P L D 1964 Dacca 795 (PLP)

SATTAR, J.‑

The petitioner, Tamizuddin Ahmed, who claims that he was a member of the Jamaat‑e‑Islami, has, in this appli cation under Article 98 (2) of the Constitution, called in question two orders passed by the Provincial Government, one under section 16 and the other under section 17‑A of the Criminal Law Amendment Act, 1908. By the first Jamaat‑e‑Islami was declared unlawful while under the second some places were declared to have been used for the purposes of the said unlawful association. The petitioner in his petition has asserted inter alia that Jamaat‑e‑Islami along with all other political parties was abolished on the 8th October 1958 and later prohibited from functioning as political organisation by Ordinance No. XVIII of 1962. After the promulgation of the Constitution, however, the National Assembly passed the Political Parties Act, (Act III of 1962) permitting formation of political parties indicating specifically the prohibitions for political activities and also laying down the procedure by which a political party, contravening its provisions, could be dissolved. Jamaat‑e‑Islami was then revived as permitted by section 4 of the said Act. It has, as it also had in the past, as its object only lawful purposes and adherence to the principles of Islamic ideology which it propagates through legal means without resort to violence or intimidation. Jamaat‑e‑Islami, it is said, was first formed on the 25th August 1941, having a written constitution and was a political party. In the petition certain assertions have been made to show mala fide of the Government in passing the impugned order but, as Mr. Brohi has not advanced any argument in this regard, we do not consider it necessary to recount the same. The petitioner has denied the allegations against the party contained in the notifications in question and has, in support thereof, referred to Annexure D to the petition, which appears to be an extract from the June 1963, issue of the Monthly "Tarjuman‑ul‑Quoran" under the heading "Jamaat‑e -Islami Pakistan, A Brief Introduction". An affidavit‑in‑opposition has been filed on behalf of the Government of East Pakistan. In this affidavit, affirmed by Mr. M. A. Wahab, Section Officer, Home Department, Government of East Pakistan, the statements in the petition have been traversed. It has been said that Jamaat‑e‑Islami was not a political party. It "was a religious association of Muslims who adhere to follow the principles of Islam and used to propagate the same throughout the Country." The deponent has then said that the Jamaat had been interfering with the administration by creating disaffection and hatred in the minds of the people in this province against the Government, particularly after the promulgation of the Family Laws Ordinance. The action against the Jamaat, it has been said, was taken in the interest of public peace and tranquility as well as the Security of Pakistan. In view of the arguments advanced, it is not necessary for us to go into the disputed questions of fact arising out of the assertions made in the petition and reiterated in the affidavit‑in- reply and the counter‑assertions made in the affidavit‑in- opposition. The learned Advocate‑General has not argued that Jamaat‑e‑Islami is not a political party. The first notification is in the following terms:‑

Notification No. 15‑Poll (III‑6th January 1964)‑whereas the Governor of East Pakistan is of opinion that the association known as Jamaat‑e‑Islami has for its object interference with the administration of the law and the maintenance of law and order, and that its activities are such as to constitute a danger to the public peace. Now, therefore, in exercise of the powers conferred by subsection (i) of section 16 of the Criminal Law Amendment Act, 1908 (Act XIV 1908), the Governor is pleased to declare the said Jamaat‑e‑Islami to be an unlawful Association within the meaning of Part II of the said Act. By order of the Governor, A. Q. Ansari Secretary to the Government of East Pakistan." The learned Advocate for the petitioner has challenged this notification on three grounds. The first ground urged by him is that the Criminal Law Amendment Act, 1908, in so far as it can be invoked to declare a political party as unlawful, is ultra vires by reason of Article 134 of the Constitution, in that it is incon sistent with the Central Law covering the same subject, namely, the Political Parties Act. He has pointed out that all political parties were abolished by the promulgation of the 8th October 1958. Further Ordinance No. XVIII of 1962 declared:‑

"Unless expressly permitted by an Act of the Central Legislature, no association of persons shall set up organisational structure or collect funds or otherwise hold, acquire or own property, if the object of the association is to propagate political opinion or otherwise to indulge in political activity, nor shall any association of persons, whether with or without an organisational structure, call itself by any of the names mentioned in the Schedule or by names which are obvious and identifiable variations of those names", Jamaat‑e‑Islami was one of the parties which were mentioned in the Schedule. Article 173 of the Constitution provides that "Except as permitted by Act of the Central Legislature any person who, in connection with an election required to be held under this Constitution, holds out himself or any other person as being a member of, or is having the support of, a political party or any similar organisation shall be punishable m such manner as may be prescribed by Act of the Central Legislature." Thereafter the Central Assembly passed the Political Parties Act, (Act III of 1962) which in section 4 laid down. "Subject to the provisions of section 3 it shall be lawful‑

