P L D 1957 (W (PLP)

CONSTANTINE, J.

Article 145 of the Constitution, and Acts XIXVI of 1956 and XIX of 1957, read as follows .- Article 145.-"Parliament may, after ascertaining the views of the Provincial Assemblies and taking them into con sideration, by Act provide whether elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or separate electorate, and may in any such Act provide for all matters incidental and consequential thereto". Act XXXVI of 1956 :-"This Act of the National Assembly of Pakistan received the assent of the President on the 30th October 1956, and was published for general information in the Gazette, Extraordinary 31st October 1956. Whereas it is enacted in Article 145 of the Constitution that Parliament may, after ascertaining the views of the Pro vincial Assemblies and taking them into consideration by Act provide whether elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or separate electorate and may in any such Act provide for all matters incidental and consequential thereto ; And whereas those views having been ascertained and taken into consideration it appears to Parliament that pro vision should be made by Act that the elections aforesaid should beheld in respect of certain areas on the principle of joint electorate and in respect of other areas on the principle of separate electorate ; It is hereby enacted as follows.--

1. Short title :-This Act may be called the Electorate Act, 1956.

2. Application :-(1) It applies to elections under Part VIII of the Constitution. (2) For the avoidance of doubt it is hereby declared that nothing in this Act applies in respect of the provisions made in clause (2) of Article 223 and clause (3) of Article 225 of the Constitution for the filling of a casual vacancy in the National Assembly or a Provincial Assembly functioning under either Article.

3. Principle of electorate :-(1) Elections to the 'National Assembly shall be held- (a) as to constituencies in East Pakistan and candidates for election for those constituencies on the principle of joint electorate ; and (b) as to all other constituencies and candidates for election for those constituencies, on the principle of separate electorate. (2) Elections to the Provincial Assemblies shall be held in East Pakistan as provided in clause (a) of the preceding subsection, and in West Pakistan as provided in clause (b) of that subsection.

4. Interpretation.--Except in subsection (2) of section 2, references in this Act to the National Assembly and the Provincial Assemblies snail be construed as references to those Assemblies under Article 44 or Article 77 of the Constitution, as the case may be". Act XIX of 1957.-"An Act to amend the Electorate Act, 1956. Whereas it is expedient to amend the Electorate Act, 1956, for the purposes hereinafter appearing ; It is hereby enacted as follows :- 1. (1) This Act may be called the Electorate (Amend ment) Act, 1957. (2) It shall come into force at once.

2. In the Electorate Act, 1956, for section 3, the following shall be substituted, namely :- "

3. Elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate". The petition maintained that by Article 145 the Consti tuent Assembly delegated the duty of providing by Act for the application of a single principle of electorate (either joint or separate, but not a combination of the two). Hence Act XXXVI of 1956 was ultra vires of Parliament. It also main tained that the Amending Act (XIX of 1957) was invalid in that (a) an amendment of a void law is inoperative, (b) an amendment by a simple majority vote violated Article 216, (c) the delegated power to legislate on this subject was exhausted by enacting Act XXXVI of 1956, (d) the Pro vincial Assemblies should have been, but were not, consulted before enacting the second Act. The petition then at length dealt with the political right to separate representation, no arguments were directed to this aspect. The first question is what is conferred, delegated or enjoined upon Parliament in Article

145. A mere power which, according to the Attorney-General, Parliament as its option may or may not exercise ? A delegated power which according to Mr. Brohi's first alternative argument is to be exercised once and once only ? Or not a power at all, according to Mr. Brohi's second alternative argument, but merely a limitation upon Parliament's powers of legislation on the topic of elections which stem from Article 144 and entry 17 in the Federal list ? I have no doubt that the answer is that it is a power and, at least so far as its first exercise a power coupled with a duty. The Attorney General argued; "Suppose Article 145 were missing from Part VIII ; Parliament's legislative powers under the rest of the part were sufficient to provide for elections on the principle of joint electorate. Hence it was purely a matter of discretion whether an Act should be passed under Article 145 and only necessary if Parliament wished to have the principle of separate electorate anywhere". This argument reduces Article 145 to a proviso that Parliament, after consulting the Provincial Assemblies, might introduce the principle of separate electorate. But in the first place the Article directs or commands prior consultation of the Provincial Assemblies before enacting the principle of joint electorate or seperate electorate, and not, as one would expect from the argument, before enacting the principle of separate electorate. Secondly, it is most inartistic in succeed ing Articles to use the words "may by Act provide" in the first Article (144) to create a power coupled with a duty, and in the second Article (145) to create a mere power. Thirdly and most important, when one reads Part VIII as a whole (as one must) the scheme clearly is that before constituencies are delimited and electoral rolls prepared, a decision as to the principle of electorate must be made, and this decision was F to be made by Parliament after consulting the Provincial Assemblies. As regards Mr. Brohi's argument that no power is con ferred, the words "may by Act provide" are apt to confer a power, and again I decline to impute such inartistic use of language to a draftsman that he should use the same words in succeeding articles in the first to create a power, and in the second to impose a limitation upon a power conferred aliunde. Mr. Brohi confessed he had no authority for the pro position that a delegated power can be used once and once only. His argument that a construction of Article 145 spewed that the power was to be used once only is contrary to section 14 of the General Clauses Act, which Article 219 requires us to apply for the interpretation of the Constitu tion. I see no reason to infer an intention restricting the L use of the powers to a single occasion, in fact, it seems appropriate that Parliament should be given the power to make a change in the principle if it so thinks fit. Further-more for reasons given below I hold that Parliament is not a delegate. The Attorney-General has argued that the requirement of consultation is directory and not mandatory. Normally where an Act provides that a thing shall be done in a certain manner or subject to a certain condition, then the Courts presume a prohibition against doing the thing except in that manner, or except after fulfilling that condition. But on the ground of inconvenience or injustice exceptions have been made. For instance, where a public duty should be done in a certain time the provision as to time has been held to be directory and not mandatory as in Article 141 ; for obviously a bye-election is better late than never. No such considera tions apply here. The Provincial Assemblies have a right to be consulted, and if not consulted have no redress except that an Act passed without consultation be declared void. I thus come to the most difficult problem in the case, When Parliament has once by Act provided under Article 145, must it again ascertain the views of the Provincial Assemblies before again by Act providing whether elections shall be held on the principle of joint electorate or separate electorate ? (Curiously enough, Mr. Brohi's argument that the Act of 1956 is ultra vices, if correct, would answer the question adversely to his clients for if Parliament in the Act of 1956 provided something other than what Article 145 requires it to provide, then the consultation supports the Act of 1957, being the first exercise of its powers under Article

145. The wording of the Article is ambiguous. It might mean, as Mr. Brohi contends, that fresh consultation must precede fresh legislation of Parliament. On the other hand it might mean, as the Attorney-General contended, that Parliament, once it has ascertained and considered those views, has satisfied the condition precedent to its own legislative action. The Attorney-General argues that piecemeal Acts could onviously be passed : the reply is that the ascertainment of views would then be relevant to that part of the subject dealt with by the piecemeal Act, but not to a further Act, upon the same part of the subject. The Attorney-General argued that it would be absurd to require fresh ascertainment of views if Parliament wished to correct its own mistake within, say, a month : on the other hand, it is argued that the provision is permanent and that it would be equally absurd that 10 years hence Parliament could again legislate on the subject without again ascertaining views on this part of the arguments it is to be observed that the life of a Provincial Assembly is limited to 5 years, and I think that the words "Provincial Assemblies" in Article 145 exclude dissolved Assemblies, and refer to existing Assemblies. I think the true approach is the following. The duty of Parliament is to ascertain and consider the views of the Provincial Assemblies. Thereafter its legislative discretion within the scope of Article 145 is unfettered : it may agree or disagree with those views wholly or in part, and it is at liberty to legislate as it thinks fit, whether it gives effect to those views or not. If then Parliament has such a large discretion conferred upon it, it would appear more in keeping with the intention of the Constituent Assembly that Parlia ment should have discretion to change its own views, even already enacted, and to enact its changed views without again consulting Assemblies which it has already consulted. Mr. Brohi relies on a passage in Crawford's Construction of Statutes (page 172) that one school of judicial thought in America holds that a totally void law having no existence is incapable of amendment. We unfortunately have not seen the original authorities. But we consider that the Constituent Assembly intended that principles of law as settled in this country would be applied in interpreting the Constitution, if still applicable, "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course, do nothing beyond the limits which cir cumscribe those powers. But, when acting within those limits, it is not in any sense an agent or delegate of the imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts, of justice, when a question arises whether the prescribed limits have been exceeded must of necessity determine that question and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirma tive words which give the power, and it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or enlarge con structively those conditions and restrictions". (Queen v. Burah) (5 I A 179). That considerations of jurisprudence or of policy would amount to constructive enlargement appears from Benoarilal's case (72 I A 57). These cases and Hodge v. Queen (9AC117) were cited with apparent approval by the Federal Court in Sobho Gyanchan dani's case (PLD1952FC 29), and I see no reason why the principles laid down should not be applied. It was in this case a pure matter of legislative procedure whether Parliament should pass a totally fresh Act or pass an amending Act to achieve precisely the same legislative result, and we see nothing in the Constitution to prevent Parliament from adopting whichever course it thought fit. The above cases cited also dispose conclusively Mr. Brohi's argument that Parliament is a delegate in the exercise of its legislative functions. If neither the Indian Legislature of 1869 or the Legislature of Ontario was an agent or delegate of the imperial Parliament, which could, at least in theory, have ended their lives and could have annulled their legisla tion by its own legislation, it appears absurd that Parliament, which can alter the Constitution and whose legislation cannot be superseded by any other legislative body, should be the agent or delegate of a defunct Constituent Assembly. It is not necessary for us to consider whether the Act of 1956 was or was not void, since the Legislative result obtained by the Act of 1957 is intra vires of Parliament. Mr. Brohi abandoned the ground of violation of Article 216 in argument, and with good reason in my opinion. Having decided against the petition on its merits, we informed the Attorney-General that he need not argue on the question whether the petition was maintainable. Regard being had to the complicated and controversial nature of the interpretation of Article 145 we think no order as to costs should be made. The petition is dismissed. WAHIDUDDIN, J.

