P L D 1978 Lahore 1298 (PLP)

"The note in (1954) 17 M L R 248 deals with Ulster Transport Authority v. James Brown & Sons Ltd. 1953 N I 79, a decision of the Court of Appeal for Northern Ireland presided over by Lord Mac Dermott, Lord Chief Justice. Dealing with section 5 (1), the learned Lord Chief Justice says : 'I am not aware of any authority for the view that language such : as this necessarily means that contravention must produce an actual gap in the statute book in the sense that the measure concerned or some- specific part thereof, simply drops out of the authorised text. As well as this vertical severability, if I may so describe it, I see no reason why, if the circumstances warrant such a course, the terms of section 5 (1) should not be sufficiently met by what I may call a horizontal severance, a severance that is, which, without excising any of the text, removes from its ambit some particular subject-matter, activity or application. This, I think, would give effect to the words 'so far as it contravenes' without impinging on the meaning or weight to be attached to the word 'void'."

24. Article 13 of the Indian Constitution is worded similarly as Article 8 of our Constitution. It may, therefore, be of help to consider the way this provision has been interpreted there. Mukharjea, J. in Saghir Ahmad v. U. P. (A I R 1954 S C 728) held that a statute void for unconstitutionality is dead and cannot be vitalized by a subsequent amendment of the Constitution but must be re-enacted. He relied on Cooley, Constitutional Limitations, Vol. I, page. 384 in support of his view. In Behram Khurshid Peri Kaka v. Bombay (A I R 1955 S C 123) the same Supreme Court held that part of an existing law which is unconstitutional is not law and is null and void. Such law, it was observed, is to be notionally obliterated from-the text for all intents and purposes though it may remain written on the statute book and be a good law for question arising before the promulgation of the Constitution. Mahajin, C. J. also held that there was no distinction between a law void for violating a constitutional fetter or limitation on legislative power itself. According to him both represented two aspects of lack of legislative power. In Bhikajl Narain Dhakras v. M. P. (A I R 1955 S C 781) the Supreme Court ruled that the impugned unconstitutional existing law is eclipsed for the time being by the Fundamental Right but is revised as soon as the constitutional filter is removed. Relying on the American authorities, the Court held that though the post-constitution laws are still-born but that rule will not apply to India about existing laws, which were perfectly valid before the Constitution. The existing laws, it was ruled, would not be dead for all purposes but would exist for the pre-constitutional rights and liabilities and remain operative in future as against non-citizens who do not enjoy Fundamental Rights. As against citizens the position of the existing laws was stated to be dormant or moribund.

25. This state of law is parallel to the theory of eclipse which means that such a law is not a nullity or void ab initio but remains unenforceable. It also recognizes the distinction between a law void for legislative incompetence and a law void for violating Fundamental Rights. The whole question was again considered in M. P. Y. Sundararmier v. A. P. (A I R 1958 S C 468). The view of the Court was "Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto. "

26. In L. Jagannath v. Authorised Officer (A I R 1972 S C 425) the Indian Supreme Court reconsidered this point and held as under;

"In our view, although decisions of the American Supreme Court and the comments of well-known commentators like Willoughby and Cooley have great persuasive force, we need not interpret our Constitution by too much reliance on them. Nor is it necessary to scrutinise too closely the decisions wherein views appear to have been expressed that a law which is void under Article 13 (2) is to be treated as still-born. Equally unfruitful would it be to consider the doctrine of eclipse."

27. The controversy again came up for consideration in Gujrat v. Ambica Mills Ltd. (A I R 1974 S C 1300). The Court ruled that where Fundamental Rights have been conferred only on some person, natural or juristic, a pre-constitution or post constitution law contravening those rights is void qua those persons but is valid qua other persons on whom those rights have not been conferred. Thus the laws which remain applicable to some class of persons cannot be still-born or non est even though they were inconsistent with the Fundamental Rights by the Constitution on other persons.