(1) for any body or individuals or association of persons to form, organise or set up a political party; (2) for any person to be a member or office‑bearer of, or be otherwise associated with, a political party; or (3) for any person, for the purpose of an election to be held under the Constitution to hold himself out or any other person as a member, or to have the support, of a political party, the formation, organisation or setting up of which is not prohibited by this Act." We propose to cite the provision of section 3 when we shall have occasion to refer to that section at a later stage. In view of the above provisions it has been argued that section 16 of the Criminal Law Amendment Act, under which the first notification has been issued, in so far as it is applicable to political parties, is incon sistent with the provisions of the Political Parties Act and, therefore, by reason of Article 134 of the Constitution, is invalid. In support of his contention, Mr. Brohi has drawn our attention to section 109 of the Australian Constitution and certain decisions of the High Court of Australia. Section 109 of the Constitution of the Commonwealth of Australia runs as follows: "When a law of State is inconsistent with a law of the Common‑wealth, the latter shall prevail and the former shall, to the extent of the inconsistency be invalid." Article 134 of our Constitution is in the following terms: "When a Provincial Law is inconsistent with a Central Law the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." The language of the two provisions is substantially identical. It has been pointed out that the Political Parties Act was passed by the Central Legislature in exercise of its powers under clause (2) paragraph (c) of Article 131, which provides: "(2) Where the national interest of Pakistan in relation to‑

. (c) the achievement of, uniformity in respect of any matter in different parts of Pakistan, so requires, the Central Legislature shall have power to make laws (including laws having extra territorial operation (for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule." It is argued that in the absence of any express provision that any law made by the Central Legislature, in exercise of its powers under clause (2) of Article 131, is subject to legislative change by the Provincial Legislature, such a law, as a law made under clause (1) of Article 131 in exercise of the exclusive power of the Central Legislature, relating to a matter enumerated in the Third Schedule, if inconsistent with a law of the Provincial Legislature, must prevail to the extent of the inconsistency. So far as these submissions go, they seem to be unassailable. The question that, however, arises is whether the Criminal Law Amendment Act is a Provincial Law within the meaning of Article 134 of the Constitution. The Act was passed by the Central Legislature in 1908. It is no doubt administered now by the Provincial Government in view of the distribution of powers under the Constitution but can it on that account be called a Provincial Law? Article 242 of the Consti tution defines Provincial law as a law made by or under the authority of a Provincial Legislature and includes a law mad by the Governor of a Province. In view of the above definition, the validity or otherwise of the Criminal Law Amendment Act, 1908, cannot be determined with reference to Article 134 of the Constitution. This, however, does not finally answer the points raised by Mr. Brohi as the relevant law is open to attack and has in fact been attacked on other grounds also. In this con nection reference may be made to Article 137 in Crawford's Statutory Construction, and to the following extract there from:‑-- "