I entirely agree with the order proposed by my learned brother Sir George Constantine. It would, however, be proper to express my views on certain questions that were raised at the Bar by the counsel for the parties during the course of the hearing of this petition. At the outset I will note that the learned counsel, for the parties did not address us on the question whether the minorities in Pakistan have any special right with regard to the separate system of electorate. Such allegations are therefore not relevant and have not been considered for the decision of this matter. Several grounds are taken in the petition in which the amending Acts XXXVI of 1956 and YIX of 1957 were assailed. Out of them the counsel for the petitioners did not address and press the ground mentioned in paragraph 8 (b) and therefore it is unnecessary to express any view on it. The most important grounds on which Mr. Brohi, the learned counsel for the petitioners, assailed Act XXXVI of 1956 was that the National Assembly being a delegate of the Constituent Assembly exercised its power unconstitutionally under Article 145 of the Constitution in so far as it embodied a composite principle instead of a single electorate principle. He further contended that the Parliament could, under Article 145, decide either that elections to the National Assembly and the Provincial Assemblies be held on the principle of joint electorate or it could decide that elections to the National Assembly and the Provincial Assemblies be held on the principle of separate electorate. It was urged that the impugned Act was repugnant to the provisions of the Constitution in so far as it provided that elections to the Provincial Assembly of East Pakistan be held on the principle of joint electorate and to the Provincial Assembly of West Pakistan on the principle of separate electorate, and at any rate, the provision of composite system of electorate for the elections of the members of the National Assembly was not warranted on the language of the said provisions of the Constitution. According to him this decision of the National Assembly was not in consonance with the powers conferred under Article 145 of the Constitution. In the alternative, Mr. Brohi argued that assuming that his contention in respect of Provincial Assemblies was not tenable, even then, the said enactment was ultra vices in so far as it provided composite system for the election of the Members to the National Assembly viz., that elections from the constituencies in East Pakistan or to be on the principle of joint electorate, and as to all other constituencies on the principle of separate electorate. It was admitted before us that Article 145 was incorporated in the Constitution as there were wide differences of opinion amongst the members of the Constituent Assembly on this important question and they were not in a position to take any decision on it. They left this matter for the decision of the Parliament. An analysis of Article 145 of the Constitution shows that the Parliament was to decide whether the elections to the various Assem blies vie. West Pakistan Provincial Assembly, East Pakistan Provincial Assembly and the National Assembly should be held on the principle of joint electorate or separate electorate. It was certainly within the competence of the National Assembly to come to the conclusion that the elections for all the three Assemblies will be held on the basis of joint electorates and similarly it was open to it to decide that the elections to these three Assemblies will be held on the' principle of separate electorates: It was also open to the National Assembly to decide that the election to the West Pakistan Provincial Assembly will be held on the principle of separate electorate and election to the East Pakistan Provincial Assembly on the principle of joint electorate. The Parliament could also decide that the election to the National Assembly will be held either on the principle of joint electorate or separate electorate. The language of Article 145 leaves no doubt in my mind that it was not open to the Parliament to decide that the election of any one of the Legislatures should be held both on the principle of separate and joint electorates. Their decision about the elections of the members to the National Assembly under the impugned Act is certainly ultra vires and cannot be supported on a reasonable construc tion of the language of Article

145. The learned Attorney-General referred us to a decision of the Dacca High Court in A. K. M. Fazlul Qader Chowdhury v. Government of Pakistan aced another (P L D 1957 Dacca 342), and relied on the following passage in support of his contention :- "The learned Attorney-General also is of opinion that the words of Article 145 are plain enough but he has put a different construction on the same to show that the impugned Act in no way is ultra vires of Article

145. He has contended that the Constituent Assembly, instead of itself deciding what principle of electorate, should be adopted for the National Assembly and the Provincial Assemblies of the two wings, delegated its power to the Provincial Assemblies to come to a decision thereon and the National Assembly after ascertaining those views, was by Act to provide that elections to the National Assembly and the Provincial Assemblies shall be held on the principle of joint electorate or separate electorate. He has argued that after ascertaining the views of the Provincial Assemblies the National Assembly could not have enforced its own views regarding the principle of electorate on either of the two wings. Article 145 uses the words "joint electorate or separate electorate" and not the words "Either joint electorate or separate electorate". Three different elections are contemplated by the Article and the words "joint electorate or separate electorate" are used, the one not excluding the other. The meaning of Article 145 is that the Constituent Assembly instead of deciding what principle would operate in regard to the elections to East Pakistan Assembly, West. Pakistan Assembly and the National Assembly left the question to be decided by an Act. to be passed by the Parliament. The rights of the National Assembly were co-extensive with the rights of the Constituent Assembly and, by the passing of the impugned Act, the National Assembly gave effect to the wording of the Article and to the powers delegated to it by the Consti tuent Assembly and did not go beyond the delegated powers. Inasmuch as at the time there was controversy regarding the principle of election to be adopted in the two wings, it was deemded fit, therefore, to delegate that power to the National Assembly to pass an Act after ascertaining the views of Provincial Assemblies. If there was only one Assembly, the interpretation sought to be placed on the words of Article 145 would have some meaning. We have to consider elections to three Assemblies each of which was to be on the basis of joint or separate electorates. If the National Assembly had4orced its views and passed an Act providing for one principle of electorate in both the wings after ascertainment of the views of the Provincial Assemblies that would have amounted to a denial of democracy which the Constitution envisages. Inspite of the fact that the Provincial Assembly in East Pakistan wanted elections to be on the basis of joint electorate, the National Assembly could not force its views and enact a law contrary to the opinion of the Provincial Assembly. The question before us may be explained by an example : A tells B to give X, Y and Z apples or pears. B will give X, Y and Z apples or pears according to what they want. X may take apples, Y may take pears and Z may take apples. It does not mean that A asked B to give X, Y and Z either apples or pears. Similar is the case before us. Article 145 contemplates the holding of elections to the National Assembly and the Provincial Assemblies on the principle of joint electorate or separate electorate 'after ascertaining the views of the Provincial Assemblies and not on the principle of either joint electorate or separate electorate, as contended on behalf of the petitioner". And then at page 361 :- "The above is our considered view regarding the inter pretation of Article

145. That view is independent of any other consideration and finds full support by resorting to the opinions and motives of the legislators. In some instances the Courts have referred to debates of the members of the legislatures particularly where such debates are available when the law is being construed". And then at page 362 :- "The first preamble to the impugned Act is identical with the words in Article