28. The theory of eclipse did not come up for discussion in the above case. However, the view taken in the Ambica Mills case is that a law, which is repugnant to the Fundamental Rights enshrined in the Constitution, is neither void ab Initio, extinct, still-born or non est, nor is it obliterated from the Statute book. It rather exists in totality without any portion of it being eclipsed by any outside object, and is operative as such for pre-constitutional matters and with regard to persons other than those enjoying the Fundamental Rights. Thus the question whether a law is void or not depends on the answer to the question whether the matter involved pertains to a period when the Fundamental Rights existed or not and if they did, whether the petitioner is the holder of those rights? The Fundamental Rights, according , to the latest view of the Indian Supreme Court, on the other hand, m H. H. K. Marti's case (A I R 1973 S C 1461) are there to exist permanently as the Parliament cannot amend the Constitution so as to destroy or eliminate them.

29. The Supreme Court of Pakistan considered the above proposition in the case of Province of East Pakistan v. Muhammad Mehdi All Khan (P L D 1959 S C (Pak.) 387) and ruled that the term 'void' meant as `not in operation', or `not enforceable', or 'in abeyance' so long as the supreme law holds the field. Their Lordships found no difference in the meaning of the term 'void' as appearing in Article 4 (1) and 4 (2) of the then Constitution but distinguished their scope and extent on the wording of the two provisions. They, therefore, held that the law declared void under Article 4 (1) having been made originally by a competent Legislature need not be re-enacted if the supreme law was no longer operative against the existing law, whereas a re-enactment is a must under Article 4 (2) as the Legislature that made that law was not even competent at the time it enacted that law.

30. The Supreme Court considered the same point again in The Tribunal v. Hashim and followed the above judgment with the following observations at page 265; "With effect from the 7th October 1958, when the Constitution including the Fundamental Rights was abrogated, all enactments of date prior to the 7th October 1958, are continued in full force according to their terms, and irrespective of any conflict between their provisions and the Fundamental Rights formulated in the late Constitution."

31. In Alrul A'la Maudoodi's case the Supreme Court specifically considered the similar notifications issued under sections 16 and 17-A of the Criminal Law Amendment Act, 1908, and declared them as void, being inconsistent with the Fundamental Rights. Considering again the implication of the term 'void' their Lordships held that it only meant 'ineffective in the premises' and not obliterated or repealed to the extent of inconsistency. Their Lordships termed the inconsistent law in a state of hibernation but becoming operative again if Fundamental Rights disappear. S. A. Rehman, J. at page 445 of his judgment in Mehdi Ali Khan's cam gave his reason for the view in the following words; "The fact must not be lost sight of that some of the Fundamental Rights guaranteed by the late Constitution were available only to citizens of Pakistan and not to aliens. An instance in point is the quality clause included in Article 4 of the late Constitution In a case of the type which formed the subject of decision by this Court in Waris Meah v. The State P L D 1957 S C (Pak.) 157 if the appellant had been an alien, no relief could have been granted to him and the impugned provisions of the Foreign Exchange Regulation (Amendment) Act (XXXII of 1956) would have been enforceable against him, in spite of their discriminatory character. "

32. The view taken by their Lordships of the Supreme Court finds its support from the wording of Article 143 of the Constitution also. If the import of the word 'void' was to kill the inconsistent provisions and to remove them from the statute book for ever the provision for revival of the same void law on the disappearance of the federal law would not have been there.

33. It is quite clear from the above resume of the prevailing opinions of the various Courts enjoying a legal and Constitutional system similar to ours that a law or its provisions which are inconsistent with the Constitution basic norm or a Supreme law do not die and are neither still born, non est or non-existent nor are they effaced or obliterated from the statute book. Rather such a law or such of its provisions do exist totally to be applicable to the pre-constitutional matters and also to those to whom the Fundamental Rights afford no protection. Further such a law or those provisions may reappear to be operative as soon as the Fundamental Rights or the supreme law cease to exist.

34. It is now well established that when a legal order comes to an end, for whatever reason, the laws made thereunder also lose their effectiveness and in order to continue them in force, the new legal order must expressly sanction it. Reference in this connection be made to the case of United Provinces v. Atiqa Begum (AIR 1941 FC 60). It was held by their Lordships in that case that when a new Constitution is enacted and old repealed, a provision to continue existing laws is made in order to negative the possibility of their being no longer in force for the reason of the repeal of the Constitution under which they were enacted.