137. Implied Repeals, generally.‑Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes those which occur where an Act is so inconsistent or irreconcilable with an existing prior Act that only one of the two can remain in force, and those which occur when an Act covers the whole subject of an earlier Act and is intended to be a substitute therefore . . . . ." That the contingencies visualised in the above passage may resin in inconsistency and thereby one of the laws may stand repealed by the other, has not been disputed before us by the learned Advocate‑General. He has, however, very strenuously argued, firstly, that there is no inconsistency between the Criminal Law Amendment Act and the Political Parties Act and secondly that 'the latter cannot be said to occupy the entire field in regard to political parties, their activities and the circumstances under which they may be stopped from functioning. In view of our finding above regarding the applicability of Article 134 to the present case, th. decisions reported in 10 C L R 266; 37 C L R 466 and 43 C L R 472, on which Mr. Brohi has relied, have no direct bearing on the present case as they have reference to section 109 of the Australian Constitu tion. Without, therefore, entering into a detailed discussion about the facts and conclusions in those cases, we may usefully quote the following passage from page 253 of Mr. Brohi's treatise on Fundamental Law of Pakistan where these decisions have been dealt with. "Ordinarily the laws could be said to be repugnant when they involve impossibility of obedience to them simultaneously. (See 8 C L R 465 and 10 C L R 266). But there may be cases in which enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. In an Australian case, Clyde Engineering Co, Ltd. v. Cowburn (1926) 37 C L R 446 it was held that inconsistency is created also when one statute takes away rights conferred by the other. In that case the Federal Law prescribed a 48 hours week and by its several provisions established the procedure for payment of overtime on that basis. The state law on the other hand prescribed a 44 hours week. It was ruled that the two statutes were inconsistent with each other. (See the illumi nating judgment of Isaacs, J. under `inconsistency' at p. 489. `If an Act of Parliament', says the learned Judge, `for instance, prescribed 25 lashes for robbery under arms and a later Act prescribed that such an offender should be punished wit 29 lashes, it could, of course, with equal truth be said that both provisions could be obeyed, and therefore, applying the suggested test, the offender must receive 45 lashes. But surely the vital question would be: was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first? If it was so intended, then the incon sistency would consist in giving any operative effect at all to the first Act, because the second was intended entirely, to exclude it. The suggested test, (namely that both Acts can be obeyed however useful a working guide it may be in some cases, or in other words, however it may for some cases prove a test, cannot be recognised as the standard measuring rod of inconsistency." In another Australian case ex parte Mclean reported in (1930) 43 C L R 472 yet another test of inconsistency was formulated. Two Statutes could be said to be inconsistent, but provided for different sanctions for enforcing those duties; as for example in a case where one statute imposed a duty and provided for sanction of a certain type to secure compliance with that duty, and another statute dealt with the same subject- matter but while imposing the same duty provided a different kind of sanction, the two laws could not stand together as a person obliged to follow one law could not at the same time be expected to submit himself to another. This was a case in Which the State Law (Master and Servants Act, 1902) ha prescribed a certain kind of punishment for misconduct toward their employees but the Federal Law (Commonwealth Con ciliation and Arbitration Act 1904‑28) dealt with the same kind of misconduct under a somewhat different sanction. Under section 109 of the Australian Constitution the conflict was resolved and the Commonwealth law was made to prevail over the State Law. (This case has been approved by the Privy Council in the case of Thomas O'Sulivan v. Noarlunga Neat Ltd. ((1957) A C I). The principle that was laid down was stated by Dison, J. at p. 483 as follows:

"The inconsistency does not lie in the mere co‑existence of two laws which are 'susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustive, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed, when a Federal Statute discloses such an intention, it is consistent with it for the law of the State to govern the same conductor matter." It is to be remembered that there is always a presumption in favour of the validity of a law and that every effort should be made to reconcile the two provisions. On page 173 Maxwell's Interpretation of Statutes (9th Edn.) the following passage occures: "But repeal by implication is not favoured Foster's. case (1614) 11 Rep. 63‑A. A sufficient Act ought not to be held to be repealed by implication without some strong reason Lord Bramwall, G. W. Ry: v. Swindon & Cheltennam Ry., (1884) A C 787, 809; R. v. Corrigan (1931) 1 K B

527. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute‑book or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. A reasonable construction which offers an escape from it is more likely to be in consonance with the real intention." In the case of Shyamakant Lal v. Rambhajan Singh and others (AIR1939FC74 at p.83) Sulaiman, J. observed: "There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and case should be taken to see whether the two do not really operate in different fields without encroachment." Section 16 of the Criminal Law Amendment Act provides that if the Provincial Government is of opinion that any association interferes, or has for its object interference, with the administra tion of the law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful. Section 4 of the Political Parties Act, as we have already indi cated, permits formation, organisation or setting up political parties subject to section 3 of the Act. Section 3 lays down that no political party shall be formed with the object of propagating any opinion or of acting in a manner prejudicial to the Islamic ideology or the integrity or security of Pakistan. On a careful consideration of the two provisions, we are unable to accept the contention of Mr. Brohi that they are inconsistent. We are of the view that they are intended to operate on two entirely different fields, and in that view of the matter, there is no direct inconsistency between the two provisions. The second branch of Mr. Brohi's contention relates to the occupation of the entire field of political activities by the Political Parties Act. It is said that as the political parties ceased to exist after the promulgation of the 8th October 1958, and some, including, the Jammat‑e‑Islami, were renewed only after the passing of the Political Parties Act .by the Central Legislature, it is to be concluded that the Political Parties Act was intended to occupy the entire field. According to the learned Advocate this intention appears to be clear in view of the provisions contained in section 4 of the Political Parties Act which lays down that all political parties can function subject only to the provisions of 3 of the Act. It does not say that its provision is subject to any other law including the Criminal Law Amendment Act and therefore, as Jamaat‑e‑Islami. Party was renewed after the Political Parties Act was passed, it derive its lawfulness from section 4 of the Act and cannot according be declared unlawful by any other law. It is then contended that by declaring Jamaat‑e‑Islami to be unlawful under section 16 of the Criminal Law Amendment Act, the Provincial Government has taken away the right given by the Central Legislature under section 4 of the Act. In this connection we find the following passage in Crawford's Statutory Construction, on page 630: "The Courts do not look with favour upon implied repeals, and the presumption is always against the intention of the Legislature to repeal legislation by implication. The absence of an express provision in a statute for the repeal of a prior law gives rise to this presumption, which is accentuated where the various statutes were enacted at the same session of th Legislature .