145. It is significant that the same members responsible for having the Constitution of the country passed including Article .145 sitting as the National Assembly interpreted Article 145 in the manner that they have done by enacting the impugned Act. If the intention of the Constituent Assembly was to have one system of electorate throughout Pakistan, be it joint or separate, the members of the Constituent Assembly sitting as members of the National Assembly, would have embodied that principle clearly in the Electorate Act when it was passed. This also strengthens the opinion we have expressed above, On a consideration of the arguments advanced before us on the wording of Article 145, we are satisfied that the' plain meaning of Article 145 is that the Constituent Assembly instead of deciding what principle should operate in regard to election to the East Pakistan and West Pakistan Assemblies or to the National Assembly left it to be decided by an Act to be passed by the National Assembly. The power was delegated to the National Assembly to pass an Act after ascertaining the views of the Provincial Assemblies providing for elections to the three Assemblies to be held on the principle of joint electorate or separate electorate and not on the principle of either joint electorate or separate electorate. The Article left to the Assemblies concerned to arrive at a decision as to whether they would have elec tions on the basis of joint or separate electorate and that view has been incorporated in the impugned Act." With all respect to the learned judges of the High Court of East. Pakistan, there is nothing in the language of Article 145 to show that it was left to the Provincial Assemblies to decide the system on which the election to these legislative bodies should be held and the National Assembly was merely to adopt that view in the proposed enactment. The learned Attorney-General has also not supported this view before us. A perusal of the language of Article 145 clearly shows that the Parliament, before deciding whether the elections to the two Provincial Assemblies and the National Assembly should be held on the principle of separate electorate or joint electorate, was to ascertain the views of the Provincial Assemblies on this question but they were eventually to decide the system on which the future elections were to take place. It was open to them to accept the views of the Provincial Assemblies or to disregard them and arrive at a different conclusion. Certainly in arriving at a different conclusion, there would not have been denial of Democracy as envisaged in the Constitution. The Parliament in deciding this question was acting as a sovereign body and was fully entitled to enact any law of its own liking. This is what was actually done when the National Assembly later on amended Act XXXVI of 1956 and introduced a uniform system of joint electorate for the elections of the three Assemblies. Mr. Brohi made a feeble attempt to argue that the language of Article 145 of the Constitution does not permit the Parliament to introduce different system of electorate for the election of three Assemblies. This contention cannot be supported on the language of the Article and there is no such limitation on their legislative power. The Parliament was to take decision in respect of the three Assemblies. They could take that decision by one enactment or by separate enactment and in respect of each of the three Assemblies different and separate decision could be taken. The learned counsel for the petitioners has failed to draw our attention to any fetter imposed on the powers of the Parliament in this respect. On a careful consideration of the argument advanced before us, I am further of the view that the Parliament on the language of Article 145 was to provide by an Act whether election to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or in the alternative on the principle of separate electorate. They had to choose out of the two systems. The learned Attorney-General strenuously argued that in Article 145 "or" should be read as "and" and in support of his contention relied on the observations made in the aforesaid Dacca decision. The learned judges in that case at one place observed: "Article 145 contemplated the holding of elections to the National Assembly and the Provincial Assemblies on the principle of joint electorate or separate electorate after ascertaining the views of the Provincial Assemblies and not on the principle of either joint electorate or separate elector ate, as contended on behalf of the petitioner". The priciciples of interpretation of statutes enunciated in that case are not applicable to the question involved in this matter. The conclusions arrived at in that case are influenced more on the ground of the manner in which the impugned enactment was legislated by the Parliament and the observa tion of one of the Central Ministers at the time of the discussion of Article 145 in the Constituent Assembly. With due deference approach is not permitted in inter preting the language of a statute which is not in ambiguous language. The language of Article 145 is plain. The ambiguity will only, arise if the interpretation sought to be given is adopted. I am unable to persuade myself to share the views taken in the Dacca Judgment. The word "or" has been the subject-matter of controversy in several judicial pronouncements and the preponderance of 0 authority states that "or" prima facie has oily an alternative significance. Parke, B. in Beenlen v. Hockin ((1846) L J R Common Law 49 at 51) observed :- "We are all of opinion, that I the exception was well founded, and that the direction of the learned Judges was not correct. The word "or", in its ordinary and proper sense, is a disjunctive particle, and the meaning of the term 'soft or orgazine', is properly either one or the other; and so it ought to be construed, unless there be something in the context to give it a different meaning, or unless the facts proved in evidence, with reference to which the patent must be construed should show that a different construction ought to be made". In Ghanshamdas Nebhandas v. Mst. Vishindevi and others (5 S L R 259) it was held ;- "The word 'or' ordinarily connects a series of words, marks alternatives and gives choice either alternative. The words 'if he has been arrested or imprisoned' between 'or' and 'where he is in custody' in the last line of section 6 (2) of the Provincial Insolvency Act, merely limit or explain the application of the last alternative. We see no reason to suppose that the word has not been used in its ordinary sense throughout the subsection." In Kedar Nath Sadhukhan and others v. Madhu Sudan Das and others (A I R 1923 Cal. 682.) it was held: "The word 'or' is an alternative word. It is, however, not always disjunctive and is sometimes interpretative or expository of the preceding word. But no instances can be found where the term 'or' is used neither as alternative nor as synonmous. But this does not mean that "or" cannot be construed to mean "and". The power of Court to do so cannot be denied butt' such substitution is only authorised when from reading the Act as a whole it becomes apparent that the words used are mistakenly used and perhaps where it is needed to con form to the clear intent of the legislative body. Scrutton, L. J. in Green v. Premier Glynrhonwy Slate Company Limited ((1928) 1 K B 561) at page 568 observed :- "You do some times read 'or' as 'and' in a statute. In Brown & Co. v. Harrison ((1927) 43 Times L R 394) MacKinnon, J. read 'or' as `and' in the Carriage of Goods by Sea Act, 1924, and his decision was confirmed by this Court. (1927), 43 Times L R 633). But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. In XIII Appeal Cases 595 at page 603, Lord Halsbury observed :- "In the first place I know no authority for such a pro ceeding unless the context makes the necessary meaning of 'or' 'and', as in some instances it does; but I believe it is wholly unexampled so to read it when doing so will upon one construction entirely after the meaning of the sentence, unless some other part of the same statute or the clear intention of it requires that to be done, as in the case of Fowler v. Padget (7 T R 509), where the Act of Jac. .I., C. 15, made it an act of bankruptcy for a trader to leave his dwelling-house to the intent or whereby his creditors might be defeated or delayed. These words if construed literally would have made every trader commit an act of bankruptcy if he casually left his dwelling house and some creditor called for payment during his absence. It may indeed be doubted whether some of the cases of turning 'or' into `and' and vice versa have not gone to the extreme limit of interpretation, but I think none of them would cover this case. Here, not only is 'or' changed into 'and', but the whole sentence is practically struck out, since the construction insisted on reads it thus (leaving out the words altogether) : 'Vessels arriving in ballast, but trading outwards, and also vessels built within the port of Liverpool, shall be liable to the rates payable ill respect of the most distant of all the ports to which they shall trade outwards'. It may be said that the words 'but trading outwards', as above given, are unnecessary also ; but though I will not say that in very strict construction they would not be implied, yet they form a natural antithesis to vessels arriving in ballast and departing in ballast. If however. I am right in saying that these vessels are neither trading inwards nor in ballast, then the change of 'or' into `and' or the striking out of the whole sentence, actually produces a casus omissus which seems to me, as it did to the two Lords Justices, entirely inadmissible." Lord Fitzgerald in the same case at page 607 observed :- "Secondly, 'also vessels built within the port of Liverpool'. The respondent's vessel was not such. Thirdly 'or trading outwards'. She was a vessel trading out wards, but the respondents contend that 'or' must be read, 'and', and the provision would run thus 'and also vessels built within the port of Liverpool and trading outwards', so that the respondents' vessel would not come within this portion of the charging definition of the section. But the word is 'or', and has a sensible meaning in its position, and why should we take the great liberty of blotting it out and substituting another word, the result f which might be to create a substituting omissus?' We ought not to create a casus omissus by interpretation save in some case of a strong necessity. The respondents con tended that it was necessary to take this strong step in order to prevent a contradiction with a similar passage to be found subsequently in the same section, where the word used is 'and', but I have been unable to discover the contradiction or the repugnancy. The passage alluded to is at the conclusion of the section, thus : "Vessels arriving in ballast and trading outwards, and vessels built in the port of Liverpool and trading outwards, and having paid the rates payable on such trading outwards, shall afterwards on trading inwards be liable to the rates payable on vessels trading inwards'. But in this passage the words `and trading outwards' are essential to provide for the eventuality and give it proper effect, and are not in the least in contradiction with the words 'or trading outwards' or the provision in the earlier part of the section." Thus, there must be some compelling reason, or where it appears to be consistent with the meaning implied by the context to read the word "or" as "and" in Article 145 of the Constitution. The contention of the learned Attorney-General that in Article 145 the word "election" in respect of all the Assemblies has been used in plural and this empowered the Parliament to provide different systems of electorate for the election of every single constituency of the respective legisla tures is not sound. The Parliament was only called upon to determine the elections of the respective Assemblies as a whole and not with respect to each constituency. If that would have been the intention, it could have easily been' stated in the Article itself. Constitutional provisions are always construed in a liberal manner but if the words of an Act admit of two interpretations and one interpretation leads to an absurdity and the other does not, their the Courts in order to preserve the usefulness of the Act will accept a construction which does not lead to absurdity. In the context of Article 145 this meaning cannot be given to the word "elections". Elections in plural has been used R because it refers to the National Assembly and two Provincial Assemblies. It will hold that the language of Article 145 does not permit a composite system of electorate for any of the three Assemblies. This question, however, is of an academic character in view of the later enactment that was passed by Parliament in April 1957, known as Act X IX of 1957. In this enactment Parliament has amended the Dacca Act of 1956 by substituting the following for section 3: "

3. Elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate." Mr. Brohi has challenged the validity of this enactment inter alia on the grounds (a) that the Parliament by means of the impugned Act has attempted to amend a void law ; (b) that the power to amend the Electorate Act of 1956, by means of a simple majority vote, is contrary to the Consti tution ; (c) that assuming the Electorate Act of 1956 was a valid piece of legislation, the power of the Parliament to act under Article 145 got exhausted when that Act, that is the Electorate Act of 1956, was passed. Article 145 contains no provision for the exercise of the power reserved to the Parliament as a delegate of the Constituent Assembly from time to time. The legislative power of the Parliament as a delegate was thus exhausted when the Electorate Act of 1956 was passed and it would not validly be assumed or exercised by the same delegate under the pretext or garb of the ordinary amending power of Parliament ; (d) that assuming the ordinary power of the Parliament to amend the Electorate Act of 1956 was available, the impugned Act being an amendment to the constitutional legislation could only have been passed subject to the conditions visualised by Article 216 of the Constitution ; and finally (e) that Article 145 had provided that the principle of electorate could only be determined "after ascertaining the views of the Provincial Assemblies and taking them into considera tion". These views were taken and considered at the Dacca Session of the Parliament when the Electorate Act of 1956 was passed. No further views were taken from the Legisla tures of the Provinces and the Parliament could not interfere with a decision solemnly taken after ascertaining the views of the Provincial Assemblies and taking them into considera tion by reaching a result different from the one it counte nanced during the October Session at Dacca. For the purpose of amending the Electorate Act of 1956, the views of the Provincial Legislature ought to have been taken and considered in the manner provided by Article 145 of the Constitution. This having not been done, the amending Electorate Act as it now stands is unconstitutional. It will thus be seen that the learned counsel for the petitioners has again taken up alternative pleas to challenge the above mentioned enactment. The learned counsel, however, did not address us on Article 216 referred to in grounds (b) and (d) mentioned above, and therefore it is unnecessary to express our opinion on the question, raised in the said grounds. The most important question for determination in this matter is whether Parliament was entitled and empowered to amend the enactment known as Act XXXVI of 1956 without ascertaining the views of the Provincial Assemblies afresh on the question under consideration. Mr. Brohi contended that before the power conferred under Article 145 could be exercised by Parliament, it was a condition precedent that the views of the Provincial Assemblies should have been ascertained and if these views were not ascertained, then any enactment or any decision on the question of electorate will be unconstitutional and repugnant to the provisions of Article 145 of the Con stitution. According to the learned counsel, this con dition precedent was of a mandatory character and it cannot be treated merely as a directive. The learned Attorney-General, on the other hand, contended that the condition of ascertaining the views of the Provincial Assemblies was merely of a directory nature and disregard of this direction will not invalidate any decision or enactment passed under Article 145 with respect to the electorate issue. He invited our attention to the observations made by their Lordships of the Supreme Court in Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 S C (Pak.) 46):-- "Even if it is considered that Article 141 does not apply the fact that the election was held beyond the time fixed in that Article does not invalidate it. As has been pointed out by Wahiduddin, J. in the judgment under appeal the Article is directory and the following passage quoted by him from Maxwell on the Interpretation of Statutes is a complete answer to the argument of Mr. Mahniud Ali on this point :- On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such pres criptions seem to be generally understood as mere instruc tions for the guidance of Government and those on whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does riot affect the validity of the act done in disregard of them. It has often been held, for instance, when an act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen 4 (C. 7) which required justices to try rioters 'within a month' after the riot, was held not to limit the authority of the justices to that space of time, but to render them liable to a penalty for neglect. To hold that an act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list riot delivered till a latter day invalid, would, in effect, put it in the power of the person charged with .the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance, (10th Edition Maxwell on Interpretation of Statutes). The object of fixing a time limit in Article 141 was to secure the prompt holding of by-elections. This was done obviously because in the past there were several instances of casual vacancies remaining unfilled for a long time. If the provision fixing the time limit is not considered as merely directory then the very object of fixing the limit would be defeated for if once it is to be found that an election held beyond time is not valid then it would help the persons who are interested in not holding the by-elections and cause prejudice to the right of the people of the area concerned to have their representatives in the Assembly." These principles, however, cannot be applied to the condition precedent laid down in Article 145 of the Constitution. It is a well-established principle of interpretation of statutes that there is no general rule as to when an enactment should be regarded as absolute and when merely as directory. Each statute has to be considered as a whole, regard being had not only to its language but also to the other objects and purposes for which it was enacted ; that if the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, then those requirements in all cases are absolute and the neglect to obey or fulfil them exactly would invalidate the enactment. This rule has also been extended to statutes expressed in affirmative language vide Nazir Ahmad v. King-Emperor- (A I R 1936 P C 253 (2)). The condition precedent, in my opinion, was of very great importance because the Parliament was to take decision on the issue of electorate after taking into consideration the views expressed by the two Provincial Assemblies.. The views of the Provincial Assemblies were to play a great part and influence the decision of the Parliament, and the ascertainment of their views cannot be treated as merely directory. I am fortified in this view by the observations of their Lordships of the Supreme Court in a decision in Special Reference No. 1 of 1957 (P L D 1957 S C (Pak.) 219 at p. 249). Munir, C. J., while discussing the scopes of Article 145 observed :- " The question, however, is whether the framers of the Constitution, ever intended that no law under Article 145 need be passed and that the elections be held on the principle of joint electorate? The answer to it must be in the negative for the simple reason that the question whether electorates should be joint or separate had for years past; perhaps ever since the establishment of Pakistan, been a keenly controversial issue which had actively agitated' the minds of the politicians and opinion on the question was so sharply divided that even at the time of the framing of the Constitution, the Constituent Assembly found itself unable to decide whether elections to the new Assemblies were to be on the system of joint or separate electorates, and left it to Parliament subsequently to determine the issue. It must, therefore, be assumed, that the Constituent Assembly did intend that Parliament was to determine whether elections were to be held with joint or separate electorates. It is obvious that if the intention was that the issue of joint or separate electorate should be determined by Parliament, no constituency could be delimited by the Delimitation Commission and consequently no electoral rolls for the constituencies determined by that Commission could be prepared before that question had been decided. It was only when action under Article 145 had been taken that the Delimitation Commission could take in hand the duty of delimiting constituencies and it was after such constituencies had been delimited that the Election Com mission could undertake the work of preparing electoral rolls for these constituencies Mr. Brohi further invited our attention to an earlier observation where their Lordships observed "that under Article 145 such Act could only be passed after the views of the Provincial Assemblies had been ascertained and considered by Parliament." I have no doubt in my mind that before Parliament could take decision on the issue of electorates, the ascertainment of the views of the Provincial Assemblies was an essential condition precedent for the purposes of passing an enactment. This, however, does not settle the question involved in this matter. The question still remains whether it was obligatory on the Parliament to ascertain the views of the two Provincial Assemblies even if they were to amend the enactment for purposes of removing any ambiguity or were to change their decision shortly after the first enactment was passed and before any elections have taken place under the first enactment. It was admitted at the Bar that both the Provincial Assemblies and the National Assembly, at the time of the impugned legislation consisted of the same members and that there was no likelihood of the two Pro vincial Assemblies taking a different decision on this question. In my opinion, in such circumstances, it was not at all necessary for the Parliament to obtain the views of the same Assemblies on the same question on which they have already expressed their views. The suggestion to obtain their views once again would amount to nothing less than sheer waste of time and will lead to irrational and unfair) consequences. Mr. Brohi contended that Article 145 is a permanent provision in the Constitution and therefore whenever the Parliament wants to change a decision it ,was necessary for them to obtain the views of the two Provincial Assemblies on the question of the principle of electorate to be applied in the elections to the three Assemblies. This is correct, but the question is whether the views of the same Assemblies, who have already expressed their views on the question under consideration, should be obtained over and over again. In my opinion, this argument is fallacious in so far as it will make the ascertaining of the views, even after a day for correcting a mistake, necessary. I don't think that was the object for which the condition precedent for ascertaining the views of the Provincial Assemblies was incorporated. It is a well establishsed principle of law that in construing (the particular words in a statute, regard must always be had T to the object, the purpose and the reason for which the) condition precedent was laid down. The meaning of the, words of a statute is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used arid the object to be attained, and if one construction would be effectual for obtaining the object, while the other would not, the words ought to be construed as far as possible in the way in which they carry into effect the purpose and object of the statute. Now what was the object of ascertaining the views of the Provincial Assemblies ? Admittedly in the first instance to decide the system on which the elections of the three Assemblies for the first time to be constituted under the Constitution, should be held. The Dacca Act and the amending Act was legislated fur the same purpose and as long as the elections are not held the Parliament was entitled to amend and change their decision, The two Provincial Assemblies had expressed their opinions on this burning topic before the matter was taken up by the Parliament in 1956 at the Dacca Session. The West Pakistan Provincial Assembly had expressed its view that the system of electorate for the three Assemblies should be separate electorate while the East Pakistan Provincial Assembly opined that the system of electorate should be joint. There is nothing before us to show that the two Provincial Assemblies have changed their views on this question or were likely to express themselves in a different manner. At least if that was so, then it would have been very easy for them to do so before the matter was taken up by the National Assembly in April 1957. I am not inclined to give the condition precedent such a narrow construction as would frustrate the object and the circumstances under which the Article was introduced. On this ground the impugned Act cannot be successfully challenged. The other argument of Mr. Brohi that the power con ferred on the Parliament under Article 145 was conferred as a delegate of the Constituent Assembly and this power having been exercised once should be treated to have exhausted, and therefore the Parliament was not entitled to make another enactment on this question, is also devoid of all force. In my opinion the power conferred on the Parliament was not conferred in the capacity of a delegate. Like many other powers conferred on the Parliament this power was also conferred by the framers of the Constitution on the Parliament. The Parliament under Article 145 was empowered to decide and legislate on this particular question Y by means of an Act. It will be useless for me to point out the innumerable decisions on this question that where a sovereign body confers any power on any other legislative authority, then such power, within its limitations, is as good as a sovereign body could possess in this respect. If, any authority is necessary on this question I will only rely on the decision of their Lordships of the Privy Council in a case in The Queen v. Bur ha (3 A C 889). Their Lordships of the Privy Council also considered this question in a decision in Emperor v. Benoari Lal Sharma and others (A I R 1945 P C 48 at page 51). The follow ing observations of (heir Lordships in this connection are relevant for the consideration of this question: "The second objection has attracted more support, but is, in their Lordships' opinion, equally unfounded. It is undoubtedly true that the Governor-General, acting under para. 72 of Schedule 9, must himself discharge the duty of legislation there cast upon him, and cannot transfer it to other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian Legislature which, as already pointed out, in view of the proclamation under section 102, had power to make laws for a Province even in respect of matters which would otherwise be reserved to the Provincial Legislature. Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor-General's Ordinance taking the form that the actual setting up of a Special Court under the terms of the Ordinance should take place at the time and within the limits judged to be necessary by the Provincial Govern ment specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as its necessity. Their Lordships are in entire agreement with the views of the Chief Justice of Bengal and of Khundkar, J. on this part of the case. The latter judge appositely quotes a passage from the judgment of the Privy Council in the well known decision in Charles Russell v. Queen ((1882) 7 A C 829). In that case the Canadian Temperance Act, 1878, was challenged on the ground that it was ultra vires of the powers of the Parliament Act of Canada. The Temperance Act was to be brought into force in any county or city, if upon a vote a majority of the electors of that county or city favouring such course the Governor-General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount to a delegation of legislative power to a majority of the voters in a city or county. Their Lordships said: 'The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these person's powers to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency . . . If authority on the point were necessary, it will be found in the case of The Queen v. Burah ((1878) 3 A C 889) lately before this Board.' In my opinion the power conferred under Article 145, could be exercised by the Parliament from time to timer as and when necessity arose. The learned Attorney-General invited our attention to section 14 of the General Clauses Act as well as section 32 of the Interpretation Act, 1889, which provides that " where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires." The analogy of the power given to the Crown for the purpose of enacting beyond the scope of the royal prerogative having once been exhausted and cannot be exercised again is inapplicable to the powers conferred on legislative body and is certainly abrogated by the Interpretation Act of 1889 and section 14 of .the General Clauses Act which has been applied for the interpretation of the Constitution. The next ground taken by Mr. Brohi against the validity of Act XIX of 1957 was that the Parliament by the impugned Act has attempted to amend a void law and the said Act on that account is in terms inoperative. There is no force in this argument. I have already held that Act XXXVI of 1956 was not void as a whole. It was k valid at least in respect of the decision taken with regard to the elections to the two Provincial Assemblies viz. West Pakistan Provincial Assembly and East Pakistan Provincial Assembly. It is a well established principle of law that if an enactment is void in some respects and an amendment is made in that enactment for the purpose of bringing valid provisions of law, then the Legislature is entitled to do so. A similar question was considered by me in a case in Muhammad Ali and Sons v. The Chief Commissioner of Karachi and others (P L D 1957 Kar. 320 at p. 333) and this question was elaborately discussed by me therein. Their Lordships of the Privy Council's observation on this question also supports this view. Their Lordships of the Privy Council in the case of Attorney-General of Alberta v. Attorney-General of Canada and another (P L D 1947 P C 387 at p. 396) observed as follows: "There remains the second question whether when Part 11 has been struck out from the Act as invalid, what is left should be regarded as surviving, or whether, on the contrary, the operation of cutting out Part II involves the consequence that the whole Act is a dead letter. This sort of question arises not infrequently and is often raised (as in the present instance) by asking whether the legisla tion is intra vires 'either in whole or in part', but this does not mean that when Part II is declared invalid what remains of the Act is to be examined bit by bit in order to determine whether 'the Legislature would be acting within its powers if it passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the Legislature would have enacted what survives without enacting the part that is ultra vices at all." Crawford in Interpretation of Statutes page 173 states :- "But where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all jurisdictions that the statute may be amended by obliterat ing the invalid provisions or by correcting those which violate the Constitution." In my opinion, therefore, Act XIX of 1957 cannot help challenged on this account. It is a perfectly valid piece of legislation and within the competence of the Legislature. I do not find any flaw in it and cannot declare it as an illegal piece of legislation. Assuming for the sake of argument that the whole Act was void, even then, in my opinion, the Legislature was entitled to substitute the said enactment by an amending Act B and the amending Act will be valid piece of legislation This question was considered by the learned judges of the Bombay High Court in a case in The State of Bombay v. Heman Santlal Aleja (A I R 1952 Bom. 16 at paras. 25 and 26.). The learned judges observed :- "Even assuming we are wrong in the view that we have taken as to the constitutionality of Act 11 of 1950, and assuming Act II of 1950 contravenes Article 31 (2) inasmuch as it does not restrict the power of Government to requisition land for a public purpose, the question arises as to what is the effect of the unconstitutionality of Act II of 1950. In this connection it is important to remember that the Legislature passed Act XXXIX of 1950 which amended Act XXXIII of 1948 by substituting for the words `any purpose' the words 'the purpose of the state or any other public purpose', and by section 6 of that Act it gave a retrospective effect to the Act by providing that the amendments made by this Act shall be deemed to have been and always to have been made with effect from 26th January 1950. Therefore, the Legislature attempted retrospectively to bring Act XXXIII of 1948 into conformity with the Constitution by putting Act XXXIX of 1950 on the statute book. Counsel for the petitioner has given up the contentions taken up in the Court below that Act XXXIX of 1950 was bad inasmuch as it did not receive the assent of the President and also the contention that the Legislature could not retrospectively amend an unconstitutional Act. It is however, urged by Mr. Palkhivala that if Act 11 of 1950 was void, it was void from its inception and therefore it faded to extend Act XXXIII of 1948, and when Act XXXIX of 1950 was passed there was no law regarding acquisition on the statute book which could 'De amended by that Act. The American authorities draw a distinction between unconstitutional Act which are void from their inception and those Acts which become void only when the Court declared them to be unconstitutional. Willis on Constitutional Law at p.90 says: `There is a second class of situations in which the Courts are in conflict as to whether the rule should be the rule of void ab initio, or the rule of void from date of declaration of unconstitutionality. These are cases of creation of moral obligations on the part of the Government, creation of the Public office, the civil liability of officers for acts done under unconstitutional statutes, the defence of an officer to an action of mandamus brought to compel him to act under an unconstitutional statute, the curing of the defect of unconstitutionality by statutory amendment, and the curing of the defects of uncon stitutionality by change in the Constitution.' So the case before us would fall in the category of an unconstitutional statute where the defect of uncon stitutionality has been cured by statutory amendment. Crawford on Statutory Construction (1940 Edn,) at p. 173 says :- "But where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all jurisdictions, that the statute may be amended by obliterat ing the invalid provisions or by correcting those which violate the Constitution." In the case of Act XXXIII of 1948 the Act cannot be said to be wholly unconstitutional ; it is unconstitutional to the extent that it permits Government to requisition property for a purpose which may not be a public purpose and that unconstitutionality has been corrected by subsequent enactment. It is stated that this Court has taken the view that if any Act is void as contravening the provisions of fundamental rights, it must be deemed to be annulled and the consequences are the same as if it was repealed, and there fore, it is urged that we must hold that Act II of 1950, if it is unconstitutional, stood annulled from the moment of its enactment. The authority relied upon is In re Keshaw Madhaw Memon (52 Hom. L R 540). In that case we were construing Article 13 (1) of the Constitution and the question was whether Article 13 (1) had retrospective effect, and at page 543 in delivering the judgment of the Court I used the following language: 'But in substance and in its effect there is no difference between an Act which is repealed and an Act which is declared void. In both cases the Act ceases to be operative, The law is annulled.' But I have pointed out that there is difference between repealing an Act and declaring an Act void. At page 542 I have pointed out that repeal involves a legislative process whereas declaration of a law to be void does not. I have also pointed out that. Article 395 specifically repeals certain laws, whereas under Article 13 (1) it would be for the Courts of law to determine which laws are inconsistent with the Constitution. This case went before the Supreme Court. The Supreme Court came to the same conclusion as ewe did but on a different ground, and Das, J. in Keshavan Madhava Memon v. The State of Bombay (1951 S C R 228 at p. 234) states ' . . . . . . it should further be seen that Article 13 (1) does not in terms make the existing laws which are incon sistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing laws will be permitted to stand in the way of the exercise of any of the fundamental rights'. Therefore, the position today is that when the petitioner comes before us and asks us to declare Act XXXIII of 1948 as void on the ground that it contravenes the fundamental rights of the citizen, we find on the statute book an Act which has cured the unconstitutionality of Act XXXIII of 1948. Should we then, notwithstanding what the Legislature has done, still declare Act XXXIII of 1948 to be void ? In our opinion, we are bound to take notice of what the Legislature has done, and if the law is not void today, we should not declare it void because it offended against the provisions of the Consti tution prior to its amendment. We are, therefore, of the opinion that the challenge made to the Act on various grounds falls and that the Act must be held to be valid." I am in complete agreement with the observations of Chagla, C. J. and consider that the principles of law enunciated in the said decision are sound and applicable to the facts of the present case. The respondents in this m after took certain preliminary objections but the same were not raised at the commencement' of the hearing. The learned Attorney-General was prepared to address us on these objections but we did not accede to his request as we are of the opinion that the petition should be dismissed on merits. I therefore, order that the petition be dismissed with no order as to costs. QADEERUDDIN AHMED, J.

