI Ch 7): 

I repeat… that all power is trust that we are 

accountable for its exercise – that, from the 

people and for the people, all springs, and all 

must exist”. 

………………………………………” 

Once again the Supreme Court of India happened to consider the 

issue of disclosure of information regarding educational qualifications 

of the electoral candidates in the case reported as Peoples Union for 

Civil Liberties (PUCL) v. Union of India (AIR 2003 Supreme Court 2363).


AND CMA NO. 994 TO 996 OF 2008 58 

At Para. 128 of the judgment (p. 2410), the Court, in yet stronger 

words, held as under: - 

“The last item left for discussion is about educational 

qualifications. In my view, the disclosure of information 

regarding educational qualifications of a candidate is not 

an essential component of the right to information flowing 

from Art. 19(1)(a) Consistent with the principle of adult 

suffrage, the Constitution has not prescribed any 

educational qualification for being member of the House of 

the People or Legislative Assembly. That apart, I am 

inclined to think that the information relating to 

educational qualifications of contesting candidates does 

not serve any useful purpose in the present context and 

scenario. It is a well known fact that baring a few 

exceptions, most of the candidates elected to Parliament or 

the State Legislatures are fairly educated even if they are 

not graduates or post-graduates. To think of illiterate 

candidates is based on a factually incorrect assumption. 

To say that well educated persons such as those having 

graduate and post graduates qualifications will be able to 

serve the people better and conduct themselves in a better 

way inside and outside the House is nothing but 

overlooking the stark realities. The experience and events 

in public life and the legislatures have demonstrated that 

the dividing line between the well educated and less 

educated from the point of view of his/her caliber and 

culture is rather thin. Much depends on the character of 

the individual, the sense of devotion to duty and the sense 

of concern to the welfare of the people. These 

characteristics are not the monopoly of well educated 

person, I do not think that it is necessary to supply 

information to the voter to facilitate him to indulge in an 

infructuous exercise of comparing the educational 

qualifications of the candidates. It may be that certain 

candidates having exceptionally high qualifications in 

specialized field may prove useful to the society, but it is 

natural to expect that such candidates would voluntarily 

come forward with an account of their own academic and 

other talents as a part of their election programme. Viewed 

from any angle, the information regarding educational 

qualifications is not a vital and useful piece of information 

to the vote, in ultimate analysis. At any rate, two views are 

reasonably possible. Therefore, it is not possible to hold 

that the Parliament should have necessary information 

regarding educational qualifications of the candidates.” 

The Indian Supreme Court, in the light of the discussions by the 

framers of the Constitution on the question of prescribing educational


AND CMA NO. 994 TO 996 OF 2008 59 

qualification for contesting election held that in a democratic form of 

government, voters were of utmost importance. They had the right to 

elect or re-elect on the basis of the antecedents and past performance 

of a candidate. They had the choice of deciding whether holding of 

educational qualification or property was relevant for electing or reelecting 

a person as their representative. 

40. The learned Attorney General submitted a list of 29 

countries, United States of America inclusive, giving qualification/ 

eligibility criteria of the members of their Parliaments/legislative 

bodies. These are as under: - 

Section 48 of the Constitution of Argentina which deals 

with question of membership of the congress consisting of 

two houses, one of Deputies of the Nation and the other of 

Senators for the provinces reads as under:- 

“In order to be a deputy it is necessary to have 

attained to the age of 25 years; to have been four 

years a fully qualified citizen; and to be a native of 

the province electing him or to have two years of 

immediate residence therein. 

Section 55 of the Japanese Constitution prescribes 

following conditions for the election of the Senators:- 

i) To have attained the age of 30 years, 

ii) To have been six years a citizen of the Nation, 

iii) To have an annual income of two thousand strong 

pesos or similar revenues, and 

iv) To be a native of the province electing him or to have 

two years of immediate residence therein. 

Section 34 of the Australian Constitution lays down the 

following qualifications of a Member of the House of 

Representatives: - 

i) He must be of the full age of twenty-one years, and 

must be an elector entitled to vote at the election of 

members of the House of Representatives, or a 

person qualifies to become such elector, and must 

have been for three years at the least a resident 

within the limits of the commonwealth as existing at 

the time when he was chosen; and


AND CMA NO. 994 TO 996 OF 2008 60 

ii) 

He must be a subject of the Queen, either naturalborn 

or for at least five years naturalized under a law 

of the United Kingdom, or of a colony which has 

become or becomes a State, or of the Commonwealth, 

or of a State. 