This presumption against the intent to repeal by implication rests upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining the same subject, so that the failure to add a repealing clause indicates that the intent was not to repeal any existing legis lation. This presumption, however, is over‑thrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals and intent to repeal the existing law. Similarly, when a statute specifically repeals certain Acts or parts of an Act, it will not be presumed that the Legislature intended to repeal any Act or any part of an Ac not mentioned." In the case of Badrul Haque Khan v. The Election Tribunal, Dacca and two others (P L D 1963 S C 704) our Supreme Court also considered this question. In that case the question that arose for consideration was whether, by the President's Order No. 4 of 1962, the Representation of the People Act (Act XXXI of 1957) stood impliedly repealed as the order of the President was said to contain the entire law on the subject of election disputes. In this connection, Cornelius, C. J. on page 403 observed as follows: "Dr. Nasim Hasan Shah's second argument, namely, that on the principle of the field having been fully occupied by a late exhaustive law, the earlier law on the same subject should be deemed to have been repealed is based upon certain propo sitions stated in text books on the interpretation of statutes. In particular, he cited a passage from Crawford on Statutory Construction (1940) paragraph 137, where it is said that on category of implied repeals is that brought about `when a Act covers the whole subject of an earlier Act and is intended to be a substitute thereof. The paragraph goes on to say that a `repeal takes place under those circumstances, even though the new Act contains no repealing clause'. The statement is very large and general and although it is said to be supported by a number of authorities from the American Courts set out in a footnote, Dr. Nasim Hasan Shah was unable to place before us any case which would avail to sustain the pro position in its fullness. Each case which he cited related to repeal protanto by repugnancy of some earlier detailed provision as a result of new legislation, but mere the argument is that because practically all the matters dealt with in the Representation of the People Act, 1957, have subsequently death with in the President's Orders Nos. 4 and 13 of 1962, therefore, even without any express repeal of 1957 being effected by anything said in these two Presidential Orders, the provisions of the Act and in particular section 116 which is not repealed by repugnancy to either of the two Presidential Orders must be deemed to have been repealed. The weakness of this argument has in fact been that this is not a case of mere absence of a repealing provision in the, subsequent statute. Article 87 of President's Order No. 4 of 1962 is in the following terms:‑

The provisions of this Order shall take effect notwithstanding anything inconsistent contained in any other law `for the time being in force'. There is no question but that an important law on the same subject which was `for the time being in force' was the Representation of the People Act of 1957, and if the intention was that that Act should be repealed as a whole, it was perfectly simple matter to say so in this Order. But what has actually been said is that earlier provisions are repealed by the provisions of the President's Order No. 4 of 1962 to the extent of inconsistency, and therefore the argument of wholesale repeal based upon the absence of a repealing provision is not available. It is necessary for a person seeking to avoid the effect of the section 116 of the 1957 Act on the ground of the promulgation of the President's Order No.4 of 1962 to show that section 116 is inconsistent with something said in the latter Act." The above observations of the learned Chief Justice apply mutatis mutandis to the present case. In this view of the matter we do not find any substance in the first contention of Mr. Brohi. Mr. Brohi has also contended that the order in question is really the act of the Central Government, but the Provincial Gov ernment has been made to pass the same in order to by‑pass the provisions of the Political Parties Act. Apart from the fact that on the same day both the Provincial Governments issued orders in regard to Jamaat‑e‑Islami party, we have no materials before us to accept this contention. The next point urged is that the notification in question can have no operation on and from the 10th January 1964 when the fundamental rights were incorporated in the Constitution as section 16 of the Act, on the authority of which the impugned order has been passed, became inconsistent with the 7th Fundamental Right given by the Constitution (First Amendment) Act of 1963 (Act I of 1964). The 7th Right is as follows:‑ "

