P L D 1964 Supreme Court 673 (PLP)

A. R. CORNELIUS, C. J.?These two appeals come before the. Court as Constitutional Appeals on the footing of certificates granted by the respective High Courts. Criminal Appeal No. 43 of 1964 It by Saiyyid Abul A'la Maudoodi describing himself as Amin of the Jamaat-i-Islami, which is claimed, and at the hearing was admitted by learned counsel representing the Central Government, to be a political party operating in both wings of Pakistan, against the Government of West Pakistan. Civil Appeal No. 19-D of 1964 is brought by the Province of East Pakistan against one Tamizuddin Ahmad describing himself as Member of the Jamaat-i-Islami, Dacca, who was the petitioner in a petition under Article 98 of the Constitution which resulted in the issue of an order quashing certain notifications issued by the Provincial Government under sections 16 and 17-A of the Criminal Law Amendment Act, 1908. The case before the West Pakistan High Court was moved by Saiyyid Abul A'la Maudoodi for a similar order under Article 98, in respect of similar action by the government, but the High Court of West Pakistan declined to issue any order under that Article, and dismissed the petition. In both appeals, the Central Government of Pakistan was added, by order of the Court, as a respondent. The action of the two Provincial Governments which was called in question separately in the two Provincial High Courts was taken on the 6th January 1964, and all the circumstances point to its having been a concerted action. It was admitted before us by Mr. Manzur Qadir appearing for the Central Government that the action had been taken simultaneously by the two Governments after consultation with the Central Govern?ment. The Criminal Law Amendment Act, 1908, applied of its own force to the Province of East Pakistan, but required extension by notification to the Province of West Pakistan to be effective in every part thereof. It appears that it had been extended to the old Punjab on the 23rd June 1930, and even earlier on the 17th December 1921, to the old North-West Frontier Province, but the Jamaat-i-Islami having its offices in every part of the new Province of West Pakistan, it became necessary for the purpose of taking action under the Act of 1908 that that Act should be extended to the whole Province, This was done by a notification issued on the 6th January 1964, on which date also a notification was issued (i) under section 16 of the Act declaring the Jamaat-i-Islami to be an unlawful association and (ii) under section 17-A specifying places used for the purposes of the said Jamaat, thereby enabling the District Magistrate to take possession of such places. It was stated that the two notifications were printed at 7-30 a.m. on the 6th January and were published at 8-30 a.m. being numbered in sequence so that the notification declaring the Jamaat-e-Islami to be unlawful was of the number following that of the notification extending the Act to West Pakistan. Some argument was addressed by learned counsel for the private appellant to the consideration whether there should not have been a period during which the fact of the application of the law might have become known generally before the notification under section 16 was issued. In my view, the point is without substance. The action taken was of an emergent nature, and immediacy is within the contemplation of the empowering section, namely, section 16, in view of the grave consequences which might well be involved, in certain circumstances, by the supervention of delay. Section 16 reads as follows: "If the Provincial Government is of opinion that any association interferes or has for its objects interference, with the administration of law, or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette declare such association to be unlawful." It is conceivable that in favourable circumstances, where the danger is not so serious or so close as to require the making of an immediate order, the Government may well allow an interval to pass after extending the Act to a Province, before enforcing the Act against a particular association, in order that such bodies as have the tendencies specified in the section may be warned to amend their purposes and practices. But such a matter must lie within the discretion of the Government, to be founded on its estimate of existing circumstances, and it is not difficult to conceive of circumstances in which immediate action may reasonably be justified. In any case, the validity or otherwise of a notification under section 16 cannot conceivably depend upon the length of the period which has elapsed between the making of the notification of extension, and the delegalizing notification. There is no question of a new offence being created or of any body being constituted as an association under the Act which was not one before, and the grounds upon which the action may be taken are not of novel creation, but are matters germane to the most elementary duties of citizens, as well as of Governments, in respect of which the law, in different categories, is in continuous operation. Here, it may be mentioned that before the West Pakistan High Court, an affidavit was filed to the effect that certain consequential actions following upon the delegalizing notification we e taken by the Police even in advance of the making of the notification of extension. It was alleged that at 4 a.m. on the 6th January the Police party went to the house of the Amir of the Jamaat-i-Islami taking with them some members of the Jamaat's Council (Majlis-e-Shura) who had been arrested under the Maintenance of Public Order Ordinance. The offices and premises of the Jamaat-i-Islami were seized under section 17-A and an order under section 17-E of the Act of 1908 (enabling the Provincial Government to forfeit monies, securities and credits of the delegalized association) was served. Although these allegations were made, yet by the petition, no prayer was made for setting aside of the order under section 17-E, and on this ground, the High Court of West Pakistan refused to take note of the allegations. This was perfectly in order, but the facts alleged were not controverted and serve to show that a high degree o urgency was attached to the action by the Provincial Government in question. Even had a plea for avoidance of the action under section 17-E been put forward, the question would certainly arise whether upon the making of the order of extension a fresh order could not have been made to produce the same effect, and this would have a bearing upon the question whether quashment of the order already served under section 17-E would serve any purpose. Before the East Pakistan High Court, the point was raised that the consequential notification under section 17-A which enables the Provincial Government by notification to take possession of the offices of the association specified, was illegal, because the delegalizing notification and the notification under section 17-A were published simultaneously in the same Gazette. The High Court of East Pakistan accepted this contention and declared that the notification under section 17-A was issued illegally. As that Court had already found that the delegalizing notification was itself unlawful, the invalidation of the notification under section 17-A would evidently follow from that finding, and it was not necessary to find another ground for declaring it illegal. In my view, for the reasons I have already given, the second ground for avoiding notification under section 17-A is not valid immediate necessity to save the law and the public peace from being violated or disturbed may conceivably justify seizure of the office of an association simul?taneously with its having been declared unlawful on account o the tendencies aforesaid. With reference again to the order made in the case by the High Court of East Pakistan, which is in declaratory form, I observe that such an order may be made under Article 98 of the Constitution in respect of "any acts done or proceedings taken in the Province by a person performing functions in connection with the affairs of the Centre, Province or a local authority." The orders notified in the case are all expressed to have been made by the Provincial Governments, and not by any person, but a reference to the provisions in Part IV of the Constitution and in particular Articles 66 and 80 will make it clear that under the Constitution, the Governor in fact is the Provincial Government. Article 66 provides that there shall be a Governor in each Province, who shall be appointed by the President, and in the performance of his functions shall be subject to the President's directions. Article 80 provides that the executive authority of a Province is vested in the Governor of that Province and is to be exercised by him either directly or through officers subordinate to him and in this Article as well, it is repeated that such exercise of executive authority by the Governor is to be in accordance with the directions of the President. There are, of course, Ministers in each Provincial Government, but their function is described in Article 82 as being that of persons appointed to assist the Governor in the performance of his functions, and it was forcibly argued before us that the Governor is in no way bound by the advice which his Ministers may tender and is himself solely charged with the exercise of the executive authority of a Province, which duty he must discharge in accordance with the "Constitution, Law and the directions of the President". Great stress was laid on the fact that since each Governor concerned in this case was bound to act under the directions of the President, and the action was concerted, both actions could indeed be regarded as being in consequence of the operation of a single will. Accordingly, there need be no difficulty in holding that the declaration given by the High Court of East Pakistan is in respect of an act, namely, the issue of two notifications delegalizing the Jamaat-i-Islami and seizing its offices and that this was an act of the Governor, being a person performing functions in connection with the affairs of the Province. One major ground upon which the action taken in the two Provinces against the Jamaat-i-Islami was called in question was that, it being a political party, which had come into being, or at any rate been revived through the benefit of the Political Parties Act, 1962, passed by the National Assembly, the conditions under which the Jamaat-i-Islami could continue to exist and function as a political party must be sought exclusively within the pro-visions of that Act, which provided a judicial machinery for determining the life of a political party, by reason of its being within the prohibitions laid down by the Act, It was urged that in effect the delegalizing of a party under another Act was sub?stantially equivalent to dissolution of that party, and such a consequence, on grounds which were not grounds of prohibition under the Political Parties Act. 1962, and otherwise than by the procedure laid down in that Act, was not permissible. The two Acts were in conflict with each other on the same matter, and the later and special Act must prevail. A short account of the legal position of the political parties in Pakistan is of advantage for the amplification of this argument. When on the 7th October 1958, the Constitution of 1956 was abrogated by a Presidential Proclamation, and Government under Martial Law was substituted for the pre-existing representative Government in political form, all political parties were banned. In March 1962, a new Constitution was proclaimed which came into effect on the 7tlh June 1962, following the election of representative Assemblies, as provided by the new Constitution. It was thought expedient to prevent "unregulated organisations for political purposes" from coming into being "until the National Assembly of Pakistan has had time to examine the whole question of political parties after full and public discussion" and with this object an Ordinance was passed on the 9th May 1962, described as the Political Organizations (Prohibition of Unregulated Activity) Ordinance, 1962. The principal provision of this Ordinance was to debar the setting up of organizations by associations of persons with the object of propagating political opinions or otherwise engaging in political activity. In the schedule of the Ordinance, nine of the pre-existing parties which had been banned in 1958 were enumerated and among these the Jamaat-i-Islami finds a place. The Ordinance prohibited the use of any of the names mentioned in the schedule or any colourable variation of any such name, by any association formed "to propagate political opinions or otherwise to indulge in political activity". A powerful support for the prohibition contained in the Ordinance was furnished by Article 173 of the new Constitution which made it punishable for any person to hold himself out as a member of a political party or other organization, in connection with any election to be held under the Constitution, but this provision as well as the prohibitive provision in the Ordinance were made subject to a law of the Central Legislature. Such a law was the Political Parties Act, 1962, passed by the National Assembly on the 15th July 1962, with the assent of the President. It is entitled "an Act to provide for the formation and regulation of political parties" and after citing Article 173, the preamble goes on to say that it was "expedient to provide for formation of political parties and to permit persons to hold themselves out at elections as members of political parties". The subject-matter lay within the legislative competence of the Provinces, since it did not fall within any of the items enumerated as being within the exclusive legislative jurisdiction of the Centre, in the Third Schedule to the Constitution. Recourse was therefore had to Article 131 of the Constitution for the purpose of enabling the Central Legislature to legislate in the matter. A "political party" is defined in this Act as a body or association "setting up an organizational structure or collecting funds or owning property, with the object of propagating political opinions or indulging in any other political activity". Certain prohibitions were specified in section 3, namely, that no political party could be formed with one or more of three specified objects that is for making propaganda or taking action prejudicial to (1) the Islamic ideology, (2) the integrity and (3) the security of Pakistan. These prohibitions as to objectives were supported by a fourth prohibition which was based on a factual ground, namely, that the party had been formed at the instance of a foreign Government or a political party of a foreign country, or was affiliated to or associated with such foreign Government or foreign political party, or was in receipt of financial or other aid from such a foreign Government or foreign political party or even from foreign nationals. These prohibitions apart, by section 4, it was declared lawful to form a political party, to be a member or office-bearer of a political party, or to hold oneself out as a member of a political party. Learned counsel for the Jamaat-i-Islami stressed in particular the terms in which the last-mentioned franchise was granted. They are as follows (omitting irrelevant matter): "Subject to the provisions of section 3, it shall be lawful for any person, for the purpose of an election to be held under the Constitution, to hold himself out or any other person as a member, or to have the support, of a political party, the formation, organisation or setting up of which is not prohibited by this Act." It was contended that the condition of unlawfulness herein contained was exhaustive, and consequently, the lawfulness of such an action by any person could not be called in question in terms of any other Act, e.g., the Act of 1908. The point will require consideration at its due place. The provision for dissolution of 'a political party is con?tained in section 6 of the Act of 1962. It enables the Central Government to refer to the Supreme Court for final determination the question as to whether a political party "has been formed or is operating in contravention of section 3" and provides that where the Supreme Court has, after hearing the person or persons concerned, given a decision to that effect, the decision shall be published in the official Gazette, and upon such publication, the political party concerned "shall stand dissolved and all its properties and funds shall be forfeited to the Central Govern?ment." A further penalty provided is that any person who, after the dissolution of the party under the Act, holds himself out as a member of such party or acts as such or otherwise associates himself with the party, is liable to arrest and prosecution, but only with the previous sanction in writing of the Central Govern?ment. In aid of the argument that the sanction applicable to the continued existence and