Article 66 of the Constitution of Bangladesh provides the 

following qualification and disqualification for election to 

Parliament:- 

i) A person shall subject to the provision of clause (2), 

be qualified to be elected as, and to be, a member of 

Parliament if he is a citizen of Bangladesh and has 

attained the age of twenty-five years. 

ii) A person shall be disqualified for election as, or for 

being, a member of Parliament who- 

(a) is declared by a competent court to be of 

unsound mind; 

(b) 

(c) 

is an undischarged insolvent; 

acquires the citizenship of, or affirms of 

acknowledges allegiance to, a foreign state. 

Article 64 of the Constitution of Belgium lays down the 

following qualifications:- 

i) To be eligible, one must: 

a) be Belgian; 

b) enjoy civil and political rights; 

c) have completed the age of twenty-one; 

and 

d) be legally resident in Belgium. 

ii) No other condition of eligibility can be required. 

Article 76 of the Constitution of Cambodia lays down the 

following qualification for membership of the Assembly:- 

The deputies shall be elected by a free, universal, 

equal, direct and secret ballot. The deputies may be 

re-elected Khmer citizens able to stand for election 

shall be the Khmer citizens of either sex who have 

the right to vote, at least 25 years of age, and who 

have Khmer nationalities at birth Preparation for the 

election, procedure and electoral process shall be 

determined by an Electoral Law. 

Section 30 of the Constitution of Denmark lays down the 

following qualification as Eligibility for Membership of the 

Parliament:- 

(1) Any person who has a right to vote at 

Parliament elections shall be eligible for 

membership of the Parliament, unless he has


AND CMA NO. 994 TO 996 OF 2008 61 

been convicted of an act which in the eyes of 

the public makes him unworthy of being a 

member of the Parliament. 

(2) Civil Servants who are elected members of the 

Parliament shall not require permission from 

the Government to accept their election. 

In France, under Article 25 of its Constitution, an Organic 

Act shall determine the term for which each assembly is 

elected, the number of its members, their emoluments, the 

conditions of eligibility and ineligibility and the offices 

incompatible with membership of the Assemblies. 

In Germany, under Article 38 of its Constitution, anyone 

who has attained the age of eighteen years is entitled to 

vote; anyone who has attained majority is eligible for 

election. 

In India, qualifications for membership of Parliament are 

provided in Article 84 of its Constitution, which reads as 

under:- 

A person shall not be qualified to be chosen to fill a 

seat in Parliament unless he:- 

(a) 

(b) 

(c) 

is a citizen of India, and makes and subscribes 

before some person authorized in that behalf by 

the Election Commission an Oath or affirmation 

according to the form set out for the purpose in 

the Third Schedule; 

is, in the case of a seat in the Council of States, 

not less than thirty years of age and, in the 

case of a seat in the House of the People, not 

less than twenty-five years of age; and 

possesses such other qualifications as may be 

prescribed in that behalf by or under any law 

made by Parliament. 

Article 62 and 63 of the Iranian Constitution which deals 

with the qualifications etc. of Membership in the Islamic 

Consultative Assembly reads as under:- 

62. The Islamic Consultative Assembly is 

constituted by the representatives of the people 

elected directly and by secret ballot. The 

qualifications of voters and candidates, as well 

as the nature of election, will be specified by 

law. 

63. The term of membership in the Islamic 

Consultative Assembly is four years. Elections 

for each term must take place before the end of


AND CMA NO. 994 TO 996 OF 2008 62 

the preceding term, so that the country is never 

without an Assembly. 

In Ireland, under Article 16 of its Constitution deal with 

the eligibility for membership of the House of 

Representatives, which is as under: - 

Every citizen without distinction of sex who has 

reached the age of twenty-one years, and who is not 

placed under disability or incapacity by this 

Constitution or by law, shall be eligible for 

membership of the House of Representatives. 

i) All citizens, and 

ii) Such other person in the State as may be 

determined by law, without distinction of sex 

who have reached the age of eighteen years who 

are not disqualified by law and comply with the 

provisions of the law relating to the election of 

members of the House of Representatives, shall 

have the right to vote at an election for 

members of the House of Representatives. 

Under Article 56 of the Italian Constitution, all persons 

who have reached the age of twenty five years on the day of 

the elections are eligible for membership. 

