P L D 1958 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This appeal, by special leave, arises from a judgment of a Division Bench of the High Court of West Pakistan at Lahore. Elections to the District Board of Lyallpur were held on 17th, 18th and 19th February 1957. After the result of these elections was notified, 51 petitions by different parties were presented to the High Court calling in question the validity of the elections on different grounds. While arguments in those petitions were being heard by a Division Bench, one more petition was presented by Begum Zohra Parween and six others in which the point was raised, not taken in the other petitions, that the elections were invalid on the ground that the formation of electoral circles, from which the successful candidates had been returned, was in contra vention of the fundamental right created by Article 5 of the Constitution. As this objection went to the root of the whole matter, the Bench heard arguments on that question, with the reservation that if necessary the points raised in the other petitions would be considered later. After hearing full arguments the Bench allowed Zohra Parween's petition, holding that the electoral circles from which candidate respondents had been returned were consti tutionally invalid. Accordingly directions were issued restraining the Province of West Pakistan, the Returning Officer, the Elections Officer and the Deputy Commissioner, who were all respondents to the petition, from giving effect to the results of the elections, and the returned candidates from functioning as members of the District Board. The present appeal is by Ata Elahi, one of the returned candi dates, and the respondents to the appeal are the aforesaid public officers and all the returned candidates with the exception of one who has since died. Mr. Chundrigar has argued the case for the appellant and he has been supported by the Advocate‑General, who has appeared for the Province of West Pakistan and the Public Officers restrained. Mr. Mahmud Ali has represented the contest ing respondents, namely, Begum Zohra Parween and the other ladies, who were petitioners in the High Court. The controversy centres round the question whether the District Board Lyallpur (Electoral) Rules, 1955, under which elections were held are in violation of the equality provision in Article 5 of the Constitution. To approach the question raised it is necessary to set out the constitutional position as to which there is no dispute. Under Article 143, "A person shall be entitled to be an elector in a constituency (for the National Assembly or a Provincial Assembly) if‑ (a) he is a citizen of Pakistan ; (b) he is not less than twenty‑one years of age on the first day of January in the year in which the preparation or revision of the electoral roll commences ; (c) he is not declared by a competent Court to be of unsound mind; (d) he has been resident in the constituency for a period of not less than six months immediately preceding the first day of January in the year in which the preparation or revision of the electoral roll commences; (e) he is not subject to any disqualification imposed by the Constitution or Act of Parliament".' The pronoun `he' in this Article has for its antecedent the noun `person', which means a human being, male or female. Under the h Constitution there are 300 seats for the National and an equal number of seats for either Provincial Assembly. The electorate for all these eats is mixed, in the sense that men as well as women are entitled to vote. Besides these seats there are 10 seats in the National and 10 in either Provincial Assembly reserved for women, and for elections to these seats only women are entitled to vote. This franchise, it may once more be mentioned, relates only to elections to Parliament and both the Provincial Assemblies. For the franchise for elections to local bodies like Corpora tions, Municipalities and District Boards etc. there is no provision in the Constitution. Entry 15 in the Provincial List of the Fifth Schedule to the Constitution relates to Local Government and empowers the Legislature of a Province to make laws on that subject which includes the constitution and powers, inter alia, of District Boards. Thus it is for the Provincial Legislature to provide by law how District Boards are to be constituted and what their powers are. The District Boards Act in force at present is the Punjab District Boards Act (XX of 1883), S. 11 of which is as follows :‑

"11 (1) A District Board or Local Board shall consist of such number of members, not less than six, as the Provincial Govern ment may fix in this behalf. (2) The members may be appointed by the Provincial Govern ment either by name or by official designation or may be elected in accordance with rules made by the Provincial Govern ment under this Act, or some may be appointed and some elected as the Provincial Government directs." This section was amended by the Punjab District Boards (Amend ment) Act (II of 1950), section 2 of which substituted for section 11 of the original Act the following:‑

" 11 (1) A District Board shall consist of such number of members as the Provincial Government may from time to time, by notification, direct. (2) All members of every District Board shall be elected in accordance with the rules made under this Act". The amending Act was to come into force on such day as the Provincial Government may, by notification in the Official Gazette, appoint in this behalf' but no such date has as yet been fixed. Under S. 55 of the Act the Provincial Government may, by notification, for any District or Local Board or any class of such Boards make rules for:‑