I am in respectful agree ment with the conclusion at which Sir George Constantine, J. has arrived, namely, the Electorate (Amendment) Act, 1957, is valid and this writ petition should be dismissed. I wish, however, to express my views more fully. I shall refer to the Electorate Act, 1956 and the Electorate (Amendment) Act. 1957, as the Electorate Act and the Amendment Act respectively. The petition consists of 35 paragraphs, out of which paragraphs 10 to 31 are, according to the petition itself, devoted to statements made for the purpose of showing that the passing of the Amendment Act, is "in violation of the solemn commitments made by the pioneers of the Pakistan Movement and even -by the Founder of Pakistan, Quaid-e-Azam, Muhammad Ali Jinnah" and "the Directive Principles of State Policy contained in Article 27 of the Constitution", and that it is inconsistent with "the basic ideology on which Pakistan was founded". In these paragraphs reference is also made to the seasons given by the Prime Minister and the Foreign Minister for passing the Amendment Act and it is alleged that the adoption of the principle of joint electorate means denial to the Christian Minorities of their right to elect their own representatives for securing their effective representations in the law-making bodies of the State. For the purposes of this order, I am not concerned with these allegations, because they do not raise any legal question for really speaking, do they arise from the provisions of the Constitution? Mr. Brohi was aware of this and did not address us on them. In fact he conceded when questioned by me that his clients did not have any legal or constitutional right to claim that they should be able to elect their representatives according to the principle of separate electorate. His case is based entirely on the right claimed by his clients to get the terms of Article 145' of the Constitution enforced through Court. The Article is as follows: "Parliament may, after ascertaining the views of the Provincial Assemblies and taking them into consideration, by Act provide whether elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or separate electorate, and may in any such Act provide for all matters incidental and consequential thereto". Mr. Brohi contends that on an analysis this Article is found to contain the following four terms: (1) The choice between the principle of joint electorate and separate electorate can be made by Parliament only ; (2) It can be made by means of an Act only ; (3) The condition precedent to the making of the choice is that the Parliament should ascertain the views of the Provincial Assemblies and take them into consideration ; (4) The choice is limited to the adoption of either the principle of joint electorate or that of separate electo rate. According to him the fourth term has been violated by the Electorate Act, and the third term was violated at the time of passing the Amendment Act. The first and the second terms are not in dispute as they have been observed. The operative part of the Electorate Act, to which objection has been taken is as follows: "

3. Principle of Electorate.-(1) Elections to the National Assembly shall be held ; (a) as to constituencies in East Pakistan and candidates for election for those constituencies, -on the principle oi joint electorate ; and (b) as to all other constituencies and candidates for election for those constituencies, on the principle of separate, electorate. (2) Elections to the Provincial Assemblies shall be held in East Pakistan as provided on clause (a) of the preceding subsection and in West Pakistan as provided in clause (b) of that subsection. The Amendment Act is as follows: "An Act to amend the Electorate Act, 1956 whereas it is expedient to amend the Electorate Act, 1956, for the purposes hereinafter appearing ; It is hereby enacted as follows: 1. (1) This Act may be called the Electorate (Amend ment) Act, 1957. (2) It shall come into force at once.

2. In the Electorate Act, 1956, for section 3, the following shall be substituted, namely :- "

3. Election to the National Assembly and Provincial Assemblies shall be held on the principle of joint electo rate". The preamble of the Electorate Act has not been amended by the Amendment' Act, and therefore it continues to be the same. The second part of the preamble is as follows: "And whereas those views having been ascertained and taken into consideration it appears to Parliament that provision should be made by Act that the elections aforesaid should be held in respect of certain areas on the principle of joint electorate and in respect of other areas on the principle of separate electorate". This preamble is clearly inconsistent with the operative part of the Amendment Act. Mr. Brohi tried half heartedly to make use of this incongruity. He made an application after filing the writ petition for permission to urge that the third condition was also violated at the time of passing the Electorate Act. He argued that the views of the Provincial Assemblies were never ascertained by the Parliament because in fact the views were invited by letters written by the Ministry of law and not by Parliament and because the replies received were treated with such scant respect as is clear by the incongrous preamble. During his arguments in support of the application he realised that he could not gather sufficient force in support of his contentions because Parliament includes the President, and thus irrespective of Q who wrote the letters to ascertain the views of the Provincial D Assemblies they had been ascertained by Parliament. Their consideration was a subjective process and, therefore, in spite of the negligence shown in omission to amend the second preamble it cannot be said that they were not taken into consideration. It was conceded by him, and the Attorney General agreed with him, that Parliament was not bound to accept them and, therefore, any inconsistency between them and the decision of Parliament is immaterial. The inconsistency between the second preamble and the operative part of the Amendment Act is irrelevant for the purposes of this petition because the defence of the respon dents is not based on any pretentions that the views were again ascertained and were again taken into consideration. He, therefore, did not press the application. Before discussing the objections of Mr. Brohi reference can with advantage be made to the judgment of the High Court of East Pakistan in A. K.