Under Article 82 of the Constitution of Kuwait a member of 

the National Assembly shall: - 

a) be a Kuwaiti by origin in accordance with law; 

b) be qualified as an elector in accordance with 

the electoral law; 

c) be not less than thirty calendar years of age on 

the day of election; 

d) be able to read and write Arabic well. 

In Namibia, the eligibility criteria for membership of 

National Assembly is expressed in negative terms, Article 

47 of its Constitution provides the following 

disqualification of members:- 

1. No persons may become members of the 

National Assembly if they: 

a) have at any time after Independence been 

convicted of any offence in Namibia, or 

outside Namibia if such conduct would 

have constituted an offence within 

Namibia, and for which they have been 

sentenced to death or to imprisonment of 

more than twelve months without the 

option of a fine, unless they have received


AND CMA NO. 994 TO 996 OF 2008 63 

a free pardon or unless such 

imprisonment has expired at least ten 

years before the date of their election; or 

b) have at any time prior to Independence 

been convicted of an offence, if such 

conduct would have constituted an 

offence within Namibia after 

Independence, and for which they have 

been sentenced to death or to 

imprisonment of more than twelve 

months without the option of a fine, 

unless they have received a free pardon or 

unless such imprisonment has expired at 

least ten years before the date of their 

election: provided that no person 

sentenced to death or imprisonment for 

acts committed in connection with the 

struggle for the independence of Namibia 

shall be disqualified under this paragraph 

from being elected as a member of the 

National Assembly; or 

c) are un-rehabilitated insolvents; or 

d) are of unsound mind and have been so 

declared by a competent Court; or 

e) are remunerated members of the public 

service of Namibia; or 

f) are members of the National council, 

Regional councils or Local Authorities. 

2. For the purpose of paragraph (1): 

a) no person shall be considered as having 

been convicted by any court until any 

appeal with might have been noted 

against the conviction or sentence has 

been determined, or the time for noting an 

appeal against such conviction has 

expired; 

b) the public service shall be deemed to 

include the defence force, the police force, 

the prison service, para-statal enterprises, 

Regional Councils and local authorities. 

In Nepal, under Article 47 of its Constitution, qualifications 

for membership of National Assembly are as under: - 

In order to become a member of parliament any 

person: 

(a) 

must be a citizen of Nepal;


AND CMA NO. 994 TO 996 OF 2008 64 

(b) 

(c) 

(d) 

must have attained twenty five years of age for 

the House of Representatives and thirty five 

years for the National Assembly; 

should not be disqualified under any law; and 

should not hold an office of profit. 

Explanation. – For the purpose of this sub-clause, 

“office of profit” means any position, other than a 

political position, to be filled by election or 

nomination for which a remuneration or economic 

benefit is paid out of a Government Fund. 

Under Article 56 of the Constitution of Netherlands, to be 

eligible for membership of the Parliament, a person must 

be a Dutch national, must have attained the age of 

eighteen years and must not have been disqualified from 

voting. 

Under Article 5 of the Constitution of Puerto Rico, No 

person shall be a member of the Legislative Assembly 

unless he is able to read and write the Spanish or English 

language and unless he is a citizen of the United States 

and of Puerto Rico and has resided in Puerto Rico at least 

two years immediately prior to the date of his election or 

appointment. No person shall be a member of the Senate 

who is not over thirty years of age, and no person shall be 

a member of the House of Representatives who is not over 

twenty-five years of age. 

Under Article 97 of the Constitution of Russia: - 

1) Any citizen of the Russian Federation aged 21 and 

older who has the right to take part in elections may 

be elected deputy to the State Duma. 

2) One and the same person may not concurrently be a 

deputy to the Federation Council and to the State 

Duma. A deputy to the State Duma may not be a 

deputy to any other representative body of State 

power or bodies of local self-government. 

Under Article 45 of the Constitution of Singapore: - 

1) Subject to this article, a person shall not be qualified 

to be a Member of Parliament who – 

a) is and has been found or declared to be of 

unsound mind; 

b) is an undischarged bankrupt; 

c) holds an office of profit; 

d) having been nominated for election to 

Parliament or the office of President of having 

acted as election agent to a person so


AND CMA NO. 994 TO 996 OF 2008 65 

nominated, has failed to lodge any return of 

election expenses required by law within the 

time and in the manner so required; 

e) has been convicted of an offence by a court of 

law in Singapore or Malaysia and sentenced to 

imprisonment for a term of not less than one 

year or to a fine of not less than $2,000 and 

has not received a free pardon: Provided that 

where the conviction is by a court of law in 

Malaysia, the person shall not be so 

disqualified unless the offence is also one 

which, had it been committed in Singapore, 

would have been punishable by a court of law 

in Singapore; 

f) has voluntarily acquired the citizenship of, or 

exercised rights of citizenship in, a foreign 

country or has made a declaration of allegiance 

to a foreign country; or 

g) is disqualified under any law relating to 

offenses in connection with elections to 

Parliament or the office of President by reason 

of having been convicted of such an offence or 

having in proceedings relating to such an 

election been proved guilty of an act 

constituting such an offence. 