"(d) determining the mode and time of appointment or election of members of Boards . . . . . and the qualifications and disqualifications of such members, and the qualifications and disqualifi cations of voters, and generally for regulating all elections under this Act". In exercise of the powers conferred by this section the Provincial Government, by Notification No. 11010‑B&C 51/1550, dated the 3rd March 1952, published in the Punjab Gazette dated the 28th March 1952, promulgated the District Board Election Rules, 1952, Rule 6 of which is as follows :‑

. 6. "Qualification of voters‑ A person shall be entitled to be registered as an elector if he or she‑ (a) is a citizen of Pakistan or the ruler or ,subject of a federated State ; (b) has on the first day of January immediately preceding the preparation of the electoral roll attained the age of 21 years ; (c) has not been adjudged by a competent Court to be of unsound mind; and (d) resides or carries on business within the District Board area and has completed a period of twelve months on the first day of January immediately preceding the date of the prepa ration of the electoral roll in respect of such business or residence. Explanation

‑For the purposes of clause (d) a person may also be presumed to reside in a constituency if he owns land or residential house or a share in residential house in the consti tuency, provided that the house has, during the twelve months preceding the first day of January, not been let on rent either in whole or in part". These Rules contained no provision fixing the number of persons to be elected to the District Board of Lyallpur or delimiting the constituencies from which they were to be elected. In 1955 the Provincial Government, by Notification No. 7147‑B & C‑55/ 46170 published in the Punjab Gazette dated the 5th August 1955, promulgated the District Board Lyallpur (Electoral) Rules, 1955. By Rule 2 of these Rules "for the purposes of election to the District Board Lyallpur, the electorate in the District Board area shall be divided into three classes, that is to say :‑

(a) Class I ... Muslims (Men). (b) Class II ... Women (Muslims and Minorities). (c) Class III ... Minorities (Men).

