1991 PLP 2026 (CLC)

3. I have heard the learned Advocates for the petitioner. The sum total of their grievances is that the words "Ideology of Pakistan, the ideology of State's accession to Pakistan and the integrity and sovereignty of Pakistan" are against the Indian Independence Act, 1947. Declaration of 24th October, 1947 whereby AJ&K Government is established and United Nations Charter. They seek a declaration that all the laws (including Constitution) which are inconsistent with the above, be declared as null and void and nomination papers which arc rejected on the basis of not having scribed to the prescribed declaration, be accepted. The learned Advocates for the petitioner have not cited any law in support of their contention, except the Indian Independence Act 1947 and the declaration of 24th of October, 1947, whereunder the Azad Government is set up in Azad Kashmir.

4. The right to be a candidate and to the election is not a fundamental right. It is a statutory right and is subject to all such conditions and restrictions which the law granting the right imposes (PLD 1985 AJK 95). Therefore, a person who wishes to contest the election, has to show that he is qualified and is not subject to any of the disqualifications prescribed under law. Section 5 of the AJ&K Legislative Assembly (Election) Ordinance, 1970 (hereinafter to be called as Election Law) provides the qualifications and disqualifications to be elected or to be a member of the Assembly, while section 13 (3) authorises the Returning Officer to reject the nomination paper of a candidate if hit by, any of the disqualifications.

5. Section 5(2)(vii) of AJ&K Legislative Assembly (Election) Ordinance, 1970 which is relevant for the purpose of the case is reproduced as:-- "5 (2) A person shall be disqualified for being elected or chosen and for being a member; if; (vii) he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan, the ideology of State's Accession to Pakistan or the sovereignty, integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan or morality, or the maintenance of Public order, or the integrity or independence of the Judiciary of Azad Jammu and Kashmir or Pakistan, or which defame or brings into ridicule the Judiciary of Azad Jammu and Kashmir or Pakistan, or the Armed Forces of Pakistan:" Section 13 (3) which authorises the Returning Officer to reject nomination paper to the extent it is relevant, needs al

6. The nomination papers of the petitioner have been rejected on the ground that "the candidate has not accepted the declaration in full". The petitioner has not only, not subscribed to the declaration as provided by law, but has struck off the prescribed words "The Ideology of Pakistan, The Ideology of State's Accession to Pakistan and the Integrity and Sovereignty of Pakistan" and inserted unauthorised words" Is se Itiffaq nahi " and "Freedom of Jammu and Kashmir State" in the declaration. Section 11 of the Election Law provides for the proposal of the nomination of candidate 'and subsection (2) of section relevant for the purpose reads as: 11 (2) Every proposal shall be made by a separate nomination paper in the" prescribed form which shall be signed by the proposer and the seconder and shall contain

" The form visualizad by subsection (2) of section 11 of the Election Law is prescribed in Form 1 under Rule 3 of Azad Jammu and Kashmir Legislative Assembly (Election) Rules, 1970. (Hereinafter to be called as Rules).

7. The declaration prescribed in the nomination form besides having its own statutory force under section 11 of Election Law and Form 1 of rule 3 of Election Rules, is protected by the authority of subsection (7)(2) of section 4 of the AJ&K Interim Constitution Act, 1974, being relevant for the purpose is reproduced as: "4 (7) (2) No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to, the ideology of the State's accession to Pakistan."

8. A combined reading of section 5(2)(vii) of Election Law and section 4(7)(2) of the Interim Constitution Act, 1974, reveals that the words used therein are analogous and. have synonymity. Besides others, the words `Propagate' or `Propagating' are most conspicuous and significant. Having not been defined under the law, the recourse shall be had to its dictionary meaning. The Legal Thesaurus, Regular Edition by William C. Burton, defines it as: "PROPAGATE" (increase), verb: be fruitful, bear, beget, bread, bring into being, continue, create, engender, father fecundate, generate, gignere, give birth, multiply, originate, procreare, pro create, produce, progenerate, proliferate, pullulate, reproduce, sire, spawn, team". PROPAGATE (Spread), verb: advertise, air, blaze, blazon, broadcast, circulate, diffuse, disseminate, enunciate, evulgate, hawk about, herald,, issue, make known, make public, noise abroad, notify, proclaim, promote, promulgate, publicize, publish, repeat, report, serere, spread abroad, tell, transmit, trumpet, vent, ventilate, vulgare:'