2) The disqualification under any law relating to 

offenses in connection with elections to Parliament or 

the office of President by reason of having been 

convicted of such an offence or having in proceedings 

relating to such an election been proved guilty of an 

act constituting such an offence. 

Under Article 47 of the Constitution of South Africa; 

1) Every citizen who is qualified to vote for the National 

Assembly is eligible to be a member of the Assembly, 

excepta) 

anyone who is appointed by, or is in the service 

of, the State and receives remuneration for that 

appointment or service, other thani) 

the President, Deputy President, Ministers 

and Deputy Ministers; and 

ii) 

other office-bearers whose functions are 

compatible with the functions of a 

member of the Assembly, and have been 

declared compatible with those functions 

by national legislation; 

b) permanent delegates to the national Council of 

Provinces or members of a provincial legislature 

or a Municipal council; 

c) un-rehabilitated insolvents;


AND CMA NO. 994 TO 996 OF 2008 66 

d) anyone declared to be of unsound mind by a 

court of the Republic; or 

e) anyone who, after this section took effect, is 

convicted of an offence and sentenced to more 

than 12 months imprisonment without the 

option of a fine, either in the Republic, or 

outside the Republic if the conduct constituting 

the offence would have been an offence in the 

Republic, but no one may be regarded as 

having been sentenced until an appeal against 

the conviction or sentence has been 

determined, or until the time for an appeal has 

expired. A disqualification under this paragraph 

ends five years after the sentence has been 

completed. 

2. A person who is not eligible to be a member of the 

National Assembly in terms of sub-section (1)(a) or (b) 

may be a candidate for the Assembly, subject to any 

limits or conditions established by national 

legislation. 

3. A person loses membership of the National Assembly 

if that persona) 

ceases to be eligible; or 

b) is absent from the Assembly without 

permission in circumstances for which the 

rules and order of the Assembly prescribe loss 

of membership. 

4. Vacancies in the National Assembly must be filled in 

terms of national legislation. 

Under Article 41 of the Constitution of South Korea, 

1) The National Assembly is composed of members 

elected by universal, equal, direct, and secret ballot 

by the citizens. 

2) The number of members of the National Assembly is 

determined by law, but the number may not be less 

than 200. 

3) The constituencies of members of the National 

Assembly, proportional representation, and other 

matter pertaining to National Assembly elections are 

determined by law. 

Under Article 70 of the Constitution of Spain; 

1) The electoral law shall determine the reasons for 

ineligibility and incompatibility of Deputies and 

Senators, which shall include in any case: 

a) the member of the Constitutional Court; 

b) the high officers of the State Administration, as 

determined by law, with the exception of the 

members of the Government;


AND CMA NO. 994 TO 996 OF 2008 67 

c) the Defender of the People; 

d) the Magistrates, Judges, and Prosecutors on 

active duty; 

e) the professional military and members of the 

Armed Forces, Corps of Security, and police on 

active duty; and 

f) the members of the Electoral Commissions. 

2) The validity of the records and credentials of the 

members of both chambers shall be subject to 

judicial control under the terms to be established by 

the electoral law. 

Under Article 102 of the Constitution of Sri Lanka; 

1) Every person who is qualified to be an elector shall 

be qualified to be elected as a member of Parliament 

unless he is disqualified under the provisions of 

paragraphs (2) 

2) No person shall be qualified to be elected as a 

member of Parliament or to sit and vote in 

Parliamenta) 

if he is or becomes subject to any of the 

disqualification specified in Article 101; 

b) if he- 

i) stands nominated as a candidate for 

election for more than one electoral 

district at a General Election, 

ii) stands nominated as a candidate for 

election by more than one recognized 

political party or independent group in 

respect of any electoral district, 

iii) stands nominated as a candidate for 

election for an electoral district and before 

the conclusion of the election for that 

electoral district, stands nominated as a 

candidate for election for any other 

electoral district, 

iv) being a member of Parliament, except in 

the circumstances referred to in Article 

83(6) or Article stands nominated as a 

candidate for election for any electoral 

district; 

c) if he is the President of the Republic; 

d) if he is the Governor of a Region; 

e) if he is – 

i) a Judicial Officer, 

ii) the Parliamentary Commissioner for 

Administration (Ombudsman)