3. For Class I of the electorate there shall be 82 representa tives ; For class II of the electorate there shall be 3 representatives ; For class III of the electorate there shall be 2 representatives ; (4) For class I of the electorate, one member shall be elected for each electoral circle as specified in Schedule `A' by the registered electors of that circle. (5) For class II of the electorate, one member shall be elected for each electoral circle as specified in Schedule `B' by the registered electors of that circle. (6) For class III of the electorate, one member shall be elected for each electoral circle as specified in Schedule `C' by the registered electors of that circle". The Rules purported to have been made "in exercise of the powers conferred by S. 55 of the Punjab District Boards Act, 1883, and with reference to the Punjab Government Notification No. 4325‑B&C‑55/26726, dated the 2nd May, 1955". A perusal of the Schedules to these Rules shows that for each of the three classes the whole district was divided into as many electoral circles as the number of representatives for that class. The circles for Muslim men were, therefore, much smaller, each including all or some revenue estates of a zail, than the circles for class II, which divided the whole district in three constituencies or for class III which divided the entire district in only two constituencies. It has not been argued before us that, to avoid a charge of dis crimination, these Rules should not have divided the electorate between Muslims and non‑Muslims or that they should not have mixed Muslim and non‑Muslim women. What is contended is that electoral circles for men and women should have been not separate but mixed to enable both sexes to vote in the same electoral circle and that the entire body of women should not have been put together in three large single‑member electoral circles which, keeping in view women's voting strength in the district, were too few as compared with the number of circles for Muslim Men, The registered male voters in the whole district number 6,23,127 while the number of women voters is 2,94,906, and whereas 84 seats have been assigned to Muslim men, the number of seats allotted to women is only three. These inequalities between men and women voters are alleged to constitute an infringement of the fundamental right that all citizens are equal before law and are entitled to equal protection of law. In order to seek a correct answer to this question, it is necessary to examine the legal position that governs the franchise for District Board elections. Section 11, as it stands, clearly permits the Provincial Govern ment to discriminate in a sense not only between one District Board and another but also in the constitution of the District Board for the same district, for while that Government may nominate members to Boards in some districts it may order election for Boards in the other districts, and for the same district while it may nominate some members it may direct other members to be elected. The section does not say that all members of a District Board shall be elected, and since it permits nomination it must follow a fortiori that while ordering elections the Provincial Govern ment may direct that elections shall take place on a community basis or on the basis of sex. The Government may even nominate] and the nominees may belong to any community or either sex. If all this is permissible under the Act, we cannot see how objection can be taken to the present arrangements, where separate consti tuencies for Muslim and non‑Muslim men on the one hand and for women of all communities on the other have been formed. At no stage of the arguments was it suggested, and it has not been argued before us, that S. 11 which empowers the Provincial Government to observe discrimination in the constitution of the District Boards is ultra vires the Constitution because of Article 5 of the Constitution, and if the arrangements for the constitution of the District Board to which objection has been taken are within the powers given to the Provincial Government by the Act, and no objection is taken to S. 11 on the ground of ultra vires, it is difficult to see how Article 5 can be invoked to invalidate the arrangements which are within the letter and the spirit of the Statute. The fact that women have not been given seats in accordance with their population or that they have not been given the right to vote in men's constituencies, or that women's consti tuencies are larger, so long as these matters are within the Act the constitutionality of which is not questioned, may expose the Government's action to public criticism, but it can provide no legal ground for attack and the remedy of the parties who feel aggrieved is to appeal to the Provincial Government or the Legislature for remedial measures and not to ask the Court to declare the Rules to be invalid on the ground of discrimination, because in making them the Government has obviously proceeded on some principle and if it be held that there is a sound underlying principle, the edifice based on it cannot be pulled down merely on the ground that it has been built on considerations of sex or religion. It has been pointed out above that though S. 11 of the District Boards Act is ex facie discriminatory, its constitutionality on that ground has not been called in question. The precise argument addressed to us is that since Rule 6 of the 1952 Rules framed under that section gives an equal right to vote to all adults whether Muslims or non‑Muslims, men or women, the Rule itself is not discriminatory but fair, impartial and reasonable even though the section under which it was made might have been open to discriminatory application, and that discrimination has in fact been brought about by the 1955 Rules by which equality of the right of voting has been seriously affected by