35. This observation is illustrated by section 292 of the Government of India Act, 1935, which continued in force all existing laws after the Government of India Act, 1915, had been repealed. The same routine was followed by providing Article 224 in the 1956 Constitution and Article 225 in the 1962 Constitution. It is repeated in Article 4 of the Laws (Continuance in Force) Order, 1958, and so on thereafter. Article 268 of the 1973 Constitution is the one in the field now. According to Article 268 (1), subject to Constitution, all existing laws, except as provided in that Article, shall continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. Article 268 (7) defines, 'existing laws' to mean all laws . . . in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day.

36. The Criminal Law Amendment Act, 1908, which is under scrutiny in this case was also an existing law. It was held in Abul Al'a Maudoodi's case that this law had been continued in force under the 1962 Constitution as an existing law. On the incorporation of Fundamental Rights in the Constitution in 1964, it became void and, therefore, unenforceable and inoperative. On the promulgation of Martial Law in 1969, the entire Act became operative once again and remained in force till 21st April, 1972, whey it became inoperative due to enforcement of the Interim Constitution. Article 280 of the Interim Constitution continued it in force. The same was done under Article 268 (1) of the 1973 Constitution. The outcome of the), above resume is that the Criminal Law Amendment Act, 1908, was continued in force under the 1973 Constitution also.

37. The question then is what is the effect of Article 8 of the Constitution on this law? Article 8 (1) speaks of the old laws that have been enforced under the Constitution. If the Criminal Law Amendment Act had not been continued in force, there was no question of considering the effect of Article 8 (1) on it as it would be deemed to have become a death law. Article 8 (2) concerns laws to be made after the Constitution has bee enforced. This clause further shows that Article 8 (1) deals with old law that have been carried forward as the existing laws under Article

268. However, as said above, such laws have been carried forward subject to the Constitution and not absolutely.

38. Article 8 (1) provides that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by Chapter 1 (Fundamental Rights) shall to the extent of such inconsistence be void. The word 'void' has been used in the Constitution in Articles 8 (2), 143 as well as in Article 232 (4) in the same sense throughout. Provisions similar to Article 8 (1) came up for consideration before the Supreme Court in case of Mehdi Ali Khan under 1956 Constitution wherein, it was observed by Munir, C.- J. at page 412 of the report :

"That this was the sense in which the word 'void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a Fundamental Right is temporarily suspended. On such suspension being ordered the law becomes immediately operative without its being re-enacted ........?

39. There is, however, a conflicting view in the same judgment of Cornelius, J. at page 432 to say; "But the ascertainment of the inconsistency and the declaration that in consequence of such inconsistency certain provisions in the Act of 1950 were void was dependent wholly upon the existence of the firm rule, laid down as a permanent norm, in Articles 4 and 18 of the late Constitution, and the moment that, norm lost its compulsive aspect, the declaration of law by the Supreme Court, affecting the relevant provisions in the Act of 1950 was itself rendered of no effect with the consequence that the infirmity which had been laid over those provisions by reason of the judgment was immediately lifted, and the executive became once again enabled to act in accordance with those provisions free of the peril of interference by the Courts."

40. His Lordship rather thought that the void Act could come into operation on the abrogation of the Constitution by observing at page 434 "although that law regained operation in that respect upon the making of the Proclamation .........

41. The view of Cornelius, J. was supported by S. A. Rahman, J. at page 446 of the report as follows :- "With the abrogation of the Constitution, on the promulgation of the President's Proclamation, the Fundamental Rights disappeared from the field entailing the consequence that laws existing on the Statute Book were given a fresh lease of life by the Laws (Continuance in Force) Order, 1958, in their original condition and those of their provisions which were inconsistent with the Fundamental Rights, have been revived in their full vigour???.. : '

42. What we gather from the above majority view is that such provisions of existing laws as are declared void by the competent Court become operative only after the supreme law or the Constitution, as the case may be, or the Fundamental Rights disappear from the field.

43. The above view is further supported by the reason that there is no provision in the Constitution for suspending the Fundamental Rights. What can be done under Article 233 (1) is that the Legislature can make laws during the period when the Proclamation of Emergency is in force. This is to undo the effect of the first part of Article 8 (2) only a with regard to 6 out of the 20 guaranteed rights. There is no provision, however, to undo the effect of the second part of Article 8 (2) or to suspend or by-pass the effect of Article 8 (1). The result is that all the existing law to the extent of their inconsistency with the Fundamental Rights remain void and the Legislature is incapable of enacting any law in contravention of the other 14 Fundamental Rights. The way out, however, is provided in Article 233 (2) wherein the right of the aggrieved person to move a Court and the power of the Court to enforce the Fundamental Rights can be suspended by an order passed by the President to that effect.