AND CMA NO. 994 TO 996 OF 2008 68 

iii) the Secretary General of Parliament or a 

member of his staff; 

iv) a member of the National Public Service 

Commission, or the finance Commission 

or the National Police Commission or a 

Regional Judicial Service commission or a 

Regional Public Service Commission or a 

Regional Police Commission; 

v) the Commissioner of Elections or a 

member of the Election Commission; 

vi) the Auditor-General 

vii) 

a public officer holding any office created 

prior to November 18, 1970 the initial of 

the salary scale of which was, on 

November 18, 1970, not less than 

Rs.6,720/- per annum or such other 

amount per annum as would, under any 

subsequent revision of salary scales, 

correspond to such initial; 

viii) a public officer holding any office created 

after November 18, 1970, the initial of the 

salary scale of which is, on the date of 

creation of that office, not less than the 

initial of the salary scales applicable, on 

that date, to an office referred to in item; 

ix) 

an officer in any public corporation 

holding any office created prior to 

November 18,1970, the initial of the 

salary scale of which was on November 

18, 1970, not less than Rs.7,200 per 

annum or such other amount per annum 

as would, under any subsequent revision 

of salary scales, correspond to such 

initial; 

x) an officer in any public corporation or of 

any regional Public service, holding any 

office created after November 18, 1970, 

the initial of the salary scale of which is, 

on the date of creation of that office, not 

less than the initial of the salary scale 

applicable on that date to an office 

referred to in item (ix) or such other 

amount per annum as would, under any 

subsequent revision of salary scales, 

correspond to the first mentioned initial; 

xi) 

a member of the Regular Force of the 

Army, Navy or Air Force; or a police officer


AND CMA NO. 994 TO 996 OF 2008 69 

or a public officer exercising police 

functions; 

f) If he has any such interest in any such contract 

made by or on behalf of the State or a public 

corporation as Parliament shall by law 

prescribe; 

g) If he is an undischarged bankrupt or insolvent, 

having being declared bankrupt or insolvent; 

h) If during the preceding seven years he has been 

adjudged by a competent court or by a Special 

Presidential Commission of Inquiry to have 

accepted a bribe or gratification offered with a 

view to influencing his judgment as a member 

of Parliament or as a view to influencing his 

judgment as a member of Parliament or as a 

member of the legislature prior to the 

commencement of the Constitution. 

Under Article 10 of the Constitution of Sweden, only a 

person who is qualified to vote can be a member of the 

Parliament or an alternate member of the Parliament. 

Under Article 75 of the Constitution of Switzerland, every 

lay Swiss citizen entitled to vote is eligible for membership 

of the National Council. 

Under Article 2 (2) of the Constitution of United States of 

America, no person shall be a Representative who shall not 

have attained to the age of twenty five years, and been 

seven years a citizen of the United States, and who shall 

not, when elected, be an inhabitant of that State in which 

he shall be chosen. 

41. The learned Attorney General further submitted that the 

impugned educational qualification was against the rights recognized 

by the United Nations in “The International Covenant on Civil and 

Political Rights” (Cases, Materials, and Commentary) by Sarah 

Joseph, Jenny Schultz and Melissa Castan, Second Edition (Oxford 

University Press). Article 25 thereof reads as under: - 

“Article 25


AND CMA NO. 994 TO 996 OF 2008 70 

Every citizen shall have the right and the opportunity, 

without any of the distinctions mentioned in article 2 and 

without unreasonable restrictions: - 

(a) 

(b) 

(c) 

To take part in the conduct of public affairs, directly 

or through freely chosen representatives; 

To vote and to be elected at genuine periodic 

elections which shall be by universal and equal 

suffrage and shall be held by secret ballot, 

guaranteeing the free expression of the will of the 

electors; 

To have access, on general terms of equality, to 

public service in his country. 