refusing to women the right to vote in 84 constituencies as against a similar refusal to men in only 3 constituencies. The weight of a woman's vote is thus alleged to have been unjustifiably reduced and women have further been subjected to the disadvantage of fighting elections in comparatively larger constituencies. Thus the broad question presented is whether women could constitutionally be disqualified to vote at the District Board elections because if the answer to this question be in the affirmative, the 1955 Rules which do not have the effect of disqualifying women altogether but merely reduce the weight of their vote must be held to be constitutionally valid. This question we may now approach. While the Constitution defines the qualifications for the: franchise for elections to Parliament and the Provincial Assemblies, it leaves to the Provincial Legislature to determine the qualifications or disqualifications of voters for the District Board elections. This position is similar to that obtaining in the United States where the Constitution itself does not define the qualifica tions of voters for elections to the Congress and leaves each State free, subject to the supervisory jurisdiction of the Congress, to make laws defining the qualifications of voters, the exact constitu tional provision being :‑-- " Section 4 (I) (Art. I).‑The times, places and manner of holding elections for senators and representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations". This power of the States has from time to time been restricted by the amendments to the Constitution. The first of these is the fourteenth Amendment, declared in force on July 28, 1868, which provides; "all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law". The next is the Fifteenth Amendment, declared in force on March 30 1870 which says: "the right of al citizen of the United States to vote shall not be denied orb abridged by the United States or by any State on the ground of race, colour or previous servitude". The last is the Nineteen Amendment, declared in force on August 26, 1920, which states:-- "the right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any State on the ground of sex". In making laws regulating the qualifications of voters, the State Legislature is subject to the restrictions imposed by‑ the aforesaid three amendments. It must not, therefore, infringe any of these amendments in making a law. Thus while the right to vote in the States comes from the States, the right to exemption from the prohibited discrimination on the ground of race, colour, previous servitude, sex or any other ground comes from the United States Constitution. The position is thus stated by Willis at page 193 of the 1936 Edition of his "Constitutional Law" :--‑ " Suffrage is not a privilege of United States citizenship. Neither the Fourteenth nor the Fifteenth nor the Nineteenth. Amendment confers such a privilege. All that the Fifteenth Amendment does is to grant an immunity against discrimination on account of race, colour, or previous condition of servitude, and all that the Nineteenth Amendment does is to grant an immunity against discrimination on account of sex. The Fourteenth Amendment protects against the abridgment of privileges and immunities and guarantees equality, but these do not prevent qualification for suffrage. Suffrage, therefore, is subject to state regulation. Qualifications for voting are legal, though they disfranchise the negro from voting, if they are not discriminatory". Mr. Brohi has argued that after the Fifteenth Amendment the question of discrimination in the right to vote must be decided solely with reference to the provisions of that amendment or of the Nineteenth Amendment and not with reference to the prohibition against discrimination contained in the Fourteenth Amendment. But in this he is not right because the Fifteenth Amendment is merely an application of the equality rule of the Fourteenth Amendment and even if the Fifteenth Amendment had not been enacted there can be no doubt that discrimination on some of the grounds mentioned in that amendment would have been held invalid under the Fourteenth Amendment. In fact this precise question appears to have been raised and decided against Mr. Brohi's contention. Some southern States while testing out the prohibitions of the Federal Constitution undertook to disfranchise the Negroes and some whites on some other basis. The Supreme Court could have nullified such action under the Fifteenth Amendment, which very clearly protects the negroes' political right to vote, but it preferred to decide the question under the equality clause of the Fourteenth Amendment, and by so doing very clearly extended the protection of the equality clause to the protection of political rights of the coloured races vide Nixon v. Herndon ((1927) 273 U S 536) and Nixon v. Condon ((1932) 286 U S 73). As now understood the Fourteenth Amendment protects not only civil rights but also political rights and governs the conferment of privileges as well as the imposition of liabilities. It will therefore be seen that in Pakistan the position as regards the Provincial Legislature's power to make laws relating to the qualifications of voters at the District Board elections in analogous to the States' power to determine the mode of election to the State and the House of Representatives as it existed before the Fifteenth and the Nineteenth Amendment. It is for the Provincial Legislature to make laws conferring the franchise for District Board elections, but this power is subject to the restriction in the equality provision of the 5th Article just as in the United States before the Fifteenth and the Nineteenth Amendment it was for the States to define t he qualifications of voters, but this power was subject to the limitation imposed by the Fourteenth Amendment which corresponds to our Article