7. Freedom of association.‑Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order." The question that directly arises is whether section 16 of the Criminal Law Amendment Act can be said to have imposed reasonable restrictions on the freedom of association within the meaning of the 7th Fundamental Right and if not, what would be the effect of the same on the notifications in question which were published on the 6th January 1964, before the funda mental rights were incorporated in the Constitution. In order to appreciate the argument of the learned Advocate, it is necessary to quote sections 15 and 16 of the Criminal Law Amendment Act. These run as follows:

"

15. Definitions.‑In this Part‑ (1) `association' means any combination or body of persons, whether the same be known by any distinctive name or not; and (2) `unlawful association' means an association‑ (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the State Government under the powers hereby conferred." "

16. Power to declare association unlawful:‑ (1) If the State Government is of opinion that any association interferes or has for its object interference with the adminis tration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the State Government may, by notification in the official Gazette, declare such association to be unlawful." It has been argued on behalf of the petitioner that the impugned section 16 has the following four features: (i) It confers arbitrary powers on the Provincial Government to ban an association on the subjective satisfaction of the State Government; (ii) No machinery has been provided for revision or other mode of review of the action taken; (iii) It has made no provision for hearing the association before action is taken; and (iv) There is no period fixed for the ban, the ban being virtually absolute and permanent. That the impugned sec tion 16 bears the above characteristics cannot be disputed. The point that falls for determination is whether, in spite of that, it can be said to have imposed reasonable restrictions on the freedom of association, as has been argued by the learned Advocate‑General and as such is a law within the permissible limit of the 7th Fundamental Right. In this connection, he has placed reliance upon the case of Babulal Parate v. The State of Maharastra and others (AIR1961SC884) in this case, an order promulgated under section 144 of the Code of Criminal Procedure was challenged on the ground that it was an encroachment on the fundamental rights of freedom of speech and expression guaranteed by Article 19 (1) (a) (b) of the Indian Constitution. The Supreme Court (India) has on an analysis of the provisions of section 144, pointed out that this section is intended to be availed of for preventing disorders, obstructions and annoyances and is thus intended to secure public weal, that the powers are exercisable by responsible Magistrates and these Magistrates are to act judicially, and that, the restraints permissible under the provision are of a temporary nature and can only be imposed in an emergency. It has further been pointed out that satisfaction of the Magistrate as to the necessity of promulgating orders under section 144 of the Code of Criminal Procedure is not made entirely subjective. It has then been said that though the section empowers, in an appropriate case, a Magistrate to make an order under this section ex parte, the law requires that he should, where possible, serve a notice on the person or persons against whom the order is directed to be passed. Moreover, sub section (4) of the section provides that any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section. Lastly, it has been pointed out that though no appeal against the order lies to the High Court, it is empowered under section 439 read with section 435 of the Code of Criminal Procedure to entertain an application for revision of the order passed under section 144 of the Code. On all these considerations it has ultimately held that section 144 cannot be said to be a violation of the fundamental rights recognised in Article 19 of the Constitution. It is very difficult to see how section 16 of the Criminal Law Amendment Act of 1908 can be favourably compared with section 144 of the Code of Criminal Procedure. The direct Indian authority on the question before us appears to be the case of The State of Madras v. V. G. Row and others (AIR1952SC196). In this case the Supreme Court of India also considered the validity of sections 15 and 16 of the Criminal Law Amendment Act; as amended by Act II of 1950 of the Madras Legislature. After as the said amendment the two sections read as follows:‑

"

15. In this part‑

"(1) `association' means any combination or body of persons whether the same be known by any distinctive name or not; and (2) `unlawful association' means an association; (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such asso ciation (i) constitutes a danger to the public peace etc. (ii) has interfered or interfers with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object." "16 (1) A notification issued under-clause (b) of subsection (2) of section 15 in respect of any association shall (a) specify the ground on which it is issued, the reasons for its issue, and such other particulars if any, as may have a bearing on the necessity therefore; and (b) fix a reasonable period for any office‑bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification. (2) Nothing in subsection (1) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose." A new section 16‑A was incorporated in the Act which provides for the representation to be placed before an Advisory Board which on a consideration of the notification and the represen tation and after calling for such other information as it may deem necessary is to make a report to the State Government. If it is found that there is no sufficient cause for the issue of the notification the Government is required to cancel the notification. In spite of these amendments, the Supreme Court declared that section 15 (2) (b) of the Criminal Law Amendment Act, as amended by the amending Act of 1950 of the Madras Legislature, fell outside the scope of the restrictions under clause (4) of Article 19 of the Constitution and was, therefore, unconstitutional and void. In this connection it was observed as follows:‑