The above clause (b) of Article 25 enshrines the right to 

stand for election. It may be advantageous to reproduce 

below the General Comment 25 given at page 663 ibid, 

which reads as under:- 

The effective implementation of the right and the 

opportunity to stand for elective office ensures that 

persons entitled to vote have a free choice of 

candidates. Any restrictions on the right to stand for 

election, such as minimum age, must be justifiable 

on objective and reasonable criteria. Persons who are 

otherwise eligible to stand for election should not be 

excluded by unreasonable or discriminatory 

requirements such as education, residence or 

descent, or by reason of political affiliation. No 

person should suffer discrimination or disadvantage 

of any kind because of that person’s candidacy. 

States parties should indicate and explain the 

legislative provisions which exclude any group or 

category of persons from elective office. 

42. The learned Attorney General next contended that that the 

impugned educational qualification was also against the United 

Nations Universal Declaration of Human Rights, Article 21 whereof is 

reproduced below: - 

“Article 21 

1. Everyone has the right to take part in the 

government of his country, directly or through 

freely chosen representatives. 

2. Everyone has the right of equal access to public 

service in his country.


AND CMA NO. 994 TO 996 OF 2008 71 

3. The will of the people shall be the basis of the 

authority of government; this will shall be 

expressed in periodic and genuine elections 

which shall be universal and equal suffrage and 

shall be held by secret vote or by equivalent free 

voting procedures.” 

43. He also referred to the article titled “B.A. Or Be Out” by 

Mr. Mohammad Akram Sheikh, a Senior Advocate of this Court, who 

had dilated upon the issue from different perspectives. Regarding 

‘Education and Eligibility’ he surveyed educational qualification 

required for membership of Parliaments in different countries of the 

world. He noted restrictions of formal education as under: - 

“In Cameron, a person seeking membership of the National 

Assembly should be able to read and write French or 

English; in Costa Rica one should only be able to read and 

write; in Egypt a person seeking election to peoples 

Assembly must be “literate”; in Indonesia, however, 

requires a Secondary School or equivalent qualifications 

from Members of the House of Representatives. In Ireland, 

candidates selected from a panel must have knowledge and 

experience relevant to the Panel form Chambers of 

Deputies and senate; in Jordan, a senator must also be a 

prominent person who has rendered “service to the 

nation”. For the National Assembly of Kenya “literate in 

Swahili and English” qualifies to be elected, in Kuwait the 

requirement is that a member should be literate in Arabic, 

in Lebanon the member of the National Assembly has to be 

able to read and speak English; Malaysia does not require 

any formal education and one has only to be literate to be 

elected to the Senate and House of Representatives. In Mal 

one who is able to read and write French can become 

member of the National Assembly while Mauritius requires 

“competence in written and spoken English” Philippines 

National Assembly requires its members to read and write. 

Rwanda National Development Council demands 

qualification of “at least 4 years of secondary studies”. In 

St. Vincent ability to speak and write English is considered 

sufficient to stand for House of Assembly; Syrian Arab 

Republic also requires members to be “literate” Thailand 

does not require any qualification from Thai born 

candidates but those with alien father must have at least 

Thai Secondary Education or a University Degree. 

For the National Assembly of Uganda 4 years of Senior 

Secondary School or equivalent qualifications are


AND CMA NO. 994 TO 996 OF 2008 72 

considered sufficient. None of the former Soviet Union 

Countries, now C.I.S, require any education qualification 

whatsoever. The British parliament, which claims to be 

mother of all Parliaments, does not require its members to 

have any educational qualification whatsoever nor des the 

US Congress or Senate require its members to come armed 

with formal education. In Zaire, 4 years post Primary 

Education or adequate political or administrative 

experience is good enough for members of Legislative 

Council, and in Zambia and Zimbabwe to be able to read 

and write English are considered sufficient. All other 

countries, which do not find mention in the preceding 

paragraphs, do not demand any requirement of formal or 

informal educational qualifications. It may be interesting to 

note that even Sri Lanka where majority part of its 

population comprises formal graduates has not thought it 

proper to impose restriction of formal education. The logic 

is simple; every elector, as far as possible, should be able 

to become a candidate and offer himself to be chosen as a 

representative.” 

The learned Attorney General next referred to an Article entitled “A 

facility for fraud” by I.A. Rehman published in the Daily Dawn of 

October 04, 2007. The Article opens with the following remarks:- 

“As the life of the National Assembly born in 2002 comes to 

a close, a review of its performance is in order. This 

Assembly, the more powerful of the two Houses of 

parliament, was born with a disability. The condition that 

only graduates were eligible to sit in it had eroded its 

representative character. Besides, this condition proved to 

be a facility for fraud and subversive of representative rule 

and justice both.” 

