P L D 1958 (W (PLP)

These two petitions have come to me on a difference of opinion between Kaikaus and Akhlaque Husain, JJ. The question before them was whether certain parts of section 152 of the Punjab Municipal Act, 1911 hit Articles 11 and 12 of the Constitution.

2. Section 152, so far as it concerns the present purpose, is as follows :‑ Section 152, Punjab Municipal Act.‑"(1) The Committee may, by public notice, prohibit in any specified part of the municipality‑ (a) the keeping of a brothel ; (b) the residence of any person who practises prostitution. (2) Whoever after the date specified in the public notice issued under subsection (I)‑ (a) * * * * * (b) * * * * * (c) * * * * * (d) being a practising prostitute, resides within the prohibited area, shall be punishable with imprisonment * * * for a term which may extend to one month * * * * *"

3. The Municipal Committee of Rawalpindi issued a notice on the 26th January 1957, that "all owners, tenants, residents and prostitutes", who reside in the area known as Serai Beli Ram for the purpose of adultery, should vacate their premises within a month, the reason for the notice being that the use of the locality in question as "chakla" was injurious to the morals of the residents. In writ petition No. 186, both petitioners admit practising prostitution, while in writ petition No. 370 only one of the three petitioners makes this admission, and the other two merely "belong to the same community". It is contended on behalf of all of them that the notice in question militates against Articles 11 and

12. Article11.‑Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right‑ (a) to move freely throughout Pakistan and to reside and settle in any part thereof ; (b) * * * * * Article 12.‑Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business Provided that nothing in this Article shall prevent‑ (a) the regulation of any trade or profession by a licensing system, or (b) * * * * *

4. So far as Article 11 is concerned, the objection is not to the restriction itself which is conceded to be reasonable, but to the manner in which it is imposed. There is, for instance, no notice to show cause and there is no alternative provision for the practising of the profession and no solution of a nasty problem. Further, the imposition of restriction under Article II places a restriction on the fundamental right which Article 12 guarantees the free practice of prostitution as a profession without impediment. Akhlaque Husain, J. was of the ‑opinion that Article 12 did not confer a right to practise a profession or trade in any place. This right was subject to the general law of the land and to the limitation contained in Article

11. Kaikaus, J. thought the right guaranteed by Article 12 was not, dependent on Article 11, and that no restrictions could be imposed on the "full and free" practice of a profession.

5. It should be stated at the outset that section 152 of the Punjab Municipal Act does not forbid prostitution ; it gives the power of prohibition in respect of a specified part of the town. This4is in recognition of its injurious effect on morals. A certain locality may be particularly susceptible to injury, where, for instance; there is a school or college, and there can be no doubt that, on general grounds, so long as prostitution is not totally prohibited, it should be confined to an out‑of‑the‑way locality. Section 152 does not forbid its being so confined ; it seems to be paving the way to such confinement. If, however, the intention of the Committees resolution be to turn out prostitutes from one locality after another, then, as the law stands at present, I am inclined to think that the restriction contemplated by Article 11 will operate in an unreasonable manner, though reasonably imposed. But this single resolution by itself does not provide sufficient material for so holding.

6. There is nothing unusual in confining a trade or profession to a locality. Article 12 calls it regulation by a licensing system. The law generally delegates the power of issuing licences to a local body or authority, and the licence may forbid sales, as an example, except in a particular locality, a meat market, for instance. Suppose the Legislature exercised the power itself and provided in the Act that meat or vegetables shall not be sold in a locality which is not removed from the public latrines by at least two hundred yards. Could it be said that because there is no express order about a licence and there is no "licensing system", the restraint on the practice of the trade hits Article 12 ? A licence merely imposes reasonable conditions on the practice of trade, and if these conditions are imposed by statute instead o c being left to a single authority which may very possibly act arbitrarily, I find it difficult to believe that Article 12 will be violated.

7. But I have devoted some thought to the language of section 152 only to show that in some aspects it is analogous to the regulation of a profession by a licence and that, consequently, it cannot be treated as a step in total prohibition Prima facie, the argument seems to be empty of intellectual content when you say that if licences are issued to prostitutes to practise their profession subject to conditions, then the licence can confine the practise to certain places and even times, but that if the Act itself provides for such restriction as to place and time, then it is unconstitutional.