"This Court had occasion in Dr. N. B. Khare v. State of Delhi 1950 S C R 519 to define the scope of the judicial review under clause (5) of Article 19 where the phrase `imposing reasonable restrictions on the exercise of the right' also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the. point of view of reasonableness,; that is to say, the Court should consider not only factors such as the duration 'and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been autho rised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsi bility and self‑restraint and the sobring reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorising the imposi tion of the restrictions, considered them to be reasonable. "Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by Art. 19 (1) (c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential re‑actions in the religious, political and, economic field that the vesting of authority in the executive Government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and. legal aspects, to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness .of the restrictions imposed by .section 15 (2) (b) on the exercise of the fundamental right under Article 19 (1) (c); for, no summary and what is bound to be a largely one‑sided review by an Advisory Board, even where its verdict is binding on the executive Government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown into review, the materials on which the Government seeks to override a basic free dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this Court upheld in A. K. Gopalan v. State of Madras 1950 S C R 88 deprivation of personal liberty by such means, ‑ but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question ' of reasonableness could arise in view of the language of Articles 21 (Article 227) As pointed out by Kania, C. J. at p. 121, quoting Lord Finlay in Rex v. Halliday 1917 A C 260 at p. 269; the Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based." If the provisions of the Criminal Law Amendment Act, with which the Supreme Court of India was concerned could not stand the test of reasonable restrictions, it is difficult to understand how the provisions, with which we are concerned, can get out of the said test successfully. Section 16 of the Criminal Law Amendment Act empowers the Provincial Government to issue a notification declaring an association unlawful if the association interferes, or has for its object interference, with the administra tion of law or the maintenance of law and order, or that it constitutes a danger to the public peace. There is, no doubt, a duty cast on the Provincial Government to satisfy itself after making some enquiry objectively, but it will be seen that the inquiry is purely for information of its own mind. There is no provision for putting down the grounds for being so satisfied as there is none for any hearing before or after making the declaration. There is absolutely no scope for challenging the notification in Court or before any other authority. We may point out that even in a case where, in such circumstances there was a provision for approaching the High Court, a Full Bench of the Travancoore‑Coehin High Court in the case of George Chadayammury v. State (A I R 1952 Trav.‑Coch. 217) struck down the provisions as uncon stitutional. We are, therefore, of the view that section 16 of the Criminal Law Amendment Act, does not put reasonable restrictions on the Seventh Fundamental Right guaranteed by the Constitution and, therefore, is void in view of Article 6 of the Constitution. Let us now proceed to consider whether the notification in question having been issued before the fundamental rights were introduced, it is saved as a transaction past and closed so that its validity cannot be questioned. In this connection, it may be mentioned that the constitutional provision, with which we are concerned, cannot be said to be retrospective in operation. Article 6 of the Constitution is prospective. It is also to be borne in mind that when a provision of law is in conflict with funda mental rights guaranteed by the Constitution, the effect is not to obliterate the law from the statute‑book. The question is no longer res integra in view of the decision of the Supreme Court in the case of The Province of East Pakistan and another v. Md. Mehdi Ali Khan and others (P L D 1959 S C (Pak.) 387). It has been argued by the learned Advocate‑General that even if the provisions of the Criminal Law Amendment Act were to be struck down as having imposed unreasonable restrictions on the 7th Fundamental Right, they should be construed as having been repealed and, therefore, the notifications in question having been issued before the fundamental rights came into force, they would be saved by virtue of Article 250 of the Constitution. Article 250 of the Constitution inter alia provides that where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not affect the previous operation of the law or anything duly done or suffered under the law and will not affect any right, privilege, obligation or liability acquired, accrued or incurred under the law. The learned counsel's contention is that since in this Article not only the word "repeal" but also the expression "deemed to have been repealed" has been used, the word "void" in Article 6 will have the same meaning as "deemed to have been repealed" and any action taken under a law, which becomes 'void by virtue of Article 6, will have the effect contemplated by Article