The author of the article has taken the view that the elected 

representatives are not expected to be experts who can be hired from 

the market; they are only required to be aware of their electors’ needs 

and aspirations. Anyone qualified to vote can be a candidate for 

elective office subject only to restrictions of age. Specific to the 

requirements of B.A. Degree, the author has made the following 

comments:-


AND CMA NO. 994 TO 996 OF 2008 73 

“The BA degree does not make anyone an expert. Most 

graduates in Pakistan know less of life and the world than 

a hari or a cobbler or a factory worker, and their false 

notions of superiority over the illiterates prevents them 

from appreciating the reality, except for their limited 

bread-and butter concerns. Experience of the 2002-2007 

parliament does not show that its members proved to be 

any better upholders of democratic, responsible rule than 

their less academically qualified predecessors, or even 

more efficient in a technical, purely clerical sense. 

Above all, the graduation condition opened the way to 

corruption and crime. Court records confirm many 

politicians’ efforts at buying and forging degrees. And the 

scheme to admit madressah certificates as graduation 

degrees led to perhaps the greatest electoral fraud in the 

subcontinent’s history. The deception was detected within 

months of the 2002 polls, but the huge wrong has not 

been remedied to this day. The story of this case made the 

argument for abolishing the degree condition 

incontrovertible.” 

44. The learned counsel for the petitioners and the learned 

Attorney General for Pakistan contended that by the impugned 

educational qualification doors were shut on the non-graduates and 

overwhelming majority of the population was deprived of their right to 

contest election and to acquire political authority and participate in 

the affairs of the country. He brought to our attention the data 

furnished by NADRA, which showed that out of more than 62.4 

million computerized National Identity Cards, the number of 

registered graduates was only 2,545,448. The area-wise breakup is as 

under: -


AND CMA NO. 994 TO 996 OF 2008 74 

Area 

Registered 

Graduates 

NWFP 234,030 

FATA 10,274 

PUNJAB 1,218,115 

SINDH 887,382 

Balochistan 887,382 

ISLAMBAD 73,327 

FANA 12,107 

AJK 52,286 

TOTAL 2,545,448 

The learned Attorney General submitted that as per Population 

Census – 1998, approximate population of the country was 160 

million, the number of registered voters was 61.8 million while the 

number of registered graduates was 2,545,448, which was only 1.6% 

of the total population and only 4.1% of the registered voters. As per 

record of the Higher Education Commission, the estimated provincewise 

number of graduates is as under: - 

Province/Area Graduates 

(Estimated) 

Punjab 1,731,600 

Sindh 1,178,166 

NWFP 609,926 

Balochistan 139,425 

Federal Area 524,225 

AJK 57,658 

TOTAL 4,241,000 

As per these figures, only 2.6 per cent of the population and 6.9 per 

cent of the registered voters are graduates. These graduates include 

persons in the service of Pakistan, who do not have the right to 

contest election under Article 17 of the Constitution. 

45. The learned Attorney General for Pakistan submitted that 

nowhere in the world any restriction regarding educational


AND CMA NO. 994 TO 996 OF 2008 75 

qualification to contest election existed and Pakistan was the only 

country where such restriction was imposed. As against this, 

Mr.Khaki took the plea that the Constitutions of other countries were 

not relevant because our Constitution and culture were unique. The 

Sub-Continent was partitioned on the basis of two-nation theory 

giving birth to two independent states, one based on the Islamic 

Ideology and the other professing Hindu religion and culture, i.e. one 

Islamic State and the other a Hindu State. The learned Attorney 

General submitted that it was not the question of logic of the law, 

which this Court could not go into. However, a law would be struck 

down if it placed unreasonable restriction on the fundamental rights 

as guaranteed by the Constitution. In Javed Jabbar’s case, Article 8- 

AA of the Chief Executive’s Order No. 7 of 2002 was struck down on 

the ground of being unreasonable. 