8. But I do not rely on this view of the licensing system. It seems to me that the advocacy of a "full and free" right to practise prostitution violates both the spirit and the letter' of thee Constitution. First, as regards the spirit of the Constitution,' we cannot view it in proper perspective if we take an Article by itself, without reference to other provisions, and, therefore, we should start with preamble, as Akhlaque Husain, J. has done to a limited extent. "The people of Pakistan", according to the preamble, adopted a Constitution for a democratic State‑ "Wherein the Muslims of Pakistan should be enabled in dividually and collectively to order their lives in accordance with the teachings and requirements of Islam * * * * * " "Wherein should be guaranteed fundamental rights including rights such as equality of status and opportunity, equality before law, freedom of thought, expression, belief, faith, worship and association, and social, economic and political justice, subject to law and public morality * * * * * ".

9. Next, in Part III, the Constitution laid down the "Directive Principles of State Policy". The "State", which includes the Legislature, was to guide itself in the formulation of its policies by the provisions of this Part, and Article 28 (e), which is in this Part, provides that "the State shall endeavour to prevent prostitution * * * * * *".

10. Consequently, it would be in consonance with the Constitution if, in the interpretation of the fundamental rights, we bear in mind, firstly, that we have to enable the Muslims of Pakistan to order their lives in accordance with the teachings of Islam, and this should be done not individually alone, but also collectively ; secondly, that the fundamental rights should be guaranteed "subject to law and morality"; thirdly, that, among other things, prostitution is to be prevented. The endeavour of the Legislature to prevent prostitution includes the passing of an Act with that end in view. If, therefore, there is already an Act on the statute book, which may be regarded as at least a meagre effort to prevent prostitution from spreading or becoming popular pastime, our interpretation of it should not ignore these considerations.

11. Certain Articles of the Constitution make an express mention of the moral content. Thus Article 8 gives the right of free speech and expression subject to reasonable restrictions imposed by law in the interest of decency or morality. Article 10 gives the right to form associations or unions subject to similar restrictions in the interest of morality. An association like an All Pakistan Prostitutes' Union will perhaps be offensive to this provision. Under Article 18, even the practice of religion is subject to morality. Now take an Article like Article 9, which does not mention decency or morality, and which gives the right to assemble peacefully and without arms subject only to res trictions in the interest of public order. Can it be said that such an assembly can commit acts of indecency or immorality so long as they are done peacefully and without arms ? If the answer is that since certain indecencies are culpable under the Penal Code, it will be assumed that the ordinary law will be respected, then the answer should apply to Articles 8, 10 and 18 also, and it should have been unnecessary to exploit morality in the case of associations formed under Article 10 or the freedom of thought and expression guaranteed by Article 8 or the practice of religion guaranteed by Article

18. The only reason for express mention in these three Articles can be that decency and morality may be more or less directly involved in the exercise of the right guaranteed F by these Articles.

12. Therefore, when you come to Article 12, you cannot all at once throw away the garb of decency and morality and be so consumed by its naked words as to forget these primordial instincts altogether. Morality and decency are as fundamental as the fundamental rights themselves, and in the context of our G Constitution, bearing in mind the preamble and the directive principles, a fundamental right is like the moon and morality like the disk of light surrounding it. A profession whose practice Pakistan's Constitution guarantees to the citizen could not conceivably be a profession involving indecency or immorality. Is a Constitution intended to guarantee indecency or immorality ? This I say independently of the fact that Article 12 thinks of "lawful" professions.

13. And now as to the word "lawful"‑and here I address, myself to the letter of the Constitution. In the dictionary senses on which the petitioner's counsel himself relied, "lawful" means (1) according to law, or (2) not contrary to law, or (3) permitted by law, or.(4) sanctioned or recognised by law, or (5) pertaining to or concerned with law. The fifth sense is not applicable here. As regards the other meanings, since there is no established "law of prostitution", the first and the fourth senses will also not apply, and to that extent perhaps it could not be said that prostitution was "permitted" by law in the third sense. But if it means that the law has nothing to say against it, then it accords with the sense of "not contrary to law", which is the second dictionary meaning, and I believe that in this sense prostitution is a profession which is not contrary to law. This means that if there is a law which prohibits prostitution, then prostitution will not be a lawful profession. For the same reason, if there is a law which places some restriction on prostitution, then prostitution will be lawful subject to that restriction.