250. The meaning of the word "void" is "null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid." It will be seen that the framers of the Constitution have used the expression "repeal" "deemed to have been repealed" and "void" in different Articles. For the purpose of illustration, reference may be made to Articles 224, 29 and

6. In our view, these expressions cannot be taken to have been intended to convey the same meaning nor can the consequences that follow such happening be taken to be identical. If that were the intention, nothing stood in the way to include the word "void" in Article 250 as well. We are not to read in the Article what is not there. Our function is not to legislate. We are, therefore, of the view that Article 250 has no application to the present case. The question that still remains to be answered is whether the validity of the notifications, which were published on the 6th January 1964, can be assailed on the ground that the law under which they were issued has subsequently become void because of the fundamental rights, in support of his contention that the validity of the notifications cannot be challenged, the learned Advocate‑General has relied upon the cases of the Province of East Pakistan v. Md. Mehdi Ali Khan and Delhi Cloth & General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi (AIR 1927 P C 242); The Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) and Syed Ahmad v. The State (P L D 1964 S C 266). So far as the first mentioned case is concerned, we have already considered it above. As to the second and third cases, these dealt with the question whether a right of appeal granted subsequent to an order which but for the said provision regarding appeal became final could be availed of for appealing against such an order. It was held that the change of law would have no effect on an order which had already become final. In the fourth case the Supreme Court considered the effect of section 165‑B Penal Code on an act of abetment of bribery which had taken place before the said section came into force. It was held that the section did not alter the position of an abettor who was being prosecuted for an act which had been committed before the section came into force. It is true that in case of conflict with the fundamental right, the conflicting law does not become void ab initio and everything done thereunder does not become illegal from the very beginning, but can this be said to warrant the proposition that the impugned notifications in the instant case because they were issued prior to the incor poration of the fundamental rights in the Constitution, are inviolable and not open to question. We are to see not whether the notifications, on the day they were published, were valid but whether they have any binding effect on the association in question if the law, under which they were issued, became void because of its inconsistently with the fundamental rights. The first notification, it cannot be questioned, seeks to control from day to day the activities of some persons who organised a party. Can it remain effective after it has been found that the law, under which it was issued, is ineffective because of its encroachment upon a fundamental right of the persons concerned? In our opinion, it cannot, it is not a final order inasmuch as its life was not fixed. It remains operative until it is withdrawn and it is capable of being withdrawn. It seems to control the activities of the association from day to day and as such cannot be called a past and closed transaction which cannot be questioned. In the case of R. S. Seth Shanti Sarup v. Union of India and others (AIR 1955 SC624) the Supreme Court of India was concerned with two orders one of which was passed under section 3 (f ) of the U. P. Industrial Disputes Act, 1947 and the other under section 3 (4) of the Essential Supplies (Temporary Powers) Act, of 1946. The first order by the U. P. Government had been passed on the 21st July 1949 before the Indian Constitution came into force. The second order by the Central Government, undoubtedly, was passed after the Constitution had come into force, but while considering the position of the order passed under the U. P. Industrial Disputes Act which was found to be void, Mukherjee, J. observed as follows:‑

"But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the constitution came into force and became void on and from that date under Article 13 (1) of the Constitution." In the case of Jeshinghbhai Ishwarkak v. Emperor (A I R 1950 Bom. 363) a Full Bench of the Bombay High Court considered the effect of an order of externment passed against the petitioner under the Bombay Public Security Measures Act, 1947. After holding that the law became void after the Constitution came into force, Chagla, C. J. observed as follows:‑

"'The other argument advanced by the Advocate‑General is that this order was made, as I pointed out, on 12th December 1949, and inasmuch as the order was made prior to the commencement of the Constitution, the Advocate‑General contends that in view of section 6, General Clauses Act, the operation of the order is saved and the order cannot be challenged. But what Mr. Purshottam is doing before us today is not so much the challenging of that order as the assertion of a fundamental right which is granted to him after the 26th January 1950. If we are satisfied that today when we are hearing this petition, the petitioner is deprived of his fundamental right of movement and of residence, then we can undoubtedly interfere. The saving of the order under section 6 does not mean that the State is entitled after 26th January to deprive a citizen of a fundamental right which is guaranteed to him these fundamental rights have come into existence after 26th January 1950. Our Constituent Assembly has provided remedies for violating these rights, These rights have been made justiciable and, therefore, have been made optional of the order made under section 6, of the General Clauses Act. As I have said before, we are not so much concerned with the validity of the order as the violation of the fundamental rights which have come into existence after the 26th‑January 1950." We have already seen that Article 250, which is in similar terms as section 6 of the General Clauses Act, has no application to the present case. Even if it were, we are unable to see how it can be said that the notifications which were issued on the 6th January 1964, when the fundamental rights were not introduced into the Constitution, cannot be called in question before us. We are of the view that on and from the 10th January 1964, when the fundamental rights came into force, the notification' under section 16 lost its binding effect. Looked at from another point of view also, the same con clusion, at which we have arrived above, appears to be irresistible. If the Jamaat‑e‑Islami party functions today, its members would naturally be proceeded against under section 17 because of the notification issued under section