5. The issue, therefore, is narrowed down to, whether the Provincial

Legislature by law, or the Provincial Government in exercise of the powers given to it by the law, could disfranchise women for District Board elections, without violating Article 5 of the Constitution, because if the Provincial Legislature or the Provincial Government could without infringing that Article make such a law, it must follow a fortiori that women's right to vote could validly be restricted or controlled. In the United States discrimination in the right to vote on the ground of religion would undoubtedly be struck out, and it is a question, though not presented to us by counsel for the contesting respondents, whether the distinction between Muslim and non‑Muslim voters which the Lyallpur District Board Rules of 1955 observe is also against the mandate of Article

5. This dis crimination may perhaps be justified, though we express no final opinion on that point, on the ground that, provided on the strength of their population the. non‑Muslims are given seats in proportion to their number in the population but are required to vote for non‑Muslim candidates only, the arrangements amount to a reasonable classification. In the case of franchise for the National Assembly and the Provincial Assemblies there is a specific provision in the Constitution by which Parliament may make a law electing to adopt the principle of joint electorate or separate electorate. There is, however,. no such provision in regard to the District Board elections, rules relating to which can validly be made only if they do not offend against the equality provision of the 5th Article. Discrimination on the ground of religion has not been the subject matter of arguments before us but there can be no doubt that if the stand taken by the learned counsel for the contesting respondents is correct the question may present itself squarely and will depend for decision on the other question, whether the discrimination in the circumstances can or cannot be supported as being reasonable. Mr. Mahmud Ali chiefly relies on Rule 6 of the 1952 Rules, but he admits that that Rule can at any time be modified in exercise of the powers conferred on the Provincial‑--Government by S. 55, and if the Government does make a rule disfranchising women for District Board elections, the question will arise directly whether such disfranchisement is contrary to the immunity from discrimination guaranteed by Article