14. Kaikaus, J. thought it was a contradiction in terms to say that a fundamental right exists, but that it can be taken away by law, and the provision about a licensing system would also be meaningless on that interpretation. If the dictionary meaning of the word "unlawful" which I have suggested can be reasonably acceptable, there would be no contradiction, because the profession is guaranteed only subject to its being lawful, and perhaps the Constitution may have acted pardonably if it relied on the Legislature to determine whether a profession should he declared unlawful. I think there is no fear that a recognizedly decent profession like that of a physician's will ever be prohibited. That part of the argument which rests on the licensing system may be answered by the fact that most of the "lawful" profession, according to the meaning I have put on the word, require being regulated by a system of licensing. 15. "By a lawful profession", says Kaikaus, J. "is meant a profession the act involved in which is, as a single act, not prohibited bylaw. If these words were not put in, a thief, a dacoit, a smuggler, a blackmailer or a slave‑trader may have, on the basis of the fundamental right of profession, contended that in their activities they were only carrying on their profession, and, therefore, the laws relating to theft, robbery, smuggling, blackmail, slave‑trade were all void as they violated the fundamental right to carry on a profession. This is the significance of `lawfull'

16. According to this interpretation, the profession of a thief is unlawful because the individual act of theft is an offence, and if the Legislature made fornication an offence, it could make prostitution unlawful within the meaning of Article

12. But suppose the Legislature made the curing of skins or the making of shoes or even the tilling of land an offence‑and what is there to prevent the Legislature from doing it‑then the entire leather trade and the profession of husbandry will become unlawful and Article 12 will not protect them. The Legislature can thus easily get over the argument that it cannot forbid a profession without forbidding the individual act involved in the profession, and if either can be done by it with equal convenience, the protection given by Article 12 is not on a higher plane in the one case than in the other.

17. Then it will be noticed that the argument based on this view of the word "lawful" does not give any explanation for the provision that it shall be the endeavour of the State to prevent prostitution. If in this endeavour the State passes a law prohibiting prostitution or restricting it, it will be complying with one of the directive principles of its policy, but in so doing it will violate the general guarantee to professions given by Article

12. It cannot be said that because the State is required to make only an endeavour in this behalf, since the endeavour entails the destruction of a fundamental right, it should be given up. The word "endeavour" has been used because a straight step is likely to create difficulties, and social problems arise for solution. You cannot turn prostitutes on the streets, because if each of them settles in a separate locality, there is danger that the contagion will spread to all parts of the town. That is why the matter has been left at the stage of endeavour. And the word "lawful" would be properly interpreted if the ultimate goal of the Legislature to prevent prostitution is not excluded from its meaning.

18. Learned counsel for the Committee produced before me some legal definitions of the word "lawful" which do not appear to have been placed before the Division Bench. Thus in Black's Law Dictionary the following useful passage occurs :‑ "The principal distinction between the terms `lawful' and `legal' is that the former contemplates the substance of law, the latter the form of law. To say of an act that it is `lawful' implies that it is authorised, sanctioned or in any case not forbidden, by law. To say that it is `legal' implies that it is done or performed in accordance with the forms and usages of law, or in a technical manner. In this sense `illegal' approaches the meaning of `invalid'. For example, a contract or will, executed without the required formalities, might be said to be invalid or illegal, but could not be described as unlawful. Further, the word lawful more clearly involves an `ethical' content than does `legal'. The latter goes no further than to denote compliance with positive, technical, or formal rules, while the former usually imports a moral substance or ethical permissibility * * * * * * ".

19. In Roland Burrow's "Words and Phrases Judicially Defined", the following passage is to the same effect :‑ "By section 70 of the Indian Contract Act, three conditions are required to establish a right of action at the suit of a person who does anything ‑for another ; (1) the thing must be done lawfully * * * * * * the term `lawful' no doubt has a wider meaning than the term `legal': Legal is what is in conformity with the letter or rules of the law as administered in the Courts ; `lawful' is what‑is in conformity with (or frequently not opposed to) the principle or spirit of the law,1whether moral or judicial

20. These interpretations further the argument on which I have primarily relied that every law has a moral or ethical setting.

21. I, therefore, agree with Akhlaque Husain, J. that these petitions should be dismissed, though without costs. In respect of the manner in which the restriction has been imposed, I have nothing to add to his arguments. I should add, however, that since two of the five petitioners do not practise prostitution, the order does not affect them. But I should repeat that if the object of the Committee be to turn out prostitutes from one locality after another, then Article 11 will apply, unless some reasonable steps have been L taken to provide for them, and this, I suggest, is a problem which should be approached, not prudishly, but in a realistic manner. K. M. A. Petitions dismissed.