activity of a political party must be found within the Political Parties Act, 1962 exclusively, learned counsel referred to the special position enjoyed by political parties in countries with elected Assemblies operating in a political complex. Reliance was placed upon the expressions used in the Act of 1962 declaring it to be expedient that political parties should be formed with the object of "propagating political opinions and indulging in any other political activity" as indi?cating that, within the Presidential form of Government which was being introduced by the new Constitution, political parties were thought to be necessary and advantageous to the proper functioning of the new scheme of things. A political party, particularly one with a large organisational network has a collective personality and possesses constitutional importance from the presence which it enjoys and the image which it creates, through operating among the entire population, and making its existence felt at all levels of national activity, particularly in the sphere of administration. Political parties were entitled under the Act of 1962 to operate in their proper names, in relation to all elections to be held under the Constitution, i.e., elections to the Provincial Assemblies and to National Assembly. It would appear that this liberty was not to extend to elections at lower tiers in the representative/administrative structure, i.e., Basic Democracies and the various Councils set up under the Basic Democracies Order. Nevertheless, the influence of a political party which is capable of setting up candidates for the major Assemblies must necessarily be felt at lower levels as well. Even in respect of elections in which a political party could not under the existing law parti?cipate, a measure of influence in proportion to its standing in the public esteem and the extent of its organization could not be denied. The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the Legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legis?lative field, even to the extent of proposing and pressing for amendment of the Constitution itself. The National Assembly being fully aware of the massive and all-pervading influence of political parties organized on national scale, the grant of the franchise by the Act of 1962, following a period when political parties were under a total ban, must be construed as the expression of the will of the Central Legislature, which was assented to by the Chief Executive, that such parties should be allowed to operate with the maximum of freedom in the public interest, in other words, that their activities should be subjected to the minimum of necessary restriction. It was accordingly argued that in respect of political parties, the will of the Legislature and the Chief Executive was exhibited exhaustively in the Act of 1962 which contained specific restrictions limiting the scope of their objectives and their sources of financial and other support, together with a judicial procedure for applying the sanction of dissolution in the case of contravention of such prohibitions. It must be accepted that the intention of the Act of 1962 was that the existence or operation of political parties should not be interfered with otherwise than as provided by the Act of 1962. That Act must consequently be construed as repealing by expres?sion and necessary implication, in respect of political parties as such, the provisions of such an Act as that of 1908, enabling delegalization of associations generally, on grounds which, while important in themselves, cannot be raised to the same category as the grounds of prohibition specified in the Act of 1962. It was not to be supposed that a political party, whose existence was deemed expedient at the highest level for the proper operation of the Constitution, was yet capable of being interfered with in the same way as some small group, e.g., of terrorists or revolutionaries of the type with whom the Act of 1908 was intended to deal, for at that early period in the political develop?ment of India, a political party capable of influencing the Government in modifying its laws and its activities at the highest level was not within the contemplation or conception either of the people, or of those responsible for the good Government of the country. Reference was made to the terms of section 16 of the Act of 1908 which have been reproduced above, as indicat?ing that it was intended to provide the Provincial Government with a short-handed power to delegalize such groups, and evidently such an intention could not be extended to be applicable to associations on the largest scale, operating among the people at large, propagating political opinions, and "indulging in" other forms of political activity, and all that with, so to speak, the blessing of the National Assembly and the Chief Executive, which could only have been given in the belief that such activities were for the benefit of the administration and the functioning of democracy at large. The argument was developed that so long as a political party, as defined by the Act of 1962, was not brought into dissolution as provided by that Act, it was lawful, by virtue of that Act for it to continue to exist and carry on its activities, and, therefore, any order of any Government under any other law declaring such a party to be unlawful, on grounds moreover other than those specified in the Act of 1962, would be void and of no effect. This would be so, both by reason of the Act of 1962 being of later date, and also because it deals exclusively with a special and highly important category of associations, namely, political parties. On these two grounds, its provisions must be held to supersede by repugnancy those of the Act of 1908. Mr. Manzur Qadir presenting the case for the Central Government (his argument being adopted by the learned Advo?cates-General representing the two Provinces) replied to this argument with the contention that the Act of 1962 was not to be construed as a charter of liberty for political parties to operate as they pleased, and irrespective of the general law, particularly a law designed to enable the Provincial Governments to discharge their primary responsibilities for the administration of law in general, for the maintenance of public order, and for avoidance of danger to the public peace. The Act of 1962 must be construed as a measure of emancipation of political parties from the suppression which they underwent in consequence of the Revolution of the 7th October 1958, and the various disabi?lities imposed upon them under subsequent Martial Law Orders, and lastly, the Ordinance of 10th May 1962. It was contended that the provisions declaring political activities, even those having the quality of "indulgence", to be lawful were not to be read as if every purpose, however harmful and every act, however injurious to the administration of law, to the maintenance of public order and the public peace, it might be, was permissible to a political party so long as it was free of relation to any of the prohibited objectives, namely, objectives prejudicial to the ideology of Islam, or the integrity or security of Pakistan. It was urged that the Act of 1962 was not really intended to repeal all earlier laws applicable to assemblies and meetings, to the extent that such laws could of their own force apply to political parties as such. It was conceivable that a political party might either openly or secretly have anti-law or anti-public order objectives which were not within the objectives prohibited by the Act of 1962, and if so, could it be said that the intention of the later Act was to furnish protection to such a political party in respect of its mischievous purposes, merely because it was a political party? There were points of difference between the two allegedly conflicting provisions. Under section 16 of the Act of 1908, an association having the specified aspects of mischief to public order and the public peace could be delegalized and its activities would thus be brought to an end for the time being, and during the period for which it remained under the order. But upon the withdrawal of that order, the party would once again be free to continue its activities, and function as before. That was not the case with the sanction provided under the Act of 1962, which involved such a termination of the collective existence of a political party as implied that in order once again to come into being, it was required to be reformed. The particular point raised on the basis of the provision in section 4, subsection (3) of the Act of 1962, which has been quoted above was not met with a specific reply by Mr. Manzur Qadir, although here as well the point of distinction made was somewhat fine. It could perhaps be said that although a political party may be declared unlawful as such under section 16 of the Act of 1908, the franchise given by the provision in section 4 (3) might nevertheless prevail, that is to say, a member of such a party might yet hold himself out for the purposes of an election, but for no other purpose, to be a member of such political party, and it is conceivable that by such Act, he might well not incur the penalty provided by section 17 of the Act of 1908 for remaining a member of an unlawful association. This would appear to follow from the principle that repugnancy operates a repeal only to the precise extent that the two laws cannot exist together without the efficacy of the one being obscured by the operation of the other. That question would, of course, be required to be considered with greater thoroughness and in fuller detail if it should arise in a proper case. Again it might be urged with force that it is conceiv?able that by an order of one Provincial Government, made by way of precaution or to prevent actual prejudice to public order or the public peace, the activities of political party may be sus?pended in that Province by declaring its local organization to be unlawful while elsewhere in the country, it may enjoy the full franchise conferred by the Act of 1962. For the suspension could only be ordered on limited grounds, to achieve purposes of limited duration in time. In the High Court of West Pakistan, the view was taken that section 3 of the Act of 1962 lays down prohibitions only against the formation of parties, but once a party has been formed and comes thereby within the category of associations, it becomes subject to the general law of the land and thus to treatment under the Act of 1908 in a proper case. The learned Judges declared that they did not find that there was such a conflict between the two laws as would make it impossible for them to stand together, and they accordingly rejected the argument of implied repeal. In the East Pakistan High Court, the learned Judges after a short statement of the provisions of the two Acts came to the con?clusion that they operated in two entirely different fields. They rejected the contention that the Act of 1962 covers the entire field with reference to political parties, or that the franchise granted by section 4 of the Act of 1962 was entirely taken away as a result of an action under section 16 of the Act of 1908. In my opinion, while there are strong grounds for considering' that the Act of 1908 did not contemplate associations of the size or importance of political parties, such as have inevitably developed through the introduction of democracy in the sub-continent during the period of 56 years which has elapsed since that Act was passed, and further that the Political Parties Act of 1962 does, in its concept and contemplation, allow to political parties an importance and an assurance of existence which stand at an appreciably higher level than are allowable in respect of associa?tions in general, yet I find that when examined in sufficient detail, the provisions of the two Acts cannot he said to clash with each other so totally as to render the later Act nugatory in the face of the sanctions under the earlier Act. I find it impossible to deny the essentiality to the public interest of the existence of such power as is conferred by section 16 of the Act of 1908, to place associations with objectives gravely injurious to the maintenance of law and order and the public peace under abeyance. I find no difficulty in conceiving of a political party which may have the creation of anarchy by violence as its objective, either overt or concealed. Parties are known to have been formed in other countries with that proximate objective, and with the final purpose of bringing about a social or political revolution by violent means. Even in the sub-continent, an example may be found of a party organised on the largest scale, which in the name of gaining in-dependence for the country from foreign rule, embarked on a calculated course of action involving direct interference with the maintenance of law and order, and the administration of law and direct creation of such conditions as led inevitably to grave disturbance of the public peace. The Civil Disobedience Move?ment inaugurated in April 1930, by the Indian National Congress, by the breaking of the Salt Law at Dandi in the Province of Gujrat (now in India) furnishes that example. An account of the succeeding activities by that great political party, the Indian National Congress, is contained in chapter 2 of a publication of the Government of (undivided) India, entitled "India in 1930-31", and makes it plain that the expressed objective of the Civil Disobedience Movement was to carry out open defiance of the Government and the law. No Province was altogether immune. The vast number of instances there cited of breaches of the peace, of organised riots, of attacks on Government installations, of bomb outrages and derailments of trains serve fully to support the conclusion that "the main object of the Congress (which) was nothing less than to cause a complete paralysis of the administrative machinery". No less than 72 incidents of this kind occurred in the first phase ending July 1930, including the Chittagong Armoury raid, the Sholapur riots which led to the imposition of Martial Law, numerous bomb explosions and train derailments, in addition to a series of riots in every important city in India, and during the second phase ending in November 1930, some 76 incidents of the same kind are mentioned, besides a no-revenue campaign, and attempts to seduce the police and Government servants to victimize Government servants, and to set up a parallel Government with its own police stations and Courts, etc. In the third phase, ending the 5th March 1931, when an agreement was negotiated between the Congress and the then Viceroy of India, some 80 other incidents of the same kind involving in?terference with the administration of law, with the maintenance of law and order, and grave danger to the public peace are enumerated. The remarkable thing is that the Act of 1908 was at no stage used as against the whole party. The Government of the time preferred to deal with the situation with powers derived from the ordinary law and from a series of Special Ordinances, and the only declaration of unlawfulness was one made in June 1930, in respect of the Working Committee of the Indian National Congress. Eventually the situation was resolved by political methods. That instance is sufficient to show the clear possibility that even a great political party might have, and actively pursue, objectives which clearly bring it within the scope of the appli?cation of section 16 of the Act of 1908. I entertain no doubt that in such a case the duty of any Government charged with maintain?ing public order and public safety would clearly be to employ all means within its power to frustrate those objectives and terminate the consequential activities and one of the means such a Government may employ, is to place the association under a ban until such time as normal conditions can be restored and the association can be made, through administrative or political processes, to see the error of its ways and abjure its mischievous purposes. Accordingly, on a wider examination of the statutes and the issues involved than was attempted in either of the Courts below, I concur in the conclusion they reached, viz., that the power under section 16 of the Act of 1908 is not taken away by the later' enactment of 1962. It has been seen that power under section 16 is conditioned upon the formation of an opinion by the Provincial Government that the association in question either has one or more of certain specified objects involving interference with the administration of law or the maintenance of law and order, or that in itself, it constitutes a danger to the public peace. These are factual matters, the determination of which in the judicial sphere forms the every-day work of the Courts, besides falling, as I have observed already, within the primary duties of a Government. It is therefore germane to the discussion to state the allegations levelled against the Jamaat-i-Islami by the two Governments