16. The anomalous position arising from such action, will be that though the Act complained of is legal under the fundamental law of the land, it will yet be punishable because of the notification issued under section 16 of the Criminal Law Amendment Act which is void today. To us this seems to be inconceivable. We, therefore, hold that the petitioner is entitled to a decla ration that the notifications in question are inoperative and, therefore, liable to be withdrawn, cancelled or rescinded on al direction given by this Court. The next point raised is that as the order has been passed without hearing the party it is void. The principle underlying the maxim "Audi Alteram Partem" has no application to an administrative or ministerial order. By no stretch of imagination can the function of the Provincial Government under section 16 be called Judicial or quasi judicial in nature. As we have seen already, the second ground of attack on the impugned notifications has succeeded mainly because section 16 imposed unreasonable restrictions on the freedom of association. In pouring to this conclusion, we have token into account inter alia the fact that the order can be passed on the subjective satisfaction of the Provincial Government. It is true that we have also found that some ascertainment of fact is necessary, but that is only for the purpose of informing the mind of the Government. In this view of the matter, it is very difficult to see how it can be seriously contended that in this case the notifications are liable to be declared void for not following the principle of "Audi Alteram partem." The provisions of section 16 clearly indicate that the notification has to be published urgently and in this view of the matter also the question of service of notice does not arise. We are, therefore, not impressed by the argument of the learned Advocate for the petitioner on the basis of the, maxim "Audi Alteram Partem." The last point urged in this case is that the second notification is illegal. This notification is in these terms:‑

"Notification No. 16‑Poll (III) 6th January 1964.‑Whereas in exercise of the power conferred by subsection (1) of section 16 of the Criminal Law Amendment Act, 1908 (XIV of 1908), the Government has, by Notification No. 15‑Poll (1II), dated the 6th January 1964, declared the association known as Jamaat‑e -Islami to be an unlawful association. And whereas the places specified and described in the schedule hereto annexed are, in the opinion of the Governor, used for purposes of the said unlawful association; Now, therefore,‑in exercise of the powers conferred by sub section (1) of section 17‑A of the Criminal Law Amendment Act, 1908 (Act XIV of 1908), the Governor is pleased to notify the said places as the places which are used for purpose of unlawful association." It is argued that it could not be notified before the notification under section 16 was published. Notification connotes the giving of notice. Insertion in the Gazette does not amount to notification See A I R 1931 Bom.

132. As we have already seen, under section 15, unlawful associations fall under two categories and we are concerned with the second category mentioned therein. The learned Advocate for the petitioner has rightly contended that as this association became unlawful only after the notification under section 16 was published, notification under section 17‑A must follow the notification under section 16 and a simultaneous publication of both, as in this case, is bound to render the former i.e. the notification under section 17‑A illegal. There is considerable force in this argument. Obviously the two notifications were published in the same issue of the Gazette, simultaneously. In that view of the matter, the second notification appears to have been issued illegally. Regard being had to our findings above, we make the Rule i absolute and declare that the notifications issued under sections 16 and 17‑A of the Criminal Law Amendment Act have no binding effect today. The respondent is directed to rescind, cancel or withdraw the said notifications. We, however, direct the parties to bear their own costs. On the prayer of the learned Advocate‑General, we certify that this case involves substantial questions of law relating to the interpretation of the Constitution. The learned Advocate‑General has also prayed for staying the operation of the order for two weeks from the date of receipt of the certified copy of the judgment. He has undertaken to apply for an urgent copy of the judgment today. In that view of the matter we grant the stay prayed for up to two weeks from the receipt of the copy of the judgment. SIKANDAR ALI, J.

‑I agree. A. M. SAYEM, J.‑

I agree. A. H. Rule made absolute.