46. In conclusion, it may be stated that subject to reasonable 

restrictions imposed by law, the fundamental right enshrined in 

Article 17(2) of the Constitution to form or be a member of a political 

party extends to formation of the government and contesting of 

election as held by this Court in the cases of Benazir Bhutto and 

Muhammad Nawaz Sharif (supra) provided that a person fulfils the 

qualifications laid down by or under Article 62 of the Constitution 

and does not suffer from the disqualifications provided by or under 

Article 63 of the Constitution (PML (Q)’s case). There are two types of 

qualifications and disqualifications, some of which are mentioned in 

the Constitution itself (Articles 62 and 63) and the others provided by 

law in pursuance of Clauses (i) and (s) of Articles 62 and 63


AND CMA NO. 994 TO 996 OF 2008 76 

respectively. While the qualifications and disqualifications mentioned 

in Articles 62 and 63 of the Constitution are immune from scrutiny 

by the Superior Courts in the exercise of their power of judicial 

review, the statutory qualifications and disqualifications are liable to 

be tested on the touchstone of the provisions of the Constitution. 

47. Having considered the connotations of the phrase 

“reasonable restriction” in the context of enforcement of fundamental 

rights, we hold that the impugned graduation qualification offended 

Articles 17 and 25 of the Constitution for various reasons: firstly, it 

was not called for in the interest of sovereignty or integrity of Pakistan 

or public order in terms of Article 17(2); secondly, it did not take into 

consideration social and economic conditions of Pakistan and their 

impact on the people; thirdly, a vast majority of the population was 

deprived of their cherished right of franchise. It may be observed that 

with the exception of requirement of elementary education, or the 

ability to read and write, the educational qualification as a condition 

for contesting election is not in vogue in other countries of the world. 

Moreover, it is against the principles recognized by the United Nations 

in its different charters. The Constitution was held in abeyance at the 

time the PML (Q)’s case was decided. No authentic data was placed 

before the Court to show the lack of educational facilities in the farflung 

areas like PATA, FATA and Balochistan. 

47. The classification based on educational qualification for 

contesting election is unreasonable inasmuch as at the most 2.6 % of 

the population and 6.9 % of the registered voters were allowed to 

contest the election while more than 93 % of the registered voters


AND CMA NO. 994 TO 996 OF 2008 77 

were disenfranchised, which is against the spirit of democracy. These 

figures are based on the record of the Higher Education Commission, 

while according to the NADRA data, the percentage is even lesser, 

according to which the number of graduate citizens is only 1.6% of 

the total population and 4.1% of the registered voters. The literacy 

rate in the country is just 35 %, which also includes the persons who 

can read, write or just sign. The acquiring of education is dependent 

upon the physical conditions and the milieu in which a person may 

find himself. There is a sharp difference between rural and urban 

literacy rate. The urban population has always an upper hand in the 

sphere of education. In this behalf, reference was made to Article 37 

of the Constitution under which the State was required to promote 

with special care the educational and economic interests of backward 

classes or areas, remove illiteracy and provide free and compulsory 

secondary education within minimum possible period. According to 

the learned counsel, the State has not fulfilled its obligation of 

imparting education to all its citizens. The minimum age of a voter 

has been fixed at 18 years. There is no criterion in terms of education 

for a voter. Thus, the person who has a right to vote has no right to 

contest election. A vast majority of the population has been rendered 

ineligible to contest election through an unjust and unconstitutional 

requirement of educational qualification. In the circumstances, the 

impugned educational qualification is neither a reasonable restriction 

nor a reasonable classification within the contemplation of Articles 17 

and 25 of the Constitution and the same is declared to be void.


AND CMA NO. 994 TO 996 OF 2008 78 

48. Above are the reasons for the Short Order dated 

21.4.2008, whereby the petitions were disposed of in the following 

terms: - 

“For reasons to be recorded later, this Petition under 

Article 184(3) of the Constitution of the Islamic Republic of 

Pakistan, 1973 is allowed. The provisions of Article 8-A of 

the Conduct of General Election Order, 2002 (Chief 

Executive’s Order No. 7 of 2002) and clause (cc) of 

subsection (1) of section 99 of the Representation of the 

People Act, 1976, which lay down that a person shall not 

be qualified to be elected or chosen as a member of Majlise-Shoora 

(Parliament) or a Provincial Assembly unless he 

is at least a graduate possessing a bachelor degree in any 

discipline or any degree recognized as equivalent by the 

University Grants Commission under the University 

Grants Commission Act, 1974 or any other law for the 

time being in force are declared to be void prospectively on 

account of their being inconsistent with Articles 17 and 25 

of the Constitution.” 

Chief Justice 

Judge 

Judge 

Judge 

Judge 

Judge 

Judge 

ISLAMABAD 

21 April 2008 

APPROVED FOR REPORTING 

CHIEF JUSTICE

MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

Create successful ePaper yourself

Delete template?

Save as template?