and the replies thereto. The allegations preferred by the West Pakistan Government are much the more elaborate. They are contained in a Press Note issued following the action taken, supplemented by affidavits. The statement of proximate causes for the formation of the Provincial Government's opinion is prefaced by an account of the ideology and the activities of the Jamaat-i-Islami in the period from 1942 to 1958. It is said that the Jamaat-i-Islami was hostile to the concept of Pakistan and that its Amir, Maulana Maudoodi has always maintained this attitude and loses no opportunity to foment trouble and create agitation against the Government and the State. The Jamaat-i-Islami has infiltrated into governmental, labour and student organisations with the overall purpose of seizing power and setting up a "fascist regime". The Jamaat-i-Islami has denied that Pakistan is an Islamic State, and holds the view that no Muslim can take the oath of allegiance to the Government, because it is un-islamic. It declared that the Kashmir "war" could not be styled a jehad in the true sense. Maulana Maudoodi was arrested in 1948 and remained under deten?tion till 1950. The Jamaat-i-Islami participated in the Provincial Elections of 1951 and succeeded in winning one seat. During the Martial Law at Lahore in the year 1953, Maulana Maudoodi declared that the objective of the Jamaat-i-Islami was to replace the existing Government by one of its own conception, namely, an Islamic religio-political system. He said, however, that he would stop short of armed rebellion. The Jamaat-i-Islami has sponsored an institution known as the Jamiat-ul-Tulaba under its direct control to work among the student community. Some proofs were adduced of connection between the Jamaat-i-Islami and the Jamiat-ul-Tulaba in the years 1951 and 1958. As to activities after 1958, it was said that certain student disturbances which took place during an address of a Central Minister, Mr. Zulfigar Ali Bhutto, to the Panjab University students in February 1962, were carried out under the directions of the Jamaat-i-Islami. About the same time, the Jamaat had openly supported one Usman Ghani of the Jamiat-ul-Tulaba for election as President of the Panjab University Union, and even spent money for the purpose. It was declared that the Government had "substantial evidence" in its possession to show that recent student disturbances in Lahore and other places of the Province were directly incited by the Jamaat-i-Islami. The party had also created difficulty in the foreign relations of the country by making a vicious attack on the Iran Royal family in a monthly paper issued by Maulana Maudoodi called the Tarjurnan-ul-Quran. The Government also had in its possession "concrete evidence" to show that the Jamaat-i-Islami was receiving a large measure of financial support from some foreign sources hostile to Pakistan. Summarizing the nature of the complaint against the Jamaat-i-Islami, it was said that the party was "attempting to subvert the loyalty of the people to the State and the Government", its objective being "to acquire political power, whether by peaceful means or by force". A solitary instance of a speech by the Jamaat's General-Secretary, Mr. Tufail Muhammad, delivered on the 7th September 1963, wherein the accused "the Government of attempting to bribe the armed forces and the armed forces of succumbing to such bribery" was cited as proof of an attempt "to create hatred and disaffection against the established Government in Pakistan". Each one of these allegations was totally and categorically denied by the petitioners before the West Pakistan High Court, citing chapter and verse from published declarations. It was claimed that the Jamaat-i-Islami had always been in support of the Government and had actually proclaimed this in October 1963. The allegation that the Jamaat-i-Islami was hostile to the concept of Pakistan was denied, as well as that relating to the Kashmir "war". And as to the oath of allegiance, it was said that objection had really been taken to an attempt by the Punjab Government in 1948 to oblige Government servants to take an oath to the Government of India Act, 1935, which had been passed by the British Parliament. It was admitted that the object of the Jamaat?i-Islami was to bring about a purely Islamic State, but always by, peaceful methods and within the Constitution and law. The Constitution of the Jamaat-i-Islami forbids any method leading to disorder or breach of the public peace, and on the other hand enjoins activities for encouraging the democratic spirit, and the spirit of social service, such as study of labour welfare problems, and settling of disputes by peaceful methods, thereby frustrating the efforts of the Communists. Association of the Jamaat?i-Islami with the Jamiat-ul-Tulaba was denied and so were the allegations of connection with the alleged student distur?bances in 1962 and later. As to the article concerning Iran, Maulana Maudoodi's paper had merely reproduced the views of Maulvis of Iran and Iraq concerning the Royal family of Iran, to which the Iranian Government had issued a reply through their Embassy in Karachi, and this was also printed. The allegation of receiving help from foreign countries was categorically denied. It was said, in proof of the Jamaat always keeping within the law, that neither the Jamaat nor any of its members had been prosecuted for any offence. With reference to this the Government's reply was that a number of important members of the Jamaat-i-Islami were warned from time to time to desist from their activities and that some houses were searched and objectionable matter found, but no legal action was taken. The Press Note issued by the East Pakistan Government was very brief and almost devoid of details. It was said that the Jamaat-i-Islami started with an anti-Pakistani bias, declaring that the Government was not being conducted in accordance with Shariat, and had preached disaffection and disloyalty, covertly and often openly. Without furnishing details, it was said that the activities of the Jamaat posed "a threat to peace and tranquillity", that the party was attempting disruption of the administrative machinery and was infiltrating into the services with the object of seizing political power by creating chaos. It is noteworthy that no mention is made in this communique of any work among students or labour organizations. In the writ petition, a lengthy account was given of the Jamaat's objectives and activities. The allegations of preaching disaffection and disloyalty, of attempting disruption of the administrative machinery, and of trying to create chaos by the methods alleged were categorically denied. It was emphasised that no single case had been brought against the Jamaat or its members. In an affidavit in reply the Government stated that a number of members of the Jamaat had been warned concerning their activities and some houses were searched, but no legal action followed. In each case the Government maintained that it could not stand by and allow these dangerous activities to continue as that would be failure to discharge its functions. In the view which I take of what should be the proper order to make in a case of this kind, it is undesirable that I should attempt to assess the weight of the allegations against the Jamaat-i-Islami and of the replies made thereto. I am of the opinion that there should be a judicial investigation into the case which is developed by these allegations and the replies thereto, and I do not exclude the possibility that in the event, the action of the Provincial Governments or either of them may be found to be supported by reasonable cause and even by sufficient cause, within the meaning of section 16 aforesaid. The purpose of the section is not exclusively punitive or even suppressive of action appre?hended. It has a precautionary aspect as well, as is shown by the reference, to "objects" in the section, and it would be as much the duty of the Government to act in relation to a potentiality for mischief or danger, which has appeared sufficiently clearly, as it would be if that potentiality had been translated into action. The constitutional ground of attack upon the orders impugned in this case is founded on the Fundamental Right of freedom of association which became part of the Constitution on the 10th January 1964, by virtue of the grant of assent by the President to an amendment passed by the National Assembly. The freedom is expressed in the following words: "Every citizen shall have the right to form association or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order." The argument presented was that in consequence of the orders made by the two Provincial Governments on the 6th January, persons namely, members of the Jamaat-i-Islami, were restricted in the exercise of this right by their association being declared unlawful, and that, whatever the condition may have been before the Fundamental Right came into force, that restriction was no longer valid on or after the 10th January 1964 by reason of its not satisfying the condition of being a "reasonable restriction imposed by law in the interest of public order". The argument was carried further to the point of requiring that the Act of 1908 in section 16 and the consequential sections was void inasmuch as it rendered the Fundamental Right of association subject to disallowance upon the mere opinion of the Provincial Government. Strong support was available for this argument in the grounds of decision of the Supreme Court of India dealing with the same section, as against similar Fundamental Right granting freedom of association, in the case of V. G. Row (AIR1952SC196). There, the associa?tion in question was a society registered under the Societies Registration Act and known as the People's Education Society, which was alleged to be actively helping the Communist party in Madras which had been declared unlawful. The Constitution of India granting the Fundamental Right of freedom of associa?tion was promulgated on the 26th January 1950. On the 10th March 1950, the Provincial Government of Madras issued an order under section 16 of the Act of 1908 declaring the People's Education Society to be an unlawful association, and a month later, the Society moved the High Court for an order quashing the said declaration as being in violation of the Fundamental Right aforesaid. On the 12th August 1950, the Act of 1908 was amended by the Madras Legislature, and the following additional provisions which found no place in the Act were included. It was required that the notification of unlawfulness should specify the grounds on which it issues, and should furnish particulars and at the same time should fix a reasonable period within which the' --person aggrieved might make a representation to the State Govern?ment against the order. After expiry of the time so fixed, the case was to be placed before an Advisory Board constituted by the Government which would consider the facts placed before it by the Government as well as the representation of the aggrieved party, and was empowered to call for further information from either party and finally to submit its report to the Government. Where the Board reported that there was no sufficient cause for the issue of the notification the Government was under duty to cancel the notification. The Supreme Court of India after stating that the power of judicial review of legislation had been conferred upon the superior Courts in India by the Constitution, went on to consider whether the restrictions laid down by the amended statute could be regarded as reasonable. The High Court had issued the writ as prayed, holding that the restrictions were not reasonable on the grounds of inadequacy of publication of the notification, failure to fix a time limit as required by the Legislature either for sending the papers to the Advisory Board or for the Board to make its report, failure to make provision against enforcement of penalties by Government in the meantime, and denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board. The Supreme Court of India referred to an earlier case, that of Dr. Khare (A I R 1950 S C 211), where it had been held that in considering what constituted "reason-able restrictions" both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness. Elaborating this observation, they said that the Court should consider "not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposi?tion has been authorised". The test of reasonableness was to be applied in every case individually, and not with reference to any abstract standard or general pattern of reasonableness. They went on to observe: "The nature of the right alleged to have been infringed, the underlying purposes of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the dispro?portion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." The limit of interference with legislative judgment in such cases could only be dictated by the sense of responsibility and self-restraint of the Judges and "the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." They emphasised the fact that the Fundamental Right was placed by the Act of 1908, even as amended, under restriction by the Executive Government "without allowing the grounds of such imposition (i.e., of restriction) both in their factual and legal aspects, to be duly tested in a judicial enquiry". They thought that the summary and "largely one-sided review by an Advisory Board" could be no substitute for a judicial enquiry, even though the Board's verdict might be binding on the Government. They dealt also with certain earlier cases decided by the Supreme Court of India where deprivation of personal liberty and liberty of movement had been ordered under provisions which require reference of the Government's order to an Advisory Board, and the Court had held that such a provision was sufficient to con?stitute the restrictions as "reasonable" within the meaning of the Constitution. They pointed out that in each of the earlier cases there was involved "an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appropriate action on their own responsibility." In their view, such a danger was absent from the grounds upon which under the Act of 1908, associations could be declared unlawful. They thought that the conditions covering the power of delegalizing were not anticipatory or based upon suspicion, but were factual and as such "amenable to objective determina?tion by the Court". Stress was laid on the facts also that the impugned Act did not make any provision for adequate communi?cation of the Government's notification of delegalization to the association or its office-bearers, that no provision was made for service of the notification upon the association, and that mere publication in the official Gazette was insufficient to establish that notice had been served, so that if the time expired before the association knew of the declaration, the right for making a representation would be lost. For these reasons the Court upheld the decision of the High Court of Madras and declared that the law in question "falls outside the scope of authorised restrictions and is therefore unconstitu?tional". The East Pakistan High Court has relied mainly on the argument as elaborated in this case, for holding that section 16 of the Act of 1908, is unconstitutional and void as impos?ing restrictions upon the Fundamental Right of freedom of association which are not reasonable. They held that the order of the 6th January 1964, was an order which took effect as a restraint upon the exercise of the Fundamental Right for every day during which it remained in force. It could not be regarded as a "past and closed transaction", to which the aspect of constitutionality could not be applied by virtue of the transaction having been completed before the constitutional right in question came into being. They held the view that although before acting under section 16, the Provincial Government was under a duty to satisfy itself objectively that the conditions applicable to the exercise of the power were satisfied, yet this was purely for its own information. Section 16 did not oblige the Government to state the grounds for its action, or to give the association affected an opportunity to be heard, nor did it afford scope for challenge to the order before any other authority, or before a Court. The restrictions under the Act of 1908, in their effect upon the Fundamental Right of freedom of association were accordingly held to be not "reasonable". In the judgment of the West Pakistan High Court, the ques?tion whether the law of 1908, in itself, violates the Fundamental--Right of freedom of association was not examined with fullness, in the main judgment delivered by the Chief Justice and two learned Judges, it being said that the argument in the case of V.G. Row referred to above was not relevant, since the order in question in that case had been made after the Fundamental Right had been enacted into law. The stress in