44. The point was considered in Habiba Mani's case (P L D 1974 Lah, 153) and held that "in such cases the Fundamental Rights referred to in the order are not suspended, only the right to move the Court for the enforcement of those rights is suspended."

45. We may also refer to some observations of Yaqub Ali, J. at page 83 of Manzoor Elahi's case (P L D 1975 S C 66) in support of the above view; "We may also notice in this context that under clause (2) of Article 233, the President may by order declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1, Part I1, as may be specified in the order shall remain suspended for the period during which the Proclamation is in force. But this power is made subject to the restriction contained in the proviso to clause (2) of the preceding Article 232 viz., that nothing contained in paragraph (c) of the sub-Article which makes provision for assumption of certain powers by the Federal Government, while the Proclamation of Emergency is in force shall authorise the Government to assume to itself or direct the Governor of the Province to assume on its behalf any of the powers vested in or exerciseable by a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts. One of the provisions relating to High Courts is contained in Article 199 which has been reproduced above. The power conferred on the High Courts by this Article cannot, therefore, be suspended while the Proclamation of Emergency is in force. In other words the High Courts will continue to give directions to persons performing functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything they are not permitted by law to do or to do anything they are required by law to do. Similarly declare that any action done or proceeding taken by the said persons has been done or taken without lawful authority and of no legal effect

" Observations of my Lord Salahuddin, J. at page 105 of his judgment in the same case are; "It is true that under the aforesaid President's Order the right to move any Court for its enforcement has been temporarily suspended. But this does not suspend the operation of the Right itself, nor does it, in any way, relieve the person or authority concerned of the duty to comply with the provisions of Article 10 (2) of the Constitution. It is particularly so in the case of an agency charged with the duty of maintaining law and order." 45-A. We may here also refer to Article 8 (5) of the Constitution which provides that the Fundamental Rights shall not be suspended except as expressly provided by the Constitution. We have already seen that there is no express provision of the nature.

46. There can thus be no suspension of Fundamental Rights during the Proclamation of Emergency but only a clog on the right of an applicant to move and on the power of the Court to grant a relief for enforcing the Fundamental Rights. The wording of Article 8 (2) rather presupposes the existence of the Fundamental Rights, as the right to move a Court and the power of the Court to grant the relief, will be required to be suspended only if the rights are subsisting and available. Thus like a time-barred claim, the Fundamental Rights are there but there is no remedy available during the period of Emergency.

47. The above view is confirmed when we look at the proposition from another angle. A perusal of the Constitution would show that 10 out of the 20 Fundamental Rights are guaranteed to citizens only while other 10 are available to every person. The scheme of the Constitution regarding Fundamental Rights is that whereas Part II, Chapter I of the Constitution confers Fundamental Rights it does not provide any machinery for enforcing the same. This power is given to the superior Courts in Part VII. The power of the Supreme Court is contained in Article 184 (3) of the Constitution saying; "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." The power of the High Court is embodied in Article 199 (1) (c) which lays down; "199.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

48. What Article 233 (2) takes away temporarily is only the effect of the above two Articles but not the import of the second part of Article 8 (2) or Article 8 (1) of the Constitution, which remain intact.

49. Again even the feasibility of the revival of the void laws on the abrogation of the Constitution as held by their Lordships Cornelius and S. A. Rahman, JJ. becomes rather impossible in view of the rule laid down by the Supreme Court in Asma Jillani's case (P L D 1972 S.C 139) that the Constitution cannot be abrogated. According to the majority view of 13 Judges of the India Supreme Court who heard the case, the Parliament has no power to amend the Constitution so as to destroy the basic structure of the Constitution, including the Fundamental Rights. Reference be made to the case of H. H. K. Bharti. It, therefore, appears that the Fundamental Rights are there to exist permanently. There is no power in the Constitution to suspend them. The Courts which are under oath to preserve, protect and defend the Constitution may not contemplate any eventuality for the disappearance or destruction of the Constitution itself. The Fundamental Rights thus remain 'in force' permanently but are not operative or enforceable for the period of Emergency if an order under Article 2 33(2) of the Constitution is there to that effect.