14. Fazalul Quader Chowdhury v. Government of Pakistan (P L D 1957 Dacca 342) on a writ petition in which the validity of the Electorate Act was challenged. The writ petition was dismissed on the ground that the petitioner was only a prospective candidate for election ; that no Electoral Laws as contemplated in Article 144 of the Constitution had till then been enacted ; that the petition was made with an ulterior motive and that the High Court did not have territorial jurisdiction to entertain it. The learned judges have however interpreted Article 145 of the Constitution and have observed at page 359, as follows: "The Attorney General, contended that the Constituent Assembly, instead of itself deciding what principle of electorate should be adopted for the National Assembly and the Provincial Assemblies of the two wings, delegated its power to the Provincial Assemblies to come to a decision thereon and the National Assembly, after ascertaining those views, was by Act to provide that elections to the National Assembly and the Provincial Assemblies shall be held on the principle of joint electorate or separate electorate. He has argued that after ascertaining the views of the Provincial Assemblies the National Assembly could not have enforced its own views regarding the principle of electorate on either of the two wings. Article 145 uses the words "joint electorate or separate electorate" and not the words either joint electorate or separate electorate." Three different elections are contemplated by the Article and the words "joint electorate or separate electorate" are used the one not excluding the other . . . . . Inasmuch as at the time there was controversy regarding the principle of election to be adopted in two wings, it was deemed tit, therefore, to delegate that power to the National Assembly to pass an Act after ascertaining the views of Provincial Assemblies. If there was only one Assembly, the inter pretation sought to be placed on the words of Article 145 would have some meaning. We have to consider elections to three Assemblies, each of which was to be on the basis of joint or separate electorates. If the National Assembly had forced its views and passed an Act providing for one principle of electorate in both the wings after ascertain ment of the views of the Provincial Assemblies that would have amounted to a denial of democracy which the Constitution envisages. In spite of the fact that the Provincial Assembly in East Pakistan wanted elections to be on the basis of joint electorate, the National Assembly could not force its views and enact a law contrary to the opinion of the Provincial Assembly. The question before us may be explained by an example: A tells B to give X, Y and Z apples or pears. B will give X, Y and Z apples or pears according to what they want. X may take apples, Y may take pears and Z 'may take apples. It does not mean that A asked B to give X, Y and Z either apples or pears. Similar is the case before us". It appears from the above that the stand of the Govern ment of Pakistan in that case was that Article 145 was an instance of delegated authority ; that Parliament could exercise this authority only after ascertaining the views of the Provincial Assemblies ; that on the principle of democracy as envisaged by the Constitution, Parliament was bound to act on the views of the Provincial Assemblies but that it was not necessary that the same principle of electorate should be applicable to the elections in both wings of Pakistan. This stand suited the Government fully for the purposes of that case. The Attorney-General has now changed his stand completely with regard to the delegation of authority (para. 6 of the counter-affidavit) the necessity of ascertaining the views of the Provincial Assemblies (paras. 6 and 22 of the counter-affidavit) and the binding nature of the views of the Provincial Assemblies. It appears that the petitioners have taken the cue from the stand taken by the Government at Dacca and accepted by a Division Bench of the High Court that the power granted by Article 145 of the Constitution to Parliament was a delegation of authority. Their counsel has elaborated this argument by adding to it a subsidiary principle that the acts of an agent are the acts of the principal in the sense that after performing his duties the agent drops out and .the principal stands in his place and the acts of the agent are to be construed as his own acts. This principle according to the learned counsel operates to make the Electorate Act passed by the Parliament in terms of Article 145 to be a piece of legislation enacted by the Constituent Assembly itself. It could not, therefore, be mended like an Act of Parliament ; in other words, the Amendment Act could not be passed by simple majority vote. He has added to the argument of delegation of authority another subsidiary principle which is that delegated authority 'must be exercised strictly in accordance with the powers creating it'. In support of this proposition he has relied on pera 574 at page 467 of Volume XXXI of Halsbury's Laws of England (second edition which is as follows: "Delegated authority of the kind above referred to must be exercised strictly in accordance with the powers creating it, and in the spirit of the enabling statute. Statutes of a subordinate legislature, and also rules, ordinances, orders and bye-laws which have fulfilled all the conditions pre cedent- to their validity, have the force of statutes, and must be construed as such". He has argued that on strict construction of the language there cannot be found anything in Article 145 to indicate that the delegate could exercise its power more than once. The power was exhausted after the passing of the Electorate Act and could not be exercised again for passing the Amendment Act. These contentions have been raised in para. 5 of clauses (b) and (c) of para. 8 of the petition. These three contentions form the basis of another attack of Mr. Brohi on the Amendment Act. The objection of Mr. Brohi to the validity of the Elec torate Act may be taken up first. The gist of his argument as noted above is, that Parliament could by an Act either provide that the elections were to be held on the principle of joint electorate or on the principle of separate electorate. According to him the choice was between the adoption of one of the two principles which had to be applied uniformly to all the three Assemblies. At the most it could be extended, accord ing to him to mean that whichever principle was adopted was to be applied to each Assembly as a whole. Thus the elections to the East Pakistan Assembly may be on the principle of joint electorate and the elections to the West Pakistan Assembly may be on the principle of separate elec torate, but the National Assembly cannot be elected partly on the basis of joint electorate and partly on the basis of separate electorate. In support of the contention that one principle is to be applied throughout the country, he has relied on the word 'the' which precedes the words "principle of a joint electorate" and the word 'or' in the following context. ' " The Parliament may , . . . . by Act provide whether elections shall be held on the principles of joint Electorate or Separate Electorate." The High Court of East Pakistan has repelled this argu ment on the ground that the Article uses the words; "joint electorate or separate electorate " and not the words, "either joint electorate or separate electorate." It is notable that while amplifying his contention Mr. Brohi has used the following language in para. 7 of the petition: " The Parliament could, under Article 145, decide either that elections to the National Assembly and the Provincial Assemblies be held on the principle of joint electorate or it could decide that elections to the National Assembly and the Provincial Assemblies should be held on the principle of separate electorate." The use, by the counsel, of the words 'either' and 'or' for the purpose of emphasising the exclusive employment of one principle demonstrate the weakness of his argument, which is to the effect that without the word 'either' there is still an emphasis on the singularity of the choice. As to the word 'the' there is no reason to read it with the principle of 'joint electorate' and not with the principle of 'separate electorate'. It is meant to be read with both. My impression is that Mr. Brohi has not insisted on the adoption of one principle for the whole country and has taken his stand more firmly on the contention that elections to the National Assembly could not be provided for on the basis of a composite Principle of electorate. It appears that he stands on no surer ground for raising this contention whether looked at from the point of view of the language of the Article or its objects. One of its objects was that the views of the Provincial Assemblies of the two wings should be ascertained and considered. The East Pakistan's Provincial Assembly wanted joint electorate it wanted this principle for the area which it represented. I cannot be said that Parliament was precluded from the outset from accepting this view of the Provincial Assembly of East Pakistan because if it was so precluded then the ascertain ment of its views and their consideration was a declared farce. W The result of the acceptance of the views of this Assembly and of the views expressed by the East (sic) Pakistan Assembly was that the Electorate Act provided for the elections of the members of the National Assembly on the basis of joint electorate from the constituencies in East Pakistan and on the basis of separate electorate from the constituencies in West Pakistan. There could not be and there is not anything in the language of Article 145 to prevent the occurrence of this eventually. The Article speaks of "elections" in plural the National Assembly and Provincial Assemblies. This word is capable of embracing reference to elections from the con stituencies to the Assemblies. Mr. Brohi's argument against this construction is that the use of the word "elections" in plural is consistent with the intention of making a reference to the elections of three Assemblies. It may be' so, but it is also consistent with the construction that reference was meant to be to the elections from the constituencies of East Pakistan and West Pakistan. The Attorney-General's contention that the argument of Mr. Brohi has lost its significance as the Amendment Act has adopted a uniform principle of electorate for the whole country and removed the objection of Mr. Brohi, if it was valid. This reply leads us to the other argument of Mr. Brohi. which is that the Electorate Act was void being outside the limits placed on the choice between the two principles of electorate and being void Act could not be amended. He has relied on Mufti Masroor Ahmad v. R. M. Mithani (P L D 1953 Sind 20). In this case an Amending Act was held to be invalid on the ground that the original Act had expired. The Attorney-General has in reply referred to Crawford's Statutory Construction at pages 172 and 173 and The State of Bombay v. Heman Sandal Alreja (A I R 1952 Bom. 16) and has contended that even a void enactment can be validly amended. With deference to f the argument advanced by him I think that this proposition is too widely stated by him. Crawford's statement of the law on this point is as follows: "Technically, an amended statute is not a new and independent statute. As we have already seen, a part of the Original Act remains. Logically, therefore, a statute which has been repealed in its entirety, is not subject to amendment but the weight of authority is to the contrary and accordingly allows the new enactment to stand, if it is a law independent and complete in itself. In other words, it must meet the requirements of an original statute. And this is, undoubtedly, the better view, from a practical stand point. But where the repeal is partial, there is no prohibition against an amendment of the statute, even under the view which prohibits an amendment where the repeal is in toto. There is likewise a conflict in the authorities whether a statute which is unconstitutional in its entirety, can be amended. Some authorities hold that such a statute cannot be amended for the reason that if the original enactment is completely unconstitutional, there is nothing to amend since an unconstitutional act, being void has no existence as a law. Other authorities however, adhere to the view that a statute unconstitutional in its entirety, may be amended, provided the amendment qualifies as a complete and independent statute in and of itself. And in at least one State, the Courts do not consistently adhere to either of these two views but allow au amendment, except in those cases where the statute is completely unconstitutional by virtue of a lack of power in the legislature to enact it. But where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all jurisdictions that the statute may be amended by obliterating the invalid pro visions or by correcting those which violate the con stitutions." According to this statement of the law it is necessary that both in the case of a statute repealed in its entirety and in the case of the unconstitutionality of a statute as a whole, the amending enactment should be complete in itself and qualified to stand as an independent statute by itself. In other words it means that the amending statute in such circumstances should be a new enactment for all purpose except in name. The Amendment Act appears, however, to fulfil this condition because the entire operative part has been substituted by a new provision; the first preamble merely recites the contents of Article 145 of the Constitution and the second preamble is out of place but of no consequence ; and there is nothing of any importance in it which has been, taken from the Electorate Act. It cannot (can ?) be considered to be another Act capable of standing by itself to serve the purpose fully except in name. The argument of Mr. Brohi is, moreover, wide of the-mark. His argument might have been of some value, if it could be held that one principle of electorate was necessarily to be applied to the whole country. As indicated above, this view cannot be upheld. The real stand taken by Mr. Brohi is that a composite system of electorate for the National Assembly was objectionable. In this view the Electorate Act was not unconstitutional in its entirety, but was only partly invalid and as such it could be validly amended. My view, as stated above is that it was entirely valid and could be validly amended. I Turning now to the Amendment Act, the first objection of Mr. Brohi is that it is invalid because the views of the Provincial Assemblies were not ascertained and considered after passing the Electorate Act and at the time of passing the Amendment Act. He firstly argued that the word 'may' which occurs after the word 'Parliament' in Article 145, should be read as 'shall' and that on this reading an ascertain ment of views and their consideration was mandatory; but on second thought he abandoned this argument and. explained that the word 'may' was to be read with the words "by Act provide" and since Parliament has actually by Act made the contemplated provision, it was immaterial whether the word 'may' was read as it was or the word 'shall' was read in its place. He, therefore, contended that the words "after ascer taining the views of the Provincial Assemblies and taking them into consideration "should be read as a condition precedent or the mode and the form in which the Parliament could by Act make the contemplated choice and that this condition was attached to the making of a provision by any Act passed at any time under Article 143 of the Constitution. He argued that for this purpose there was no difference between an Original Act and an Amending Act. According to para. (6) of the counter-affidavit the condition as to ascer tainment of the views of the Provincial Assemblies as to taking them into consideration was merely directory and not mandatory in character"; but the Attorney-General admitted that this condition was necessarily to be perforated once in the very beginning. Mr. Brohi is right to the extent that ascertainment and consideration of views of the Provincial Assemblies was necessary and the Parliament could proceed to make the contemplated choice only after doing so, but I do not see any basis for the argument that the views were to be ascertained and considered every time before making the contemplated provision by an Act. The required provision could be made by an Act without any limit of time and without any limit on the number of occasions for doing so after the views of the Provincial Assemblies were ascertained and con sidered. Whenever the contemplated provision is made after ascertaining and considering the views the action would be in the sequence of time subsequent to the performance of the condition precedent, and therefore strictly in accordance with the provisions of Article