the main judg?ment is laid upon the fact that in the case before the learned Judges, the order under section 16 was made before the Funda?mental Right became law, and the conclusion was reached that that order became final as a "past and closed transaction" on the 6th January 1964, to which the limitations of the Fundamental Right had no application. There were two separate judgments by Inamullah, J., and Wahiduddin Ahmad, J. The judgment of Inamullah, J., does not deal with the question of conflict between the Fundamental Right and the Act of 1908. Wahid?uddin Ahmad, J., however, came to the conclusion that the order of the 6th January 1964, was not a "past and closed transac?tion", but was an order whose effect was to continue from day to day until it was withdrawn, and that it was an order made under an enactment which did not provide "reasonable restric?tions" within the meaning of the expression of the Fundamental Right of free association. The learned Judge thought that even if an action was taken in emergency some form of enquiry should have been provided and went on to observe that "the party in power should not be made the sole judge of such matters". He thought, therefore, that the Fundamental Right in question had been denied, but coming to consider whether the order should be quashed, the learned Judge observed that there were "serious allegations" and he hesitated to make a "hasty order" of quashment, on the ground that it was still possible for the Govern?ment concerned to amend the 1908 Act, and they might well do so with effect from the 10th January 1964. The power to issue the order sought was given to the Court in discretionary terms and in declining to exercise it, the learned Judge purported to rely on the case of Rehmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633). It should be pointed out, however, that, in the last-mentioned case, the order in question was an order made by a statutory authority under the law, and such an order as is well-known, may be withdrawn at any time. Amendment of the law is a wholly different matter, and is not to be thought to be within the powers of the Government to bring about. With respect, the view of the learned Judge that the possibility of the law of 1908, being amended with retrospective effect from 10th January 1964, was a sufficient assurance of relief in the case, is difficult to support. Where a Fundamental Right is denied, which the Courts are obliged to enforce (vide the new subsection (c) to clause (2) o Article 98 of the Constitution), a suppliant cannot be left to such a doubtful relief. On the view taken by the learned Judge, it was incumbent upon him to seek some mode by which in law, it might have been possible for him to grant relief against the deprivation of a Fundamental Right, which he had expressly found. The third main argument raised against the Provincial Governments' orders was that these being in derogation of a private right, the imposition of the restriction was subject to the rule of natural justice that the affected party should have been given a hearing at least. The rule of audi alteram partem applied not only to judicial and quasi-judicial tribunals, but was incumbent also upon authorities exercising administrative powers where such powers infringed upon the private rights of indivi?duals. A considerable number of judicial precedents were cited before each of the High Courts, including a number of authori?tative pronouncements of this Court, delivered under the Consti?tution of 1956. The treatment of the argument, in the main judgment delivered by the High Court of West Pakistan was as follows. The learned Judges after examining the terms of section 16 and the circumstances under which the orders there-under were made, came to the conclusions (1) that the Legislature never intended to impose any duty upon the statutory authority to determine judicially whether the conditions of imposition of the restriction were satisfied, (2) the imposition rested "purely (on) the subjective mind of the Provincial Government", which was not obliged to give reasons for its opinion, (3) the Provincial Government was the sole judge in the matter, and "no appeal, review or representation was provided against its order", and (4) the decision is therefore neither judicial nor quasi-judicial, but an administrative act to meet an emergency, and therefore the grant of a prior hearing was out of the question. Inamullah, J., in his separate judgment came to the same conclusion, holding that the rule of prior hearing did not apply to all administra?tive orders, and that under the Act of 1908, "the determination of the question admittedly is purely subjective, and the authority is, in no way, required to act judicially". Wahiduddin, J., held to the contrary, on the ground that under the Act of 1908, "the Provincial Government had to form its opinion not on suspicion, but on factual existence of certain grounds capable of objective determination". In the judgment of the East Pakistan High Court, the treatment of the argument is brief. No precedent cases are discussed or even mentioned, and the argument was rejected on the following grounds, viz., (1) the rule of prior hearing "has no application to an administrative or ministerial order", (2) the function of the Provincial Government under section 16 can "by no stretch of imagination be called judicial or quasi-judicial in nature", (3) although some ascer?tainment of fact is necessary for the discharge of this function, yet this is only for "informing the mind of the Government", and "the order can be passed on the subjective satisfaction" of that Government, and (4) urgency is of the essence, therefore, prior notice is not essential. The question whether it is within the contemplation of the law and the Constitution that protection for the private rights of citizens may be reconciled with safeguarding of the public interest, by the grant of statutory opportunity to challenge the correctness of the order, in fact and law, after the imposition of the restriction, is not discussed in any of the judgments delivered in the two High Courts. In my view, the point has a bearing upon the ascertainment of the proper remedy in such cases, and I shall have occasion to mention it in greater detail in the sequel. Mr. Brohi, appearing for the private parties in these appeals, has stressed again the arguments which were advanced before the High Courts on these two points, viz., the violation of the Fundamental Right of free association and the denial of a hearing before the orders were made. He urged that the orders could in no sense be regarded as "past and closed transactions", since they were continuing in their effect, and while no time limit was fixed, they were capable of withdrawal at any time. Consequently, these orders constituted, from moment to moment, a restriction upon the exercise of the Fundamental Right, and the Courts were in no way debarred from examining the question whether the restriction was reasonable. The very word "reason-able" itself attracts the judicial process of ascertainment of the quality of consistency with reason. The plea of "subjective satisfaction" could not prevail, for the judgment of the statutory authority was to be based upon consideration of such elementary matters of fact, within the day-to-day experience of a Provincial Government, as interference with the administration of law, or the maintenance of law and order, and constituting a threat to the public peace. There were numerous laws relative to these matters which were in constant operation, so that factual aspects relevant to these matters were fully within the public conscious?ness. The rights of members of the public, under the Constitu?tion being involved, as against the duty of the authorities to maintain law and order, the restriction of these rights could not be rendered subject to the mere ipse dixit, or whim, or even the will of the Provincial Government. There was every reason to require due process in the ascertainment of the necessary condi?tions as matters of fact. Here no opportunity to show cause had been given before the orders were made for the law did not require it and it must be assumed at the very least that they were made on one-sided and unchecked information. No opportunity was given, or was required by the law to be given, to show cause even after the order was made. It was urged that the enabling provisions of the Act of 1908 did not satisfy the constitutional requirement of being "reasonable restrictions" upon the Funda?mental Right of free association, and the law must therefore be declared void. The effect would be different from that which, under the General Clauses Act, 1897, follows upon the repeal of a statute, so that action already taken would not survive the avoidance of the law. This would follow for another reason as well, namely, that the Court must act to preserve and enforce the Fundamental Right in question, as and after the 10th January 1964, and must not tolerate interference with that right on any day on which it is shown that the right is being infringed otherwise than as permitted by the Constitution. Mr. Brohi also relied strongly on the necessity of applying the rule of "audi alteram partem" in a case of administrative interference with an important right of the subject, namely that of free association, which did not derive only from the adoption of the relevant Article in the Constitution on the 10th January 1964. There must be a hearing before such an order was made, although he was prepared to concede that, where an order had to be made emergently to avert a situation of peril to law and order, or to the public peace, there were statutory examples of the right to a hearing being postponed to follow the making of the order. I understood him also as being prepared to allow that the exercise of the power of judicial review might, in certain circumstances, be a sufficient safeguard for the private right in question, in consistency with the duty of preserving the public interest. Mr. Manzur Qadir's argument, supporting the validity of the order was to the following effect. He contended that by expression, the law imposed a restraint, applicable by order of the Provincial Government, by reason of one of three potentially or actually injurious activities, namely, interference with the administration of law, or with the maintenance of law and order, or being in itself a danger to the public peace. It could not be said, he urged, that restriction by reason of one or other of these injuries or potentialities was in itself unreasonable, and that was a full and complete justification of the law. The aspect of the authority by which and the ground upon which the restriction was to be applied was in his view to be treated separately from and quite independently of the reasonableness of the restrictions placed upon the freedom in question by the law of 1908. But with respect to this latter test also, he urged that it was a sufficient safeguard of the rights of citizens that the restriction could only be placed by order of the highest authority in the Province, namely, the Provincial Government and the condition of its placement was that the Provincial Government should hold the opinion that such action was necessary to prevent interference with the administration of law or the maintenance of law and order, or the creation of danger to the public peace. In support of this argument, Mr. Manzur Qadir relied upon the view ex-pressed in the judgment of Chagla, C. J. in the case of Bapurao (A I R 1956 Bom. 300), in which (I say so with respect) a very great impor?tance appears to have been attached to the "satisfaction" of the Commissioner of Police, when imposing restrictions on the right of assembly possessed by citizens of Bombay. The case came before the Bombay High Court on an application by Bapurao for transfer to the High Court from the Court of a Magistrate, of a prosecution against him for infringement of an order made by the Commissioner of Police prohibiting "any procession of five or more persons" for a period of 15 days in the first instance, which was extended by further orders of the same officer. The ground raised for transfer was that the case involved a question of infringement of the Constitutional right of assembly. The order had been made under the Bombay Police Act, under a provision of which the condition was that the Commissioner of Police should consider the prohibition necessary for the pre?servation of public order. The observations of the learned Chief Justice on which reliance was placed were the follow?ing:‑ " . . . the Legislature has left it to the satisfaction of the Commissioner of Police as to whether there is an emergency which calls for the issuing of such an order . . . . It is not any one else's satisfaction, it is not any one else's judgment that has to determine or decide whether such an order should be issued or not. It is only the opinion and decision of the Commissioner of Police that is conclusive in the matter . . . It cannot possibly be a matter of judicial determination as to whether there was necessity for the issuing of the order. Therefore to suggest that there should be a judicial corrective or some appellate authority to sit in judgment on the Com?missioner of Police would completely stultify the object of the Legislature in conferring upon the Commissioner of Police those wide powers." It was held in the result that the restriction was a reasonable one imposed in the interests of public order, and there being no infringement of the Constitution, the application for transfer was refused. The passages quoted above may give the impression that the learned Chief Justice found an assurance of the Consti?tutional rights of the citizens of Bombay in the fact that they were, in the particular respect, enjoyed at the will of so exalted an official as the Commissioner of Police, whose mere opinion of the existence of an emergency was to prevail, so that the resulting deprivation of private rights was immune to judicial interference. The fact of the prosecution, however, afforded an opportunity for judicial review of all the circumstances of the prohibition, and for my part, I would have thought that a fuller and better appreciation of the constitutionality of the law, as well as of the order made thereunder, might have been gained had the prosecution been presented, and the full facts ventilated in the High Court of Bombay. For the argument that "reasonable restrictions" must be judged exclusively in relation to the expression of conditions of restriction, as laid down by the law in question, Mr. Manzur Qadir placed reliance upon the dissenting judgment of Shah, J. in another Bombay case, that of Jesinghbhai (A I R 1950 Bom. 363). That was a case of an externment order, and the law had been challenged, inter alia, on the ground that it was not equipped with the incidents of "due process" and was therefore violative of the Constitution. The majority of the Bench upheld the challenge, but the view of Shah, J. was that if the restrictions, or conditions of restriction, as expressed in the Act were in themselves reason-able, it is not open to the Court to "enter into an enquiry either that in the enforcement or imposition of the restriction . . . . the authority may act unreasonably, or that the statute which provides for the imposition of the restrictions on fundamental rights is an unreasonable statute". The learned Judge went on to observe that "absence of a provision for being heard either before or after the passing of the order . . . . cannot . . . . render the provision void" as against the Constitution, which itself made no such provision, and rules of natural justice could not be involved to import such a requirement. With respect, the. Constitution in question expressly gave the Courts power of judicial review of legislation, and reason in such affairs being peculiarly the province of the Judiciary, it is surely within judicial review to examine both as to the reasonableness of the law 1 itself, as well as the reasonableness of the mode of application, of the restriction, whether such mode be prescribed by the statute or not. The contrary view was pronounced by the Supreme Court of India in the case of V. G. Row (cited above). It has been asserted in two decisions of the High Court of West Pakistan cited as Bazal Ahmad Ayyubi v. The West Pakistan Province (P L D 1957 Lah. 388) and Rao Mahro Akhtar v. The Province of West Pakistan, etc. (P L D 1957 Lah, 676), and I am, with respect, in full agreement with these decisions on this point. Mr. Manzur Qadir further attempted to support the views expressed in favour of the immunity of administrative decisions under law from judicial review, on the grounds which were mainly those advanced in the main judgment delivered in the High Court of West Pakistan and the separate judgment of Inamullah, J. He cited in support a number of other decisions, besides those considered in those judgments, but with these I do not propose