9. Substitution of one's own ideas or belief by scrapping out the words prescribed by law, amounts to propagating an ideology not permitted by the Constitution and the law. Howsoever righteous or sacrosanct the belief or ideology of a person may be, it cannot be accepted or enforced by the Courts of law, if it is derogatory or against the clear provisions of law. The only course open under such a state of affairs is that the person deeming a law as against his ideology may have it changed through the Constitutional machinery, and if not, transform himself in accordance with the law. One has to follow the law as it is. It is not that a part of the law that suits a man should be accepted and the unacceptable part of the same should be thrown away. One has to accept the scheme of law as a hole or not at all. Petitioner, who accepts the right of representation, the election machinery, the institution of Assembly, the Government etc. all provided by the Constitution, law and rules relating to the election, cannot be allowed to turn a volteface to the disqualification provided by section 5 of Election law. The Returning Officer and the Chief Election Commissioner have acted perfectly in accordance with law in rejecting his nomination paper and appeal respectively, as the proposal for nomination has not been made in the prescribed form and the petitioner stands disqualified under section 5 (2) (vii) of Election Law.

10. As for the arguments or the learned Counsel for the petitioner that the words embodied in the declaration being against the Indian Independence Act 1947; the Declaration of the Azad Government of the State of Jammu and Kashmir dated 24-10-1947 and United Nations Charter, be-declared as void ab initio is concerned, it is all feigned ignorance. The legal status of Azad Kashmir has to be viewed in the background of the Freedom Movement, partition of India, emergence of the two dominions of India and Pakistan, UNCIP Resolutions and above all, the will of the majority of the people, which are all the political questions of multidimensional aspects, and the political questions are not justiciable and solved by the Courts, but by the pious and dedicated political leadership of the national stature, keeping in view the ultimate national interest under the global political scenario. Freedom of the STATE of Jammu and Kashmir i.e. FREEDOM FROM THE INDIAN OCCUPATION is the political belief of all those who are affected by or concerned with the Kashmir problem, but the ideology of its accession to Pakistan, is the constitutional and legal obligation of all those who claim the enforcement of a fundamental right under the Constitution of Azad Jammu and Kashmir. The latter being justiciable in a Court of law, while the former is not. Azad Jammu and Kashmir is termed as `Local Authority' under UNCIP Resolutions and the local authorities are resolved under the UNCIP Resolutions. To "have full political and administrative control and to be responsible for the maintenance of law and order". It is in discharge of this responsibility and control, that Interim Constitution Act, 1974, and all the provisions thereunder, have been enforced with the unanimous agreement of all the political parties having the recognized representative character in the State.

11. All laws preceding the enforcement of Interim Constitution Act, 1974, E are given force of law under section 51 of the Constitution Act, 1974 I which runs as. "

51. Continuance of existing Laws: Subject to the provisions of this Act, all laws which immediately before the commencement of this Act were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or amended by an act of the appropriate authority. (Explanation: in this section: (a) `laws includes Ordinances, Orders, Rules, Bye-laws, Regulations arid any Notifications and other legal instruments having the force of law; and (b) `in force' in relation to any law, means having effect as law whether or not the law has been brought into operation)." The laws and rules `relating to election which provide qualifications and disqualifications for being a candidate or member of a representative body are, therefore, valid and enforceable legislations and the touchstone of their validity is only the Constitution Act, 1974, not any other law. Even if the documents mentioned by the petitioner are deemed as law by any stretch of imagination, the Constitution has an overriding effect over them as provided under section 57 which runs: "

57. Act to over-ride other laws etc.--(1) The provisions of this Act shall over?ride and have effect notwithstanding the provisions of any law for the time being in force. (2) No Court, including (The Supreme Court of Azad Jammu and Kashmir and) the High Court, shall call into question or permit to be called into question the validity of this Act (or an Act to amend it)". In view of above Constitutional and legal position, the petition stands dismissed in limine. A.A./477/H.C.A.???????????????????????????????????????????????????????? Petition dismissed.