145. Three considerations have been put forward by the Attorney-General to serve a guide for finding an answer to the question as to whether repeated ascertainment and con sideration of the views of the Provincial Assemblies was necessary or not. One of them is that the language used in the other Articles of the Constitution should be compared with the language of Article 145, because it is presumable that if the Constituent Assembly wanted a condition prece dent to be repeatedly observed, as it has prescribed in other Articles, then the same language or similarly clear language would have been used in this Article also. The second is that the object of the provision should be ascertained and kept in view as the guiding star. The third is that repeated ascertainment and consideration of the views of the Provincial Assemblies would be meaningless. The Attorney-General has drawn our attention to the following Articles of the Constitution in support of his argu ment that the Constituent Assembly has used clear and emphatic language where it wanted a condition precedent to be repeated each time the same step was taken. "

59. No Bill or amendment which makes provision for any of the matters specified in clause (1) of Article 58, or which if enacted and brought into operation would involve expenditure from the revenues of the Federation, shall be introduced or moved in the National Assembly except on the recommendation of the President."

108. Parliament shall have power to make laws for the whole or any part of Pakistan for implementing any treaty, agreement or convention between Pakistan and any other country, or any decisions taken at any international body. notwithstanding that it deals with a matter enumerated in the Provincial List or a matter not enumerated in any list in the Fifth Schedule: Provided that no law under this Article shall be enacted except after consultation with the Governor of the Province to which the law is to be applied." " 118.-(1) As soon as may be after the Constitution Day and thereafter at intervals not exceeding five years, the President shall constitute a National Finance Commission consisting of the Minister of Finance of the Federal Govern ment, the Ministers of Finance of the Provincial Govern ments, and such other persons as may be appointed by the President after consultation with the Governors of' the Provinces . . . . . " " 172.-(1) The President may transfer a judge of a High Court from one High Court to the other High Court, but no such judge shall be transferred except with his consent and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge." The language used in these provisions is suggestive of the intention of the Constituent Assembly that it "did not mean by the language used in Article 145 that repeated ascertain ment and consideration of views was necessary. For the purpose of finding a guidance from the object of Article 145, it is necessary to ascertain the object. It is admitted on both sides that the question of making choice between the principle of joint electorate and separate elec torate was found by the Constituent Assembly to be an extremely controversial one and that the Constituent Assembly was unable to settle it without defeating the other object of passing the Constitution without indefinite delay. It, there tore, decided that the settlement of the controversy should be left to Parliament. This entrustment was made after completing the essential requirements of the Constitution and embodying the principle of joint electorate in the Constitu tion. If Parliament had failed to settle the dispute and no provision was made under Article 145, the principle of joint electorate would have been applicable to the elections of all the three Assemblies by virtue of Articles 140 to 144 of the Constitution. It appears that the terms of this entrustment were also based on a compromise, because, although Parlia ment was entrusted with this task yet it was made subject to the ascertainment and consideration of the views of Pro vincial Assemblies. Again, the views-were to be taken and considered, but they were not binding. These are probably checks and balances to suit the temper of the house. There seems to be nothing definite in these facts to point to one way or the other regarding the needs of repeated ascertain ment and consideration of the views of the Provincial Assemblies. If at all, it would appear that repeated ascer tainment and consideration of views was not necessary because they were not binding on Parliament. The Attorney-General mentioned a few hypothetical occasions at which repeated ascertainment and consideration of views would strike as absurd. He, for instance, said that supposing the required provision was made to-day by an Act, under Article 145, and a day after it, it was felt that an error had been made which ought to be corrected. It would be palpably unreasonable to suggest that before passing an Amending Act under these circumstances, there should be a fresh ascertainment and consideration of the views of the Provincial Assemblies. This illustration is misleading, because, if the provision of law was clear then the absurdity arising from the short interval of time between the passing of the two Acts would be irrelevant, although of course a consideration may arise from the peculiarities of such facts that a substantial compliance with the condition prece dent should be taken to be sufficient. In order to point out to the Attorney-General that the illustration given by him was not helpful in construing Article 145, I pointed out to hits that he should also take into consideration the possibility of making an amendment 10 years after the passing of the first Act. The factor of time would then be irrelevant for construing the law in which the idea of the interval of time is absent. If peculiar considerations arise from peculiar circumstances, then they may themselves present new prob lems and it is not right by referring to them to conclude that such considerations should be made applicable to the ordinary circumstances. Constantine and Wahiduddin, JJ. appear to have been impressed by the possibility of the Provincial Assemblies being dissolved. They appear to be of the view that in the event of Parliament proceeding to pass an Act for making the contemplated provision, the views of new Assemblies should be ascertained again, because it is the right of the Assemblies to be consulted. I think with great respect to the views of my learned brothers, that there does not appear to be any justification for the view that either the Provincial Assemblies have a right to be consulted or that there is any difference for the purposes of Article 145, between the Pro vincial Assembly and another by reason of its composition. A newly elected Provincial Assembly will be as much a Provincial Assembly as its predecessors. If the idea behind this view is that the opinion of a newly-elected house may be different on account of a closer reflection in it of the public opinion then firstly, this is not a legal but political consideration and secondly the opinion of a house can possibly be changed on account of a large number of bye-elections and sometimes even by the election of one new member with a strong personality and effective persuasive qualities. The consideration of a change in the views or composition of an Assembly does not appear to be relevant to Article