to deal in detail. He appeared to support the conclusion in those judgments that the orders under challenge were "past and closed transactions", and argued that even should the law of 1908 be held void, the efficacy of these orders was preserved by virtue of the provisions of the General Clauses Act, 1897. The latter argument was expressed in the following form?if repeal of a law, which has the effect of excising the law from the statute book is ineffective to avoid actions already taken under the law prior to the appeal, then a fortiori a mere declaration that the law is void, for violation of a con?stitutional provision, which only operates to render the words of the law meaningless and ineffective, cannot have any greater effect. Here the law was in full effect on the 6th January 1964 when the order was made, and the later constitu?tional provision could not avoid the law retrospectively. The view that the expression "reasonable restrictions" in a case like the present should be considered exclusively in, relation to the factual grounds on which the law imposing the restrictions declares that they may be imposed is one, which in my view, cannot be accepted by a Court which is required to enforce a citizen's right of free association as formulated in the Constitution. The citizen is entitled to approach the Court' for a declaration, firstly, that his freedom has been restrained under law, and secondly, that it has been unreasonably restrained, and for the determination of the latter question, I find it impossible to exclude from consideration, the circumstances of the application of the restraint. A circumstance of over-powering importance, where the Constitution guarantees such a freedom, would be that the restraint has been applied by a person in autho?rity acting merely on his own opinion. I may here cite in support a short passage from the judgment of the United States Supreme Court in the celebrated case of Yick Wo (30 Lawyers' Edition, p. 220) : "For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Although some weight might be allowed to the contention of Mr. Manzur Qadir that the Courts should assume that an opinion of the Provincial Government in a case like the present has been formed in a responsible manner after a proper exami?nation of the relevant facts, yet I do not conceive that the intention of the Constitution is that the citizens shall enjoy their Funda?mental Rights subject to an opinion based, however responsibly, on the mere one-sided appraisement of such facts as have been brought to the notice of the authority making the order. Great importance is to be attached to the fact that the Constitution itself makes the Governor, namely a single person, the sole source of executive authority in the Province. To accept the view advanced by Mr. Manzur Qadir would be in effect to cause the opinion of a single person to prevail against the Fundamental Right of all the citizens, over whom he is to exercise executive responsibility and power in the particular respect. The Courts cannot regard themselves as satisfied that the citizen's freedom has been subjected to a reasonable restriction unless it is proved to their satisfaction that not only the grounds of the restrictions as stated by the law are reasonable in themselves, but they have been applied reasonably as required by the Constitution. The only manner which the Courts themselves would regard as reason-able is that existence of the factual grounds of the restriction should have been established in the mode which the Courts recognize as essential where a right to life or liberty or pro?perty is concerned, namely, after a proper hearing given to the person concerned. (I postpone for later consideration the question whether to grant the hearing after making the order, can ever be reasonable). Any presumption that the authority in question has acted in accordance with justice or reason or equity, if made by the Courts in respect of such actions would, in my opinion, amount to a denial of the duty which the Courts are called upon to discharge in respect of these fundamental matters. The duty of the Courts would be thus to apply the principles o reason and justice according to the procedures with which they are familiar, to the ascertainment of the questions whether the restrictions in themselves are consistent with justice and reason, whether the conditions for their application have in fact been established, and whether they have been applied by competent authority. These are matters falling within the large principle of judicial review as a power possessed by the Courts for the correction of excesses in action under law. I do not propose to concern myself with the question of applying judicial review to the legislative measure itself, that is the Act of 1908, in the light of the Fundamental Right, for the reason that the order in question was made before the Fundamental Right came into operation, and can be thought to be within the terms of the law, namely, the Act of 1908 at the time when it was made I propose to confine myself to consi?deration of the questions whether the orders made are consistent with the relevant Fundamental Right, that is whether the citizen is not entitled, in view of the freedom guaranteed to him, to have relief against the restrictions so placed upon him, and if so, bearing in mind all the relevant circumstances, including the general interest of public safety and public order, what is the relief that should properly be allowed. Since it is my opinion that a sufficient relief in this case would be to subject the order in question to judicial review, it is appropriate that I should state here what I accept as the general principles applicable to judicial review, in respect of executive acts. Judicial review, it has been said, has developed "even as the Common Law itself, gradually, from case to case, in response to the pressures of particular situations, the teachings of experience, the guidance of ideal and general principles, and the influence of legis?lation". It has developed in the hands of the Courts, which have the power of final interpretation of statutory laws, and a concomitant power to provide judge-made remedies where the statutes are silent. The function of judicial review is to act as "a check against excess of power in derogation of private right", yet judicial review cannot supervise all administrative adjudications, for it exists to check, not to supplant them. Accordingly, if on a point of law, the administration has adopted a construction, which is a possible one, the Court will support the action. On a point of procedure, the essential duty is to secure fairness, for Court procedure is not the only fair procedure, N but minimum standards are necessary. On a point of evidence, it is only when the case proves to be one of "no evidence" that the Courts will be entitled to intervene, and as to the conclusions reached by the administration, the Courts will respect them if all other conditions are satisfied, just as they respect the judg?ments of the Courts subordinate to themselves. The conditions of the exercise of judicial review ordinarily are that the petitioner should have locus standi to pursue the 'hatter, that an adversary position should have developed, i.e., that conflicting legal stand points have been taken so that justiciable issues are raised, that the action within the administration should be final, and that the law itself must not indicate that the public interest requires that it should be operated exclusively within the administrative sphere. It may be stated here that all these conditions are satisfied in the present case. I am indebted for the above propositions pertaining to judicial review to a United States Government Paper, viz. the Report of the Attorney-General's Committee on Administrative Procedure in Governmental Agencies 1951). Judicial review is not necessarily based upon the rule of "due process" as incorporated in the Fifth and Fourteenth Amendments to the Constitution of the United States. I am aware that in the Jibendra Kishore's case (P L D 1957 S C (Pak.) 9 at p. 31) this Court has observed: "our Constitution does not use and could not have used the due process of law clause in guaranteeing primary rights in the sense in which that clause has been interpreted by the Supreme Court of the United States ??..It is thus obvious that in determining the constitutionality or otherwise of statutes in Pakistan, we cannot have that approach to the question because there is no provision in our Constitution which is capable of such a flexible meaning as the `due process of law' part of the Fifth and Fourteenth Amendments." I would prefer to base such reliance as is required for the purposes of my argument, on the necessity of "due process", upon the fact that it is an element of justice which forms an essential part of British Common Law, deriving' from Royal Statutes of date as far back as 1351 A.D. The subject has been dealt with in Willoughby's Commentary on the Constitu?tion of the United States, 1929, Volume III, page 1681, where it is shown that in those early statutes from which the Common Law has developed the expression "due process of law" was deemed to be synonymous with the expression "the law of the land". One of those statutes explained the expression "due process of law" as meaning "by indictment or presentment of good and lawful men where such deeds be done or by writ- - original of the common law", in other words by proper trial. In a Statute of 1355 it was said that : "No man of what state or condition soever he be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought into answer by due process of law." The emphasis of the words "brought into answer" is impressive. In an earlier Statute of 1351, a similar expression was used to express the condition under which the citizen might be arrested or deprived of his franchises, viz., "unless he be fully brought in to answer and forejudged of the same by the Courts of the law". As I will presently show, these principles are in active operation through the British Courts of Justice, but here I continue with the statement of the discussion in Willoughby's book above cited. The learned writer declares that wherever constitutional rights were involved, the United States Supreme Court has always upheld the power of judicial review by fresh appraisement of evidence as well as law, while at the same time giving due weight to administrative findings that have been reached after hearing and receipt of evidence. But where no constitutional right was involved, judicial review has been confined to the record of the hearing and evidence before the agency and to determination whether there was excess of power. Two cases of a remarkable nature which are cited by Willoughby may be treated at some little length. Each of them relates to railway rates fixed by Statutes of States. The first case is cited as the Chicago Milwaukee & St. Paul Railway Cor?poration v. Minnesota (134 United States 418). In this case, the State Court of Minnesota had issued a writ of mandamus to the Railway Corporation directing it to comply with the orders of the Railway Commissioners and change its tariffs to bring them into conformity with the rates fixed by the State law. The Supreme Court made the following observation : "The question of the reasonableness of a rate charged for transportation by a railway company, involving, as it does, the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial deter?mination, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the use of its property and thus, in substance and effect, of the property itself without due process of law, and in violation of the Constitution of the United States, and in so far as it is thus deprived, while other persons are permitted to receive reasonable profits for their invested capital, the company is deprived of the equal protection of the law." The order made in the case is of great interest. It was directed that the case be remanded to the Minnesota Court "with an instruction for further proceedings not inconsistent with the opinion of this Court". I construe that to mean that the Supreme Court required the Minnesota State Court to subject the Statute of Minnesota to a full scale judicial review on facts and law. The second case is that of Smyth v. Ames (169 United States 466) where a similar statute of the State of Nebraska fixing railway rates was challenged by means of a suit. There had been extensive enquiries under-taken by a statutory board upon the basis of whose recommenda?tions the law fixing the railway rates had been based. It appears that the whole process of examination of all the relevant circumstances, including extensive accounting, was gone through again before the trial Court, and the conclusions reached were firstly, that the companies were entitled to a fair return upon the value of their property laid out for the public convenience, secondly, that the public were entitled to be charged no more than the services were reasonably worth, and thirdly, that the rates fixed by law in 1893 were such that if they had been applied to the working of the three previous years, the Companies would have suffered actual loss. These views were upheld in the Supreme Court, and the law was declared unconstitutional. In the course of its judgment, the Supreme Court made the following observation : "While rates for the transportation of persons and property" within the State are primarily for its determination, the question as to whether they are so unreasonably low as to deprive the carrier of such compensation as the Constitution secures, cannot be so conclusively determined by the Legislature of the State or by regulations adopted under its authority, that the matter may not become the subject of judicial enquiry." An interesting feature of the latter case is that the Supreme Court confirmed a direction by the State Court to the effect that should economic conditions change for the better so that profitable working at the rates fixed by the State law became possible, the State was to be at liberty to move the Court "by supplemental bill or otherwise as they may be advised, for a further order in this behalf". It is probably difficult to get a more clear and practical demonstration of the principle that when a Court declares a law to be void for unconstitutionality, it does not repeal the statute, but merely holds it to be ineffective in then premises. These are cases where laws were, in the language of: constitutional writings, struck down. As I have remarked above, I do not think that in the present case, the question is one of avoidance of the law, but rather one of avoidance of an action duly taken according to the terms of the law which was applicable in full force, according to its tenor, at the time when the order was made. Such an action by the Courts is entirely within the power which Courts following the British law have developed in the course of the centuries, for the assertion of judicial review in respect of executive and judicial, as distinct from legislative actions. With respect to such limited application of judicial review, it is noted by Willoughby that it is fundamental to the idea of due process to give notice in advance and an opportunity to be heard to the person affected who may present such pertinent facts and arguments as he may desire in opposition to actions that may adversely affect him or his proprietory interests. But where, because of the urgency of the public need or for practical reasons of administrative efficiency, such prior notice and hearing is not feasible, the Courts of the United States have held that the requirements of due process are satisfied if the like opportunity is later given to the person adversely affected. Instances of this kind are to be found in the laws of Pakistan, in particular those relating to public order and public safety. The provisions of section 144, Criminal Procedure Code furnish an excellent example. The judgment delivered in the High Court of East Pakistan mentions an Indian case, that of Babulal Parate (A I R 1961 S C 884) where the provisions of this section were challenged as being in violation of certain Fundamental Rights, and after full analysis and examination, it was held that the "restrictions" which could be imposed under the section were "reasonable". Stress was laid on the following elements, viz. (1) the restraints were ordinarily to be laid after notice, and it was only in emergency that the order could be made ex parte, (2) though action was based on formation of an opinion yet that opinion is in respect of factual matters, i.e., to prevent obstruction, annoyance, etc. to persons lawfully employed or to prevent danger to human life, health or safety, or disturbance of the public tranquillity or a riot or affray, so that the opinion is not purely subjective, (3) an order under section 144, Cr. P. C. is of a temporary nature, (4) the order must state the material facts by which it is justified, (5) the person affected is