50. It is now well established that it is the exclusive function of the Courts to declare a law as void or ultra vires under its power of judicial review. A declaration by a High Court may be binding between the parties and may also be a declaration on the validity of law to be followed by R other Courts unless set aside by a larger Bench of the Supreme Court. However, a declaration by the Supreme Court shall bind all and will be final. Therefore, the laws declared void by the Supreme Court remain void in the sense given above.

51. The next contention raised was that the two impugned notifications were in the nature of executive action and so were effective in view of Article 233(1) of the Constitution during the Proclamation of Emergency. It was, however, not disputed that Article 233(1) confers a power to legislate only in future and that too in contravention of the 6 given Fundamental Rights out of the 20 conferred by the Constitution. It was also agreed that such legislation would be of a temporary nature and would stand automatically repealed on the expiry of the Proclamation of Emergency.

52. The question thus is can such an executive action be taken in contravention of any of the Fundamental Rights other than the 6 during the Emergency? The view of Yaqub Ali, J. in Manzoor Elahi's case at page 84 of the report is as follows :

"Our Constitution thus ensures that no person shall be deprived of his life and liberty save in accordance with law and that the right conferred on every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 232. . ."

53. The above view is in line with the previous view of the Supreme Court in Mehdi Alt Khan's case that any law by an incompetent Legislature is void ab inhio and, therefore, a nullity. It can thus be safely said that no action in contravention of the Fundamental Rights other than the given 6 would be valid and the same can be set aside by the High Court on the basis of the guarantee embodied in Article 4 even if not under the Fundamental Rights.

54. Admittedly the impugned action bas been taken on the basis of any law made under Article 233(1). The two notifications were expressly issued under sections 16 and 17-A of the Criminal Law Amendment Act, 1908. It was an existing law and had been continued in force as void law under the present Constitution, as discussed above. The other proposition arising in the case thus is whether any executive action can be taken without the support or backing of a valid law? . The Emergency provisions do not arm the executive authority to ignore the rights of the citizens and others guaranteed by the Constitution, on the plea that it is acting in the aid of Emergency requirements. The additional guarantee provided to every citizen and other persons in Article 4 of the Constitution is in the following terms :

?? "4.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do,"

55. According to Salahuddin, J. in Marizoor Elahi's case at page 101: ?

Pakistan is based on the rule of law, which is embodied in Article 4 of the Constitution. The same position is reflected in some of the Fundamental Rights enshrined in the Constitution. The Constitution is framed to be followed. It creates no right and imposes no duty in vain. Article 5 of the Constitution specifically provides that obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The commandment is clear and unambiguous, and nobody can get away from or be relieved of this obligation under any circumstance. . . ? '

56. Similar provisions in Article 2 of the 1962 Constitution came up for consideration before the Supreme Court and their Lordships interpreted the same in the case of Mir Ahmad Nawaz Khan (PLD 1966 SC 257), in the following words : "Article 2 is intended to negative any claim by a Government that any category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. Claims have in the past been made by Governments that a particular act which was challenged was an act of State and was therefore not liable to be challenged. The view taken by the Courts has been that if an act was in fact an act of State it would not be subject to law, but that there could be no act of State with respect to citizens of a country and that in respect of citizens the Government has only such powers as are granted to it by the municipal law, that is, the law of the country. The acts of the Government, however, in relation to other Governments or some times in relation to nationals of other States or in relation to enemy aliens are not subject to law."