5. If on any such case arising it could be shown that there is a reasonable basis for such disfranchisement or that the discrimination between men and women in the conferment of the right to vote has a reasonable basis, the 1955 Rules which sanction such discrimination, though to a lesser extent, will have to be held to be valid. This, therefore, is the real issue in this case. If the 1938 Rules, which denied to women the right to vote, had not been replaced by the 1952 Rules, the position would have been the same as, in England before 1928 or in the United States of America before 1920, when franchise was granted to women in these countries in respect of election to the legislature. Even now, according to Mr. Brohi, there are about 15 countries in the world which do not give the right to vote to women and an advanced country like Switzerland is one of them. Of course in the Middle East most of the Muslim countries still deny franchise to women. The history of the gradual grant of franchise to women shows that while in some countries women enjoyed equal rights with men in this matter, being both eligible and having .the right to vote, in others they had tile right to vote without being eligible or ‑were eligible without having the right to vote and the age at which they became entitled to vote or eligible varied from 21 to

35. In the United States of America where the States had the power legally to refuse the franchise, sex, like minority, illiteracy, lack of minimum education and non‑taxability, was one of the reasons for which franchise was denied. The report of Chorlton v. Lings ((1868) IV Law Reports, Court of Common Pleas, 374), which was the test case in England to obtain a judicial verdict about women's capacity or incapacity to vote, shows that women were, under the common law, incompetent to vote and that the Representation of the People Act, 1867, re cognized this incompetency and did not grant to them the right to vote. In the United States the corresponding case was Minor v. Reese Happerser ((1874) United States Supreme Court Reports, 22 Lawyers Edition, 627) in which the right to vote was claimed on the basis of the Fourteenth Amendment to the Constitution which contained the equality clause like our Article 5 on which the claim is founded in the present case. The Court held that suffrage was not one of the necessary privileges of a citizen of the United States and that the Fourteenth Amendment had not added to the privileges and immunities of a citizen. The Court further ruled that a State Government remained republican in form, notwithstanding women were tot voters. One interesting feature of this case is that though the Fourteenth Amendment provided that all citizens of the United States were entitled to equal protection of the law just as our Article 5 states that all citizens are equal before the law and entitled to equal protection of the law, nobody thought of founding the right to vote on the equality provision of that amendment. It is only because the scope of the Fourteenth Amendment was subsequently held to include cases which were not within the contemplation of the authors of the amendment or the citizens of the United States when that Amendment was made that the equality provision began to be relied on in the manner in which it is being invoked in the present case. It is unnecessary to guess or examine the reasons which subjected women to legal incapacity in the matter of franchise before the adoption by the U. N. O. on 10th December, 1948, of that clause of the Human Rights Charter which recommended to the member‑States to grant to both sexes equality of the right to vote. Since the fall of Adam conflicting views have been held about the position of women in human society. While there have been communities which treated their women as mere chattel, there have been others which had the highest feelings of respect and veneration for their women and whose love inspired men to highest deeds of valour, heroism and self‑sacrifice. Despite such feelings, however, they never associated women in their political affairs, on the theory that women could not take part in political matters except when they happened to be reigning queens. As pointed out in Chorlton v. Dings the exemption from political responsibility was based not so much on want or inferiority of intellect in women as on the respect due to the female sex and a sense of decorum. For the same reason women were exempt from bearing arms and were never included in the order of knighthood. The grounds given in England for refusing the right of vote to women' varied from lack of judgment and independence to an apprehension that women might form a party of their own in Parliament. The women of that country had to go through a protracted struggle, interspersed with amusing incidents and involving mud‑marches; militant tactics, hunger strikes and forcible feeding and a game of hide and seek with the Cat and Mouse Act until by their work during the world war they con vinced their countrymen that they could share the national burden as heroically as men. In the United States of America the tactics adopted by the suffragettes were different. The work of American women during the war was as magnificent as of their sisters in England. But it was by securing franchise for State elections through speech and propaganda for over fifty years that they succeeded in converting the Congress to their view to give them the Nineteenth Amendment which put them on par with the male sex in the matter of franchise. If the Fatwa of 1st June, 1952, issued by the Al Azhar University in Cairo correctly represents the position, the reason for not granting franchise to women in Muslim countries is that women are likely to be swayed more by emotions than men and that their judgment is unstable. Other reasons given therein are that if women are allowed to vote they will have to attend public meetings, speech in public and engage themselves in constant journeys which would be unseemly and un dignified and that their right to participate in political processes is thus inconsistent with the theory of the Islamic Law. Mr. Brohi differs from this Fatwa and we have our own views on the subject, and this opinion is being mentioned merely to show that there may perhaps be found amongst Muslims of this country a substantial proportion of men who hold the same views about women as expressed by the Ulema of Al Azhar. In considering the grant of franchise to women for elections to Local Bodies in this country the relevant factors are:‑ (1) that as compared with men rural women in Pakistan are less educated and more ignorant and illiterate ; (2) that they lack independence of judgment in exercising the right to vote and that a vote for a woman means a second vote for the husband, father, brother or son ; (3) that they have little knowledge of the functions and working of the local bodies ; (4) that social customs prohibit them from mixing with man and consequently from canvassing and being canvassed b men ; and (5) that deep rooted prejudices disable them from appearing at election meetings or voting in mixed constituencies. If keeping in view these factors the Provincial Government had kept alive the 1933 Rules refusing to women the right to vote, it could not possibly have been said that the classification made by the Provincial Government in granting or withholding the right to vote had no basis in history, ideology or reason or that the classification was arbitrary, fanciful or unreasonable. Those Rules could well have been defended as not being i violation of Article 5 of the Constitution, because of the reason ableness of the classification. Mr. Brohi has urged that because in the Constitution franchise for elections to the National and the Provincial Assemblies has been granted to women, the Provincial Government should have followed that principle in determining the franchise for District Board elections. There is no force in this argument, since the Constitution itself leaves it to the Provincial Legislature to regulate the franchise for District Board elections. We cannot by logical deductions apply the principled underlying a constitutional provision to similar or analogous situations which the Constitution‑makers purposely left for regula tion by the legislature. If the Provincial Government being full aware of universal suffrage granted by the Constitution for constitution of the legislature departs from that principle, its action cannot for that reason alone be held to be unconstitutional or unreasonable. In the present case, however, it cannot be said that woman have been denied the right to vote because that right as granted by the 1952 Rules stands unaffected and the 1955 Rules do no more than decide how that right is to be exercised. The informa tion supplied by the learned Advocate‑General shows that the Provincial Government had before them the results of experiments tried in other District Boards and Municipal Corporations where mixed constituencies for elections had been formed but not a single women returned. If the conditions in Lyallpur were as they had existed in those districts where the experiment of mixed constituencies had been tried, the result would have been that no woman would have been returned as a member of the District Board. The Government therefore thought of the device of creating special constituencies for women in which women alone were eligible and entitled to vote. This ensured them at least three seats in the District Board and was a better arrangement than the one in which they had to compete with men in every constituency. It is true that under the 1955 arrangements the constituencies for women are larger and the number of seats reserved for them is less than their proportion in the population would entitle them. But being in the nature of a concession, the grant cannot be challenged on the ground that it is inadequate. The Court can hardly go into this question which is one that should be fought on the political side‑with Government or the legislature. It is not suggested that in making the 1955 Rules the Government acted mala fide or with the intention to harm the women's interests. As stated by the Government the arrangements are merely provisional and experimental and the position is liable to review after the results of the experiments in Lyallpur and other districts have been studied. For these reasons Article 5 of the A Constitution cannot be said to have been contravened and the contrary view cannot be sustained. The judgment of the High Court proceeds on a priori reasoning from a supposed equality between men and women in the matter of franchise as to which the Constitution contains no express provision. This assumption is not correct, as sex has often been held in the past to be a; disqualifying circumstance for franchise and in this country there, are good many reasons for the legislature or the Government, when subordinate legislation is entrusted to it, to take the view that women require special' treatment in regard to their representa tion in, and the right to vote for elections to local bodies. And if after considering the relevant circumstances the legislature or the Government forms that opinion, it cannot be held that its judgment is irrational, unreasonable or without any valid basis. We accept the appeal, reverse the judgment of the High Court and recall the writs and orders issued in accordance therewith. A. H. Appeal accepted.