entitled to represent against the order, and to be heard in person or by pleader, and if the representation is rejected, reasons must be given, and (6) there is further judicial review available in the form of a revision before the High Court. Other examples relating to unlawful assemblies are furnished by the provisions of sections 127, 128, 130 and 131 of the Criminal Procedure Code. These sections give power to break up assemblies by dispersion and arrest with the object of having the arrested persons treated or punished in accordance with law. Trial furnishes an ample opportunity of judicial review of the grounds upon which immediate restraining action was taken for the avoidance of public danger. Section 145 of the Criminal Procedure Code enables a Magistrate if he is satisfied of the existence of a dispute relating to immovable property which is likely to cause a breach of the peace, and that the case is one of emergency, immediately to attach the subject of dispute and thus interfere with private rights, but only "pending his decision under this section," that is pending the decision to be reached after a due enquiry. The powers of arrest given by sections 60 and 61 of the Criminal Procedure Code are rendered subject to the formation of certain opinions based on certain specified facts, but again, formation of that opinion is rendered subject to judicial review by the requirement of production before a Magistrate. In the Constitution itself, the power of preventive detention is recognised, but is made subject to a time-limit, and also to the requirement that extension shall only be made after reference to an advisory board with the additional requirement that the grounds of the detention shall be communicated to the persons detained and he shall be afforded the earliest opportunity of making a representation against the order. Therefore, there need be no hesitation in holding it to be within the concept of the Constitution as well as of the relevant laws of Pakistan that where grave danger to the public safety or public order is involved, reasonable restrictions upon the freedoms guaranteed by the Constitution are ensured in respect of peremptory executive actions to avert the danger, if opportunity is provided as soon thereafter as may be convenient for exercise by the person affected of the right to represent that the restraint was not justified in relation to the factual requirements of the law applied, or that in other ways the restriction lacked the, elements of reasonableness. In the judgments here under appeal as well as in a number of the judgments which have been cited, the opinion has been expressed that in acting under section 16 the Act of 1908, the Provincial Government exercises a purely subjective judgment. That is a view with which I find it difficult to agree. The judg?ments at the same time indicate that in the view of the learned Judges, it is a duty of the Provincial Government to take into s consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which, the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality, as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited. It is indeed difficult to make any appreciable allowance, for the play of a "personal equation" where the judgment has to be formed as to matters relating to the administration of law, the maintenance of law and order, and prevention of danger to public peace, such as attract the exercise of judgment by a host of Government officials at all levels, as a part of their ordinary day-to-day duties. Should therefore the Courts be asked to shut their eyes to all the facts and circumstances, and to consider themselves bound to hold the action to be within the section merely because the section employs the word "opinion," there would be involved a denial of the judicial function in a field where that function is most directly attracted, namely, the maintenance of liberties of the subjects under a written Constitution, and where, moreover, the judicial mind is both apt and accustomed to travel with the utmost confidence. As I have said in the jurisdictions which follow the British Common Law, the Courts have never felt themselves barred from subjecting executive or judicial actions to judicial review, although in view of the sovereignty of Parliament, they have by gradual 2 process finally accepted a bar against their power to review parliamentary legislation. A recent case before the House of Lords that of Ridge v. Baldwin ((1964) A C 40) furnishes an instance of the exercise of that power. Full opportunity was taken in the judgments delivered to survey the entire law on the subject. I select for citation the following powerful pronouncement in the judgment of Lord Reid: "Nothing short of a decision of this House directly in point would induce me to accept the position that, although an enactment expressly requires an official to have reasonable grounds for his decision, our law is so defective that a subject cannot bring up such a decision for review however seriously may be affected and however obvious it may be that the official acted in breach of his statutory objection." A critic, doubting the applicability of this observation to the present case, would probably pick upon the absence in section 16 of any requirement that the Provincial Government should have "reasonable grounds" for its decision, but it would require no great force of language to brush aside such an objection. As I have pointed out, if the section be construed in a comprehensive manner, the requirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the governmental agency is clearly a pre-requisite to the exercise of the power. In the period of foreign rule, such an argument, i.e., that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated. And of course, if the State have a Constitution obliging that legal restrictions on certain freedoms should be reasonable, the objection can only be raised in defeat and disrespect of the Constitution. But indeed, the absence of express requirement of "reasonable grounds" has never stood in the way of the British Courts interfering to review an executive action. I may usefully cite two cases, for the references to which I am indebted to the judgment of Lord Reid in the case already mentioned. In each case, the power of executive action was given in terms which appeared to allow finality to a subjective opinion. The first case is cited as Ex parte Ramshay ((1852) 18QB 173). A County Court Judge of the Duchy of Lancaster had been removed by order of the Chancellor of that Duchy, under power conferred in the following words : "It shall be lawful ??for the Chancellor of the said Duchy, if he shall think fit, to -remove for inability or misbehaviour any such Judge." This was acted upon and Ramshay was removed, but before doing so, the Chancellor had given notice to Ramshay of grave charges of misbehaviour that had been brought against him. A due enquiry had been made, attended by Rahmshay and his counsel, and evidence had been received though not on oath, for the Chancellor had no power to administer oaths. Ramshay had filed affidavits denying the charges and explaining his conduct, besides imputing motives to those who had preferred the charges. The case being brought up for a writ of quo warranto against Rarnshay's successor in the Judgeship, the Court held as follows: "The Chancellor has authority to remove a Judge only on the implied condition prescribed by the principles of eternal justice, that he hears the party accused." The Court refused to go into the merits of the matter on the ground that the case had been fully enquired into by a procedure consistent with the administration of justice, although it was not a judicial procedure, and held at the same time that Ramshay's affidavits were "insufficient to rebut the presumption that the removal was regular and rightful". The implication of the judgment is plain that if there had been no hearing to Ramshay, the Court would have found it possible to review the case in a more thoroughgoing fashion and the Judges did not hesitate to express an opinion as to the "rightfulness" of the removal, on an estimate of the evidence to show the contrary. The second case of this kind is that of Osgood v. Nelson (L R 1872 AC 636). Here the power was one of removal from an office and could be exercised "for inability, or misbehaviour or for any other cause which may appear reasonable to the Mayor and Council." After very full enquiry the Mayor-in-Council had made the order of removal, and a quo warranto had been sought against the successor in the office. The Court of Appeal had upheld the lawfulness of the removal both as the right to remove and the form of the proceedings, while suggesting a doubt as to sufficiency of cause. The case coming up before the Exchequer Chamber in Error, it was stated by the Court that it had to consider whether a full enquiry had been made, whether a reasonable cause for removal had been assigned, and whether a reasonable cause, had in the judgment of the removing authority been established. It went on to observe that if there had been disregard of any of the essentials of justice, or if in place of reasonable cause, the removing authority "had acted obviously upon mere individual caprice," then the Court would have interfered. The Lord Chancellor in his judgment said that when all conditions applicable to the exercise of power had been satisfied, full evidence had been received from both parties, and the cause assigned seemed to be just and reasonable, then the decision rested with the removing authority and the Court would not interfere. It is to be observed that the Court reserved to itself the final decision as to whether the cause assigned was just and reasonable. Lord Chelmsford in a separate judgment distinguished between "sufficient cause" and "reasonable cause," saying that the order would be upheld if "reasonable cause" were shown, and, on the point of sufficiency of evidence, observed that it was only if there was no evidence whatsoever that the decision could have been reversed. These were cases in which the law was silent as to the proce?dure which the authority was to follow, and no mention was made of the person concerned having any rights in regard to his protec?tion against the threatened action. By approving the procedure of a quasi-judicial trial, which the removing authority had followed, the Court asserted the necessity of a procedure which included a hearing to the person concerned, and full opportunity for production of evidence. The Court also approved the necessity of ascertainment by due enquiry of matters of fact conditional to the exercise of the power of removal, and reserved to itself a power of interference even with the decisions on the merits by the observation made in the first case, that Ramshay's affidavits were insufficient to "rebut the presumption that the removal was regular and rightful", and in the second case, that they would have reversed the decision only if they found that the case was destitute of evidence, for there would have been either : "a miscarriage of justice, or an extraordinary piece of mis?conduct on the part of the tribunal." (per Lord Colensay) These powers are available to all Courts which exercise authority in conformity with British Common Law such as the Courts in Pakistan do in relation to matters which are not expressly governed by statute or other law. It is on the foundation of these principles that propose to deal with the matters arising for decision in this case. A feature of crucial importance, in my view, which these cases present is that the ascertainment of "reasonable restrictions" has become obligatory at a time subsequent to the making of the orders, which were made at a time when the Courts did not possess the power to declare the Act under which the order was made to be avoid for violation of the Fundamental Rights. It seems to me that my duty in asserting the Fundamental Right of free association against any derogation by executive order, must be performed in relation exclusively to those orders, bearing in mind all the circumstances in which that order was made. The law of 1908 was not susceptible to judicial review at that time. This has an important bearing upon the kind of relief which the Court should give. I-lad the power of judicial review in respect of that law been available when the order in question was made, then indeed the Court may have been asked to declare that law to be void, for violation of the Fundamental Right, in respect of the making of the order. Thus, had the order been made on a date following the 10th January 1964, I should have felt it my duty to consider whether or not such declaration should be made. On the subject of "striking down" of laws in general, my inclination is in favour of the view expressed by Willoughby in his book already cited. The learned author has reproduced an observation of a learned Judge in an 1856 case in the New York Supreme Court to the effect that he was: "opposed to the judiciary attempting to set bounds to legisla?tive authority or declaring a statute invalid upon any fanciful theory of higher law or principles of natural right outside the Constitution." That is a valid comment in my opinion, though it may not perhaps be fully applicable in a case like the present. The learned author advocates rigid adherence to the doctrine which the Court: of the United States in principle accept, that "every possible doubt of the validity of a statute is to be resolved in its favour, and a law is only to be held void in case it is impossible for the Court to find evidence sufficient to lead a reasonable person to believe in the reasonableness of the measure." Now, it is not these matters which I find to require consideration in relation to the Act of 1908. I am reluctant to attempt examination of the question whether that law has violated the relevant Fundamental Right for a totally different reason, which is that for the purpose of determining whether the action taken under the law is in derogation of the Fundamental Right of free association, it is not necessary for me to go to the length of testing the validity of the law itself. Moreover, I am conscious that sitting as a Judge and dealing with a question involving validity of a law, I must confine myself to the particular case before me. It is not and cannot be required of me in a proceeding like the present to give an opinion whether the law of 1908 became void for conflict with the Fundamental Right of free association on the 10th January 1964, as a proposition in vacuo, irrespective of the particular matter in relation to which the question has been raised. In confining myself to that question, I apprehend that what I am asked to say is whether the orders made on the 6th January 1964, are not violative of the Fundamental Right of fret association possessed as from the 10th January 1964, by the persons who are adversely affected by those orders. It is not possible, of course, to declare the law of 1908 to have been rendered invalid by the Constitutional amendment of the 10th January 1964, with effect from any earlier date, e.g., the 6th January 1964. Therefore, on the view that judicial review of legislation is, not called for, within the four corners of the case, I propose to confine myself to considering the question whether the orders of the 6th January 1964, can at all be regarded as "reasonable restrictions" upon the otherwise absolute right of freedom of association possessed by the persons upon whom those orders act as a restraint. As I have indicated already, for the full apprecia?tion of this question, it is not necessary to refer to or rely upon the doctrine of "due process" as it has been developed in the United States. The necessary power of judicial review is available within the compass of the British Common Law, to the extent that it is in force in Pakistan, that is to the extent that the matter is not governed by the statute. Finding no restraint by statute, since there is no clear bar provided by the Act of 1908 against an order under section 16 being called in question before a Court, I am clearly of the opinion that it is within the power of the Courts of Pakistan, relying on the principles declared and the practice" followed by the British Courts for well over a century, to subject an executive order, which is in derogation of a private right deriving from the Constitution, to judicial review. Precedents clearly establish that even had the order been made after giving an opportunity for hearing and for production of evidence, the power aforesaid includes authority to review the procedure followed, in order to make sure that it conformed to the minimum requirements of justice, and even to review the decision on the merits for two limited purposes, namely, to ascertain whether the decision was based on any evidence at all, and whether the evidence could be found to establish at least a reasonable cause as contradistinguished from a sufficient cause. Where the facts appearing