57. In the case of Manzoor Elahi apart from the observations of Yaqub Ali, J. already reproduced above, further observations of Salahuddin. J. at pages 101-102 and 108 may be reproduced below with advantage to highlight the point : " . Pakistan consists of three organs of the State-the Executive, the Legislature and the Judiciary. Each one of them is bound by the oath not only to preserve, protect and defend the Constitution but also to discharge its duties and perform its functions, honestly, to the best of its ability, faithfully in accordance with the Constitution and the law. For the Executive the oath is taken by the President; the Prime Minister and each Federal Minister or Minister of State; and the Chief Minister or Minister of a Province. For the Legislature it is taken by the Speaker of National Assembly, the Chairman of the Senate, and each Member of the two Houses, namely , the National Assembly and the Senate; and the Speaker and Member of a Provincial Assembly. For the Judiciary it is taken by each and every member of the Superior Judiciary. Each one of the organs is thus responsible for the due discharge of its responsibilities towards and under the Constitution. `Ubi jus ibi remedium' is another principle of interpretation that applies to the Constitution. Assuming that no remedy meets the eye, it becomes the duty of the Legislature to provide for the remedy and make it apparent. Remedy or no remedy, the `will' of the Constitution reigns supreme, and nobody can be permitted to flout the `will'. So far as a superior Court is concerned whenever and wherever it comes across anything done in violation of the provisions of the Constitution, it must declare such thing as void. Such a declaration cannot be in vain, for it is hardly in the interests of any Government to countenance illegality. Any omission to comply with the Constitution can also in suitable cases be remedied by a High Court under Article 199 of the Constitution. In my opinion, the power so given to a "High Court under Article 199 of the Constitution is wide enough to cover not only a case of infringement of Fundamental Rights as contained in Part 11 of the Constitution, but also to enforce the inalienable right of a citizen as mentioned under Article 4 of the Constitution which runs thus :

58. The view expressed by my Lord S. Anwarul Haq, .J. (the present Chief Justice of Pakistan) in the above case at page 147 is also given below "While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property, his right to freedom of action, and immunity from illegal restraint of any kind, yet it does not form part of Part II of the Constitution containing fundamental rights, and, for that reason, any violation of this Article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution, Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution. . ."

59. In view of the above observations of the Supreme Court, it is absolutely clear that no executive authority can take any executive action without the support of a valid law and any action taken in violation of the above rule can be struck down by the High Court under Article 199 of the Constitution as being without lawful authority.

60. As noted above Article 233(1) only refers to future legislation. The executive actions contemplated therein, therefore, necessarily concern the future legislation and not any of the void existing laws. Secondly the Constitution prohibits under Article 8(2) to make any legislation in violation of Fundamental Rights and also does not permit any legislation with the exception of the 6 Fundamental Rights mentioned under Article 233(1) it cannot be said that tie executive authorities can achieve the same result by purporting to take executive actions. In any case, observed by their Lordships of the Supreme Court in Manzoor Elahi's case the guarantee under Article 4 is quite separate and distinct from the Fundamental Rights and as no inroads have been permitted, even during Emergency into that provision, by any of the constitutional provision, the said guarantee cannot be allowed to be flouted. The executive authority, therefore, must rely on some valid law in order to support its action.

61. The present case is placed at a better footing. The so-called executive action in the form of notifications had been published in this case on a date when no order under Article 233(2) was in the field. As discussed above, there was no law in operation authorising the respondents to have issued those notifications either. The law under which those two notifications were issued is admittedly inconsistent with the Fundamental Rights No. 17 and was void and so unenforceable. It, therefore, was not available for any executive action in the light of the discussion already made. It was never revived so as to be operative once again on the issuance of the Proclamation Emergency. The two notifications, therefore, could be scrutinized by the High Court and we respectfully agree with the learned Single Judge that they were issued without lawful authority and are of no legal effect.

62. In view of our findings that the two notifications were void, and, therefore, of no legal effect, we do not consider it necessary for us to go into the other question whether there was material on the record to justify the forming of opinion by the respondents to declare Freemason as an unlawful Organization? It has been observed by the learned Single Judge that a statement had been made before him, on behalf of the respondents, that no Officer in the Interior Ministry had seen or read the books on the basis of which the Organization had been declared as unlawful. The learned counsel for the appellants after our much insistence and on being given number of opportunities for the purpose, procured some of the books. We have gone through them but do not think it useful to comment. Suffice it to say that as the respondents themselves did not go through those books, to form their opinion, we need not substitute our opinion for it. This circumstance, however, proves that the discretion vesting in the respondents had not been properly exercised. For the reasons given above, we do not find any merit in this appeal and the same is dismissed. The appellants shall pay the costs. S. Q.??????????????????????????????????????????????????????????????????????????? Appeal dismissed.