145. Moreover, strange consequences will follow if these ideas are pushed to a logical conclusion or the same principle is applied to the National Assembly. It may be mentioned that Mr. Brohi has indirectly admitted that one cannot find in Article 145 the idea of repeated ascertainment and consideration of the views of the Provincial Assemblies, because his stand is that on strict construction it is not possible for Parliament to exercise for more than once the authority delegated to it under this Article. Coming now to the argument of Mr, Brohi that the power granted to Parliament under Article 145 is delegation of authority, it may be conceded that finding itself unable to settle the controversy, the Constituent Assembly appointed M Parliament to settle it. But then all functions and duties of Parliament are the creation of the Constituent Assembly, Delegation of authority is different from the creation ands assignment of a function or duty. The essence of delegation appears to consist in the authorisation by one to another of the performance of a right or duty which is one's own. This makes it necessary to determine as to whether it was the function or duty of the Constituent Assembly to settle the dispute regarding the choice between the principle of joint electorate and separate electorate. If this question is to be decided on the basis of any principle then, as admitted by Mr. Brohi, it is impossible to say as to what provisions must be regarded to be Constitutional and what cannot be regarded to be so. Some Constitutions contain provisions in minute details and with reference to them, all those details are Constitutional Provisions, but there is nothing to stop a Constituent Assembly from drafting a very brief document and leaving the rest as mere subsidiaries to be settled by the legislative bodies or other institutions. In the words of K. C. Wheare in Modern Constitutions at page 46 :- "A Glance at the Constitutions of different countries shows at once that people differ very much in what they think it necessary for a Constitution to contain. The Norwegians were able to say all that they wanted to say in about twenty five pages ; the Indians occupy about two hundred and fifty pages in their Constitution of 1950. A principal line of division is found between those who regard a Constitution as primarily and almost exclusively a legal document in which, therefore, there is a place for rules of law but for practically nothing else, and those who think of a Constitution as a sort of manifesto, a confession of faith, a statement of ideals, a 'charter of the land', as Mr. Podsnap called it." In the present case the Constituent Assembly did make provisions according to which it was possible to run the Government on democratic basis by electing legislatures on the principle of joint electorate. The question which was left by it to be settled by Parliament was not the adoption of a necessary Constitutional principle but the settlement of a dispute which 'persisted amongst groups of its members. This distinction is important. The petitioners have not realised that the argument of a delegated authority cuts their case deeply at certain places. Indeed it would have been open to a grave critical thought if the Constituent Assembly had delegated its own functions or one of its necessary functions to another body. The power of Constitution making had vested in the Constituent Assembly, and this task was entrusted by a statute to it. It had the fullest legislative and Constitution making powers but it does not necessarily follow that it had the power to abdicate them in favour of somebody else. Mr. Brohi has suggested that it had all those powers which are conceivable in favour of the British Parliament. This is an alluring analogy but may not be sound. To begin with the British Parliament is no longer regarded as the sovereign which can do everything except make a woman of a man and a man of a woman. Dicey's theory of Sovereignty of Parliament has cracked at vital points. Mr. E. C. S. Wade has said in his Introduction to the Law of Constitution by Dicey 1952 edition that "the rules are logically superior to the sovereign" and that "political supremacy of Parliament as law making organ becomes more and more a fiction." Besides, there may be a difference between the sovereignty of the British Parliament and the sovereignty of our Constituent Assembly, in that the powers of the British Parliament are not defined while our Constituent Assembly was a statutory body and its sovereignty was born of an artificial origin namely section 6 or section 8 of the Indian Independence Act, 1947. These considerations raise the question that the authority of, making a provision of the Constitution which is said to have been delegated to Parliament might or might not have been validly delegated. No answer is provided to this question by the ratio decided of 1878, The Queen v. Burah (5 I A 178), Charles Russell v. The Queen ((1882) 7 A C 829), Hodge v. The Queen ((1884) 9 A C 117), Attorney General for New South Wales v. Trethowan (1932 A C 526) and Emperor v. Benoari Lai Sharma (A I R 1945 P C 48), because the total effect of these authorities is that the powers of the legislatures of dominions and colonies are plenary powers as ample within their own limits as those of the British Parliament and that these legislatures had not in the instances before the Courts delegated their own powers but had delegated only ancillary powers or powers of conditional legislature. The following remarks in Beroari Lal Sharma's case are significant :- "It was unboubtedly true that the Governor-General, acting tinder section 72 of schedule 9, must himself dis charge the duty of the legislation there cast upon him, and could not transfer it to other authorities. But the Governor-General had not delegated his legislative power at all. His powers in this respect, in cases of emergency are as wide as the powers of the Indian Legislature . . . . ." The argument before us, is that the Constituent Assembly did enjoy plenary powers but that it has delegated its own powers of making a provision of the Constitution to Parlia ment. The question, therefore is whether this delegation is valid or not. 11 it be invalid then Article 145 is questionable and the heart of the petitioners' case is pierced. If it is valid, then there is another consideration of some importance from the point of view of the petitioners. It is this : If the power of making a provision of the constitution was validly dele gated by the Constituent Assembly to Parliament, then the provision made by Parliament constitution cannot be questioned in a Court of Law in pursuance of the authority being a provision of the for removing inconsistencies between it and Article 145 once it is settled that procedurally it was validly made. Mr. Brohi has withdrawn his objections to the procedural part of the Electoral Act and has attacked its contents only. If it is a provision of the Constitution then according to the stand of the petitioners themselves its validity cannot be questioned by them before us and their objections to the Amendment Act only need be examined. In other words the petitioners' case is mutilated by their own double edged arguments. Their counsel has tried to avoid this controversy arguing that delegation of any authority would mean that the acts of the agent are the acts of the principal and as such, even if the delegated authority was not to make a provision of the constitution but was of a subsidiary nature its exercise would be the exercise of the authority of principal and that the same limitations would attach to it as are attached to the acts of the principal. Applying this principle to the facts of the present case, the counsel has argued that the Electorate Act passed by Parliament in terms of Article 145 in an act of the Constituent Assembly. According to him, it may not be a provision of the constitution but as stated in clause (d) of para. 8 of the petition it is a "constitutional legislation" and as such can be amended according to the provisions of Article 216 of the Constitution only. This argument suffers from at least three serious defects: Firstly, it is not correct to .say that an agent cannot modify and rescind his acts except by treating them as acts of the principal himself. He may have .an express power or implied authority to change and revoke them. It has been well said that "it is easy to enter into the relationship of principal and agent, but not always so easy to throw it off again." The manner in which the power is to be exercised by Parliament namely by making a provision "by Act" would include, in the absence of an intention to the contrary, the authority to do so by more than one Act and also to amend and repeal it. Secondly, the argument that the acts of the agent are the acts of the principal is founded on an attempt to apply a principal of contractual agency to delegated legislation. In the words of H. G. Hanbury at page 3 in the Principles of Agency :- "The contractual relation is that which subsists between two parties, who have entered into an agreement whereby they intend, or must be taken to have intended that their future legal relations shall be affected, and whereby one party becomes entitled to acts or forbearances on the part of the other, or in the case of bilateral contracts, each party becomes so entitled." There is no contractual relationship between the Constituent Assembly and Parliament. This principle is not applicable to subordinate legislation which arises from the need of the parent legislature to leave the details unfurnished, with the entrustment of a power to a named authority to settle and provide for them. As stated in Halsbury's Laws of England (second edition) Vol. 31 p. 467 :- "The tendency of modern legislation is to lay down general principles, and to avoid going irito administrative details," Such legislation is conditional on the use of a particular power or the exercise of a limited discretion. Craies on Statute Law (Fifth Edition) has stated on page 269, as follows :- "As long ago as .1878 it was stated "Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence is no uncommon thing and in many circumstances it may be highly con venient". Thus power is frequently granted by statute to enable rules, regulations or bye-laws to be made by some authority other than the Sovereign and Parliament in respect of some particular matter which is not provided for by the general law of the land." The author has mentioned at page 271, five safeguards against the abuse of delegated power. One of them is that "there should be a machinery provided for revoking or amending a delegated legislation, cf. the Interpretation Act, 1889, section 32 (3)". , This section runs as follows: "(1) Where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. (2) Where an Act passed after the commencement of this Act confers a power or imposes a duty on the holder of an office, as such, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed by the holder for the time being of the office. (3) Where an Act passed after the commencement of this Act confers a power to make any rules, regulations, or bye-laws, the power shall, unless the contrary intention appears, be construed as including a power, exerciseable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, regulations, or bye-laws." This principle is reproduced in para. 577 at page 469 of Halsbury's Laws of England, Vol. 31 and the following foot note is added to it :- "This provision applies to rules, regulations and bye-laws only, and not to orders in council and other instruments mentioned on page 467, ante." The equivalent of section 32 (3) of .the Interpretation Act in our Law is section 21 of the General Clauses Act, 1897, which is applicable to the Constitution by virtue of Article

219. It is as follows :- "Where, by any Central Act or Regulation a power to issue notifications, orders rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules, or bye-laws so issued." These provisions are not incidents of the theory of delegated authority but statutory safeguards against miss-use of the power of delegated legislation. They do not apply to Acts of Parliament. Mr. Brohi has argued that a provision made in exercise of a delegated power, can be amended, if that power has not exhausted itself, "in the like manner and subject to the like sanction and conditions;" but this argument destroyed itself completely because the stand taken by the 'learned counsel is that the power has exhausted itself. In view of this, the course adopted by Parliament in passing the Amendment Act is irreproachable, because it has not tried to exercise the power again, but has treated the Electorate Act like any other Act and has amended it like any other enactment made by Parliament. The question of exercising the delegated authority, "in the like manner and subject to the like sanction and conditions", does not arise if the alleged dele gated authority has not been exercised again and if the amendment has been made in exercise of Parliament's own powers to amend its Acts. There is nothing in Article 145 to indicate that an Act passed under it is different from the other Acts of Parliament. Thirdly, one wonder whether or not Mr. Brohi has tried to press into use the theory of delegated authority, because he found that Article 216 of the Constitution did not in terms apply to the amendment of the Electorate Act. He did not attempt to analyse the terms of this Article, which is applicable only to "the constitution or any provision thereof." The Electorate Act, in his words is a "constitutional legislator", and not the constitution or a provision of the Constitution. Constitutional Law, according to a modern theory does include Administrative Law for according to Prof. Keith, it is logically impossible to distinguish Administrative from Constitutional Law. But Article 216 is not in terms applicable to Administra tive Law and cannot be made applicable to it with the help of the theory of delegated authority. The ingenuity employed in directing an attack on the Amendment Act on the basis of the theory of delegated authority has fallen short of the target and left it untouched. A number of objections have been raised in the counter affidavit to the maintainability of the petition. Reference, for instance, can be made to paragraphs 13, 19, 20, 23 and

24. The Attorney General wanted to address us on them after addressing us on the merits of the petition. We showed our disinclination to hear him on them, because we were not satisfied with the petitioners' case oil merits. 'Exemplary' costs have been claimed on behalf of the Government of Pakistan (para. 28 of the counter-affidavit), but it appears that the petitioners were justified in coming to this Court in view of the stand taken by the Government in a similar writ petition at Dacca. The petition is dismissed with no order as costs. Per curiam. The petition is dismissed. No order as to costs. Mr. Khurshid for petitioners prays for a certificate under Article

157. The Attorney-General has no objection. We certify that the case involved a substantial question of law as to the interpretation of the Constitution, viz., the interpre tation of Article

145. A. H. Petition dismissed