from the evidence establish that no procedure of notice or enquiry was followed at all, the duty of review would, in my opinion, fall even more heavily upon the Courts, for otherwise they would be overlooking a clear case of deprivation of private constitutional right at what might well be the mere will of a person. But at the same time, the judicial duty in a case of this kind is to give due consideration and weight to the possibility that the action of the Government, being expressed to be taken in the interest of safeguarding the administration of law, maintenance of law and order, and the public peace may have been supported by some evidence, and by "reasonable cause". The nature of the action clearly exhibits a feeling on the part of each Provincial Government that in the discharge of his duty to safeguard the public interest, it should act immediately. The Court would be acting in disregard of these visible circumstances, if it were to act so a, to set aside the orders and require the Provincial Government to undertake an enquiry before making the order afresh. There may well be dangers to the public interests indicated above of which the Court has not been made fully aware. Moreover, such an order might carry the taint of usurping legislative power, that is the power of prescribing procedure to apply to the making of an order of the kind here in question. And as has been said already, the laws of Pakistan as well as the Constitution contemplate the possibility of the requirement of "reasonable restrictions" being& satisfied by the grant of an opportunity for a hearing and fort production of evidence, even after the making of peremptory' orders of restraint. Therefore, in my view the most appropriate mode of judicial review in these cases would be, for the Court, while not interfering ad interim with the orders, itself to conduct a hearing ex post facto and to receive evidenced and thereafter to proceed to consideration of the question whether the restriction imposed is a reasonable one. The Court would not go to the length of requiring any prescribed quantity or quality of evidence in support of the order. It would apply the rule which has received approval in the British Courts that such an order would be supported, if the cause shown were "reasonable" even though in the view of the Court itself it may not be "sufficient", and again it would confine its interference to a case which was destitute of evidence. That such a proceeding is within the competence of the Courts exercising the power of judicial review is, in my opinion, made plain by the action taken in a case of apprehended violation of a Constitutional right by the Supreme Court of the United States in the case of Chicago Milwaukee & St. Paul Railway Corporation v. Minnesota, cited above, where not merely an executive order, but a legislative measure was directed to b subjected to full-scale judicial review. For these reasons, which to me seem to be of compelling force, the order that would make in the present appeals is one allowing both appeals, and without interfering with the orders, p requiring each of the High Courts to subject those orders to judicial p review in the manner and on the principles indicated above. Consistently with that order, I would direct that the costs would be costs of the cause in each case. S. A. RAHMAN, J.?Two petitions were moved on behalf of the Jamaat-i-Islami of Pakistan, under Article 98 of the Constitution?one in the West Pakistan High Court at Lahore and the other in the High Court at Dacca?calling in question notifications issued by the two Provincial Governments on the 6th of January 1964, extending the Criminal Law Amendment Act, 1908 (Act XIV of 1908), as amended by Ordinance XXI of 1960, to the two Provinces, declaring the Jamaat-i-Islami to be an "unlawful association" under section 16 of that Act and further notifying certain places, under section 17-A of the said Act, as those which were being used for the purposes of the Jamaat. The petition filed in the High Court at Lahore was dismissed but that Presented to the High Court at Dacca succeeded and it was declared that the notifications issued under sections 16 and 17-A of the Criminal Law Amendment Act, 1908, had no longer any binding effect and the Provincial Government was directed to rescind, cancel or withdraw them. Both Courts certified the cases to be fit for appeals to this Court. The decision of the Dacca High Court has been challenged on behalf of the Province of East Pakistan by Appeal No. 19-D of 1964, while the West Pakistan High Court decision has been appealed against on behalf of Saiyyid Abul A'la Maudoodi and others, in Criminal Appeal No. 43 of 1964. As common questions of law and fact are involved in both the appeals, they will be disposed of together by this judgment. The main points urged on behalf of the Jamaat-i-Islami in the two High Courts, in support of their contention that the action taken was illegal, were that Act XIV of 1908 had lost its validity owing to its repugnancy to the Political Parties Act III of 1962, that doe notice of the publication of the notification under section 1(2) of Act XIV of 1908 not having been given, the notifications that followed it, under sections 16 and 17-A of the Act, were bad in law, that the Provincial Governments had merely acted at the behest of the Central Government and the action taken therefore was colourable, that Act XIV of 1908 was inconsistent with Fundamental Right No. 7 included in Chapter 1 of the Constitution and was therefore void and that the action taken was also vitiated owing to failure to observe the principles of natural justice in so far as no notice of the proposed action was given to the Jamaat-i-Islami and no opportunity was afforded to them of putting their point of view before the authorities concerned. In the Dacca High Court the case was disposed of by a Bench of three Judges who were unanimous in their decision. It was held that the doctrine of implied repeal could not be success-fully invoked to invalidate the Act of 1908 which was not repugnant to or inconsistent with the provisions of the Political Parties Act, 1962, that it was incorrect to suggest that the Political Parties Act, 1962, covered the whole field in respect of activities of a political party, that there were no materials to support the contention that the impugned notifications, though ostensibly issued under the authority of the Provincial Government, were really the act of the Central Government and that the orders impugned did not attract the maxim "audi alteram partem" as they were of an administrative or ministerial character and h-therefore the absence of a notice or opportunity of represen?tation did not invalidate the notifications. It was, however, ruled that the notification issued under section 17-A of the Act of 1908, was illegal as it was published simultaneously with the one under section 16 of that Act. The finding was also recorded that the Act of 1908 was violative of Fundamental Right No. 7 guaranteed by the Constitution and as such had become void and unenforceable. It was found that the notifications issued under that Act though legal at the time when they were published, could not be effective after the promulgation of the fundamental rights, as the action taken could not be described as a transaction past and closed prior to their promulgation. The case in the High Court at Lahore was heard by a Full Bench of five Judges. The main judgment was delivered by the learned Chief justice in which two of the other Judges concurred completely. The remaining two Judges while agreeing that the petition be dismissed, appended separate notes. In the main judgment, the conclusions arrived at were that Act XIV of 1908 and specifically section 16 thereof, was not inconsistent with Act III of 1962, that the action taken by the Provincial Government was not invalidated by the fact that notifications under sections 1(2) and 16 of the 1908 Act were published simultaneously though one after the other, in the Gazette dated the 6th of January 1964, that the action taken by the Provincial Government could not be described as mala fide and that the simultaneous publication of notifications in the two Provincial Capitals was not enough to support that contention, that the fundamental rights guaranteed by the Constitution could not he given retrospective effect, that the notifications could not be challenged as they represented a transaction past and closed before the fundamental right relied upon, was enforced, that the action taken by the Provincial Government was merely adminis?trative in character designed to meet an emergency and that therefore the question of hearing the Jamaat before passing the impugned order did not arise. Inamullah, J., in his separate note recorded his agreement with the conclusions in the main judgment and further went on to say that the maxim "audi alteram partem" could not be invoked in the circumstances of the present case. According to the learned Judge, the principle of natural justice would apply only in the case of an administrative body which had to determine facts in an objective manner and to act judicially. As under section 16 of Act XIV of 1908 the determination of the question involved was purely subjective in character, the Provincial Government was not required to act judicially. Wahiduddin Ahmad, J., agreed with the other learned Judges that there was no real conflict between Act XIV of 1908 and Act III of 1962 and that the impugned notification could not be challenged as illegal on the mere ground that sufficient time had not elapsed between the publication of the notification extending the 1908 Act to the Province and the issue of the notification declaring the Jamaat-i-Islami to be an unlawful association. He, however, differed from the other learned Judges in holding that the action taken could not be sustained in law as it contravened the principles of natural justice, the Jamaat having been condemned unheard and that from the 10th of January 1964, at least, when the Constitution was amended to incorporate fundamental rights therein, Act XIV of 1908 became void as it was in conflict with Fundamental Right No. 7 guaranteed by the Constitution, in so far as it did not impose reasonable restrictions in the interest of morality or public order, on that right. He was further of the opinion that the impugned notifications were not protected merely because they were issued before the fundamental rights were enforced as they did not represent a transaction past and closed. In spite of these findings, however, the learned Judge doubted the propriety of quashing the impugned notifications and issuing an order requiring them to be cancelled under Article 98 of the Constitution. He observed that it was open to the Court to decline to exercise a jurisdiction under that Article, if the order to be issued was likely to become ineffective on the taking of certain remedial steps. The learned Judge thought that it was still possible for the Government to amend the Criminal Law Amendment Act XIV of 1908 in such a manner as to bring it into conformity with the fundamental right affected. He therefore agreed that the petition be dis?missed. It may be pointed out, with respect, that if such a view were to prevail, then in no case could an existing statute, which was inconsistent with the exercise of any fundamental right guaranteed by the Constitution, ever be successfully challenged. It would have the effect of turning Article 98 of the Constitution into a dead letter so far as matters of this nature are concerned. This could not have been obviously the intention of the Legislature which inserted the fundamental rights in the Constitution. Before taking up the consideration of the contentions raised by the parties in these appeals, it would be useful to clear the grounds by referring to the position of political parties under the law in this country. The proclamation dated the 7th October 1958, made by the President of Pakistan and published in the Gazette of Pakistan dated the 31st of October 1958 declared, inter alia, the abolition of all political parties. It was further announced that until alternative arrangements were made, Pakistan would come under Martial Law, the Commander-in-Chief, Pakistan Army, being made the Chief Martial Law Administrator. Martial Law Regulations were framed from time to time. By Notification No. 1197/58 dated the 4th of December 1958, published in the Gazette (Extraordinary) dated the 5th December 1958, inter alia Martial Law Regulation No. 55 was promulgated by the Chief Martial Law Administrator, which forbade any person from organising, convening or attending any meeting or procession of a political nature on pain of receiving a maximum punishment of seven years' rigorous imprisonment. This position was modified by Martial Law Regulation No. 55-A published under Notification No. 1256/59 dated the 1st December 1959, in the Gazette (Extraordinary) of the 5th December 1959. This reads as follows:-‑ "55-A. No person shall organize, convene or attend any meeting or procession of a political nature: Provided that, subject to restrictions imposed by any Regulation, law or rule for the time being in force, any meeting in connection with the election to Basic Democracies may be organized or convened by or on behalf of a candidate within the area of the Local Council, as defined by the Basic Democracies Order, 1959, to which he is seeking election and may be attended by any person." On the 9th of May 1962, Ordinance XVIII of 1962 was promul?gated by the President. This was called the Political Organiza?tions (Prohibition of Unregulated Activity) Ordinance, 1962. Section 2 of this Ordinance provided that unless expressly permitted by an Act of the Central Legislature, no association of persons shall set up an organisational structure or collect funds or otherwise hold, acquire or own property, if the object of the association was to propagate political opinions or otherwise to indulge in political activity. Nor was an association of persons, whether with or without an organisational structure, permitted to call itself by any of the names mentioned in the Schedule or by names which were obvious and identifiable variations of those names. The Schedule included the name of the Jamaat-i-Islami party. Section 4 of the Ordinance enacted that a person contravening the provisions of section 2 of the Ordinance would be punishable with imprisonment of either description which may extend to one year or with fine or with both. Section 6 of the Ordinance declared that its provisions would be in addition to and not in derogation of any other law relating to political parties. Then came the present Constitution of 1962. The Presidential Proclamation of the 7th of October 1958, was revoked by Article 225 of the Constitution with effect from the commencing day, that is, from 8-6-62. All Martial Law Regulations and Orders except for certain excepted enactments, were also repealed from the same date and Martial Law Regulations 55 and 55-A do not figure among these exceptions. Consequently, the ban on political parties imposed by the Presidential Proclamation of the 7th October 1958, and the Martial Law Regulations disappeared, but Article 173 of the Constitution itself placed a curb on political activity in the following terms: "

173. Except as permitted by Act of the Central Legislature, any person who, in connection with an election required to be held under this Constitution, holds out himself or any other person as being a member of, or as having the support of, a political party or any similar organisation shall be punishable in such manner as may be prescribed by Act of the Central Legislature, but provision shall be made by law for ensuring (a) that each candidate at an election has the opportunity, and so far as is practicable, equal opportunity with other candidates, of addressing the persons who arc entitled to vote at the election; and (b) that the persons entitled to vote at the election have the opportunity of questioning each candidate, face to face." It will be noticed that this Article barred the candidates at an election from being sponsored by a political party but there was nothing to prevent the formation of political parties as such, in this provision. This was followed by the Political Parties Act, 1962 (Act Ill of 1962) which received the assent of the President on the 15th of July 1962, and came into force on that date. Sections 3 and 4 of this enactment are important and are set out in cxtenso below (they are not affected by amendment of the Act by the Political Parties (Amendment) Ordinance I of 1963): "

3. Formation of certain political parties prohibited.--(1) No political party shall be formed with the object of pro?pagating any opinion, or acting in a manner, prejudicial to the Islamic Ideology, or the integrity or security of Pakistan. (2) No person shall form, organise, set up or convene a foreign aided party or in any way be associated with any such party.

4. Lawful political activities.?Subject to the provisions of section 3, it shall be lawful (1) for any body of individuals or association of persons to form, organise or set up a political party; (2) for any person to be a member or office-bearer of, or be otherwise associated with, a political party; or (3) for any person, for the purpose of an election to be held under the Constitution, to hold himself out or any other person as a member, or to have the support, of a political party, the formation, organisation or setting up of which is not prohibited by this Act." Section 5 disqualifies a person from being a member or office-bearer of a political party in certain contingencies. Section 6 of the Ordinance is again important and may be reproduced in full: "

6. Reference to Supreme Court regarding certain parties.?(1) Where the Central Government is of the opinion that any political party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court, and the decision of the Supreme Court on such question, given after hearing the person or persons concerned, shall be final. (2) Where the Supreme Court, upon a reference under sub-section (I) has given a decision that a political party has been formed or is operating in contravention of section 3, the decision shall be published in the official Gazette, and upon such publication, the political party concerned shall stand dissolved and all its properties and funds shall be forfeited to the Central Government." Section 7 of the Act provides for the imposition of penalties on persons who, if disqualified, become members or office-bearers of a political party, in contravention of section 5 or who, after the dissolution of a political party, hold themselves out as members or office-bearers of such a party or act for or otherwise associate themselves with that party. The last section, section 10 of the Act repeals the Political Organisations (Prohibition of Unregulated Activity) Ordinance, 1962 (XVIII of 1962). The preamble to the Act refers to Article 173 of the Constitution and also to Article 131, clause (2) of the Constitu?tion and mentions that the enactment of the measure by the Central Legislature was undertaken in the interest of achievement of uniformity within all the Provinces of Pakistan, and that it was thought expedient to provide for the formation of political parties and to permit persons to hold themselves out at elections as members of such parties. At this stage, a brief survey of the provisions of the Criminal Law Amendment Act XIV of 1908 would be appropriate. The Act was amended from time to time. The Act is entitled as "an Act to provide for the more speedy trial of certain offences and for the prohibition of associations dangerous to the public peace." By subsection (2) of section 1, as amended by Ordinance XXI of 1960, the Act was extended to East Bengal but could at any time, by notification in the official Gazette, be extended to any other part of Pakistan by the Provincial Government concerned. Section 15 of the Act defined an "association" as meaning "any combination or body of persons, whether the same be known by any distinctive name or not", and an "unlawful association" as meaning "an association (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the Provincial Government under the powers conferred by the Act." Section 16 is in the following terms: "

16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful." Section 17 (1) provides for the punishment of a person who is a member of an unlawful association or otherwise participates in the activities of such association or contributes to or helps in receiving or soliciting contributions for the purposes of any such association. The punishment may extend to six months or fine or both. A person who manages or assists in the management of an unlawful association or promotes or assists in the meeting of any such association or of any member thereof, is made punishable with imprisonment which may extend to three years or with fine or with both under subsection (2) of section

17. The Provincial Government is authorised by section 17-A of the Act by notification in the official Gazette, to notify any place which, in its opinion, is used for the purpose of an unlawful association. On the issue of such a notification, the District Magistrate or an officer authorised in this behalf in writing by him, may take possession of the notified place and evict therefrom any person found therein. A report of this action is to be submitted to the Provincial Government. The notified place whose possession is thus taken over, would remain in the possession of Government so long as the notification under subsection (1) of section 17-A continues in force, section 17-B enacts that the District Magistrate or the officer authorized by him, shall also take possession of all movable property found in the notified place, and if in the opinion of the District Magistrate, any articles thus found are or may be used for the purpose of the unlawful association, he may proceed to order their forfeiture to the State, the rest of the articles being delivered to the person considered entitled to the possession thereof or being disposed of, in the alternative, in such manner as he might direct. A notice of the proposed forfeiture is to be published, as nearly as may be, in the manner provided in section 87 of the Code of Criminal Procedure, 1898, for representations to be made against the forfeiture, in writing, by persons claiming the articles in question, within a period of 15 days. In case a representation is rejected, a reference to the District Judge for final decision is provided for. If the goods are of a perishable nature or livestock, the District Magistrate could, if he thinks expedient, order their immediate sale and the procedure mentioned above; would then apply to the disposal of the sale-proceeds. Section 17-C makes it clear that a person who enters or remains upon a notified place without the permission of the District Magistrate or an officer authorized by him in this behalf, shall be deemed to commit criminal trespass. Section 17-D imposes an obligation on the Provincial Government to give such general or special directions as it may deem requisite, regulating the relinquishment by Government of possession of notified places before a notification under subsection (1) of section 17-A is cancelled. Section 17-E gives powers to the Provincial Government, after such inquiry as it may think fit, by order in writing, to declare any monies, securities or credits, which are being used or are intended to be used for the purposes of an unlawful association; to be forfeited to the State. Before an order of forfeiture is made, however, the Provincial Government is required to give written notice to the person, if any, in whose custody the monies, securities or credits are found, and any person aggrieved thereby, may, within 15 days from the issue of such a notice, file an application to the District Judge, to establish that the monies, securities etc., are not liable to forfeiture. Apparently, however, the declared nature of the association would be conclusive in these proceedings. There are other provisions in this section enabling the Provincial Government to order a search of any premises for securing the custody of any monies, securities or credits, which are being used or are intended to be used for the purposes of an unlawful association, and a person having custody of them may also be prohibited from transferring them to any other person, pending finalization of the procedure of forfeiture. Section 17-F declares, inter olio, that save as provided in sections 17-B and 17-E no proceeding purporting to be taken under sections 17-A, 17-B, 17-C, 17-D or 17-E shall be called in question by any Court, and protects any persons or Government for anything, in good faith, done or intended to be done under the said sections, against civil or criminal proceedings. Section 18 provides that an association shall not be deemed to have ceased to exist by reason only of an informal act of dissolution or change of title but shall be deemed to continue so long as any actual com?bination for the purposes of such association continues between any members thereof. The Central Government as well as the two Provincial Governments are interested in the outcome of this case. Mr. Manzur Qadir has appeared before us for the Central Government while the two Provincial Governments are repre?sented by their respective Advocates-General. The Jamaat-i-Islami is represented by Mr. A. K. Brohi. The principal argument on behalf of the Government was submitted to the Court by Mr. Manzur Qadir and the learned Advocates-General of the Provinces adopted the arguments urged by him. Mr. Brohi put forward before us the point of view of the Jamaat-i-Islami party. The first contention raised by Mr. Brohi is that Act 111 of 1962 contains the whole law on the subject of dissolution of political parties and therefore displaces Act XIV of 1908 from this field. The Central Legislature, he argues, was com?petent to enact the 1962 Act under the authority of Article 173 of the Constitution and also under Article 131 (2) (c) which permits the Central Legislature to make laws for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule, in the interests of achievement of uniformity in respect of any matter, in different parts of Pakistan. Clause (1) A of Article 131 declares that the Central Legislature shall have exclusive power to make laws for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule. The subject of formation of political parties or their dissolution does not figure in that Schedule. By virtue of Article 132 of the Constitution, therefore, this subject would normally fall within the legislative competence of the Provincial Legislatures. This is, however, subject to the second clause of Article 131, whereby the Central Legislature is empowered to entrench on the field reserved for the Provincial Legislature, in the interest of uniformity of legislation for the whole country. The argument presented therefore is that as the Central Legislature has entered on this field legitimately, in accordance with the provisions of the Constitution, it should follow that to the extent that the Central Law covers the residuary field, it cannot be over-ridden by a law enacted by any Provincial Legislature. This argument seems to assume that the Act of 1908 is a Provincial Act. This is, by no means, the case. That Act when passed, was a part of Central legislation, though its application to a Province, other than Bengal, was left to be regulated by a notification by a Provincial Government. This power to extend legislation to a particular territory conferred on the Provincial Government, does not take away from the fact that the law itself was enacted by the Central Legislature. No question therefore o a conflict between a Central enactment and a Provincial statute arises. It is, however, elaborated, that in any event, the Act of 19624 by necessary implication, repeals the Act of 1908 in so far as the provisions of the one are repugnant to those of the other. The doctrine of implied repeal is not generally favoured and an earlier enactment will not be held to have been repealed by subsequent legislation unless the two are so inconsistent that they cannot stand together. Mr. Brohi attempted to argue that section 4 of the 1962 Act, granted a charter of action to the citizens of Pakistan to form political parties, subject only to the provisions of section 3 of that Act. In other words, if a political party is formed without the party's objects falling within the mischief of section 3 (1) of the Act and without its being a foreign-aided party, then no action is possible against it, such as could paralyse its activities or in any way interfere with them, except in accordance with the procedure laid down in section 6 of the Act. It would not be open to the Provincial Governments, according to learned counsel, to declare a political party an L "unlawful association" under section 16 of the 1908 Act. The argument is further fortified by the contention that the 1908 Act is a general Act whereas the 1962 Act is a special Act applying to political parties which may also fall within the genre of "association" as defined by the earlier Act. On these considerations, the argument is pressed that a political party is no longer governed by any of the provisions of the 1908 Act. It is contended that unless this position is accepted as correct, the anomalous result would be that under the 1962 Act, a political party can be dissolved, even if its objects are calculated to gravely prejudice the security of the country, only after adjudication of those objects by the highest tribunal in the country, but that under the Act of 1908, it would be possible virtually kill a political party, under the guise of declaring it "unlawful" by mere executive fait of the Provincial Government, based on their subjective satisfaction as to the existence of certain facts. Mr. Manzur Qadir for the Central Government was prepared to concede that to the extent that the question of dissolution of a political party for contravention of the provisions of section 3 of the 1962 Act arises, the provisions of that Act are exclusive and' action would be possible under that Act alone or not at all. He contends, nevertheless, that the 1908 and 1962 Acts cover different fields and therefore no question of implied repeal of the former arises. He points out that there would be no justification for reading the word "only" into section 4 of the 1962 Act and indeed the indications in that Act are to the contrary. For instance, section 5 of the Act also clearly governs section 4, so far as the disqualification of an individual for being a member of a political party is concerned. It would, therefore, be incorrect to postulate that the provisions of subsection (4) of that Act are controlled only by section 3 thereof. This, therefore, leaves the question open as to whether other existing laws to the extent that they may be consistent with Act III of 1962, are still effective or not. Both the High Courts have answered that question in the sense that the other laws bearing on Associations or political parties, have not been abrogated to the extent that there is no actual conflict between them and the provisions of Act III of 1962. There is a good deal of force in the submission made by Mr. Manzur Qadir that the grounds of action under the two Acts are not necessarily coincident in every case. Under section 16 of Act XIV of 1908 an association can be declared unlawful, only if in the opinion of the Provincial Government, it interferes or has for its object interference with the administration of the law or with the maintenance of law and order or that it constitutes'--a danger to the public peace. Under Act III of 1962, action can only be taken against a political party (which, of course, is also an "association") if it is formed with any of the objects mentioned in subsection (1) of section 3 or it falls within the defini?tion of a "foreign-aided party". Secondly, the result of action under the two Acts, from the strictly legal aspect, may not be the same, though on the practical plane, all activities of the association or political party may be effectually ended in either case. It is argued with some plausibility that the declaration of an associa?tion as "unlawful", under the older Act, would not necessarily destroy its collective personality but that action under the later Act, would effect dissolution of the party and it would therefore cease to exist in law. As soon as the notification under section 16 of the 1908 Act is withdrawn or cancelled, the association would be revived but after action under the 1962 Act, it would, in any event, have to be re-formed. As will be noticed later on, this dis?tinction appears to be one of form rather than of substance and may not therefore be entitled to much weight. However, the argu?ment that the older Act is aimed at the activities of an unlawful association bearing on law and order whereas the later Act prevents formation of or dissolves existing parties with the illegal antecedents mentioned in section 3 thereof, appears to be a valid distinction. In some cases, it is true that the activities of a political party which endanger the integrity or security of Pakistan, may also involve a law and order problem such as would fall within the purview of Act XIV of 1908, but these two aspects need not co-exist. It is easy to conceive of a case where a political party may adopt as one of its activities, a violent attitude towards a minority or a class or section of people in the country. This type of activity may not endanger the security or integrity of Pakistan, but might cause a breach of the peace. Thus, a political party with lawful objectives and not being a foreign-aided party may, in its actual functioning, resort to methods that are calculated to subvert peace and order in the country, without impinging on the question of security or integrity of Pakistan. In such a case, it is argued, merely because it is a political party, it cannot be allowed to commit breaches of the peace with impunity. Action, it is admitted, may be taken against individuals guilty of breaches of the peace under other laws but it is urged that if the old Act is still efficacious, there is no reason why its machinery should not be brought into play for curbing the collective character of such a body. Again, it is possible to conceive of a political party resorting to a movement, say, for peaceful picketing against recruitment to the Pakistan Army. Their action may not involve a breach of the peace, but it would certainly be calculated to endanger the security of Pakistan. It is therefore an ostensibly plausible plea that, generally speaking, the fields of application of the two Acts are not identical. Even in those cases where the activities of a political party may endanged public peace as well as the security or integrity of Pakistan, it is maintained, action may be possible against the party, under either Act with reference to its special provisions and the analogy of an act, being punishable under more than one statute, is referred to in support of this position. It is also pointed out that Act III of 1962, had, by its last section, repealed Ordinance XVIII of 1962 but had not expressly referred to the repeal of Act X1V of 1908. Very strong reasons, it is said, should exist to justify spelling out of the provisions of Act III of 1962, an intention of the Legislature to repeal Act XIV of 1908. These are all undoubtedly weighty considerations. It is indeed hard to accept the thesis that the 1962 Act exhausts the law on the subject of political parties and their regulation. Such a view would unnecessarily deprive the Pro?vincial Legislatures of their constitutional legislative right in this regard. But a serious question arises whether to the extent that the 1962 Act contemplates dissolution of a political party for very grave conduct affecting the security of the State only after a judicial verdict by the highest Court, there is not a clear implica?tion involved that for lesser faults the party could not be guillotined in summary fashion, under the 1908 Act. I am inclined to the' opinion that such might indeed be the true intention of the Legislature that enacted the, subsequent Act and to that extent in consequence, the provisions of Act XIV of 1908 may no longer be available to the Executive Government. There is to my mind very little difference between declaring a party "unlawful" and ordering its dissolution for in either event it cannot function at all. It must be kept in mind that a political party need not be a body corporate. The most important question that falls for determination in this case is whether Act XIV of 1908 is in conflict with the exercise of Fundamental Right No. 7 guaranteed by the Constitution. The fundamental rights were promulgated by an amendment of the Constitution by means of Act No. I of 1964, called the Constitution (First Amendment) Act, 1963. For Chapter 1 of the Constitution, a new Chapter was substituted and Article 6 thereof declared that "any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void". The State was forbidden from making in future also, any law which takes away or abridges the rights so conferred and any law made in contravention of clause (2) of Article 6 would to the extent of such contravention, he void. There are certain excep?tions provided in clause (3) of Article 6 which are not material for our purpose. The seventh fundamental right is expressed in the following words:‑ "

7. Freedom of association.?Every citizen shall have the right to form associations or unions, subject to any reasonable res?trictions imposed by law in the interest of morality or public order." The point that arises for consideration is whether Act XIV of 1908 imposes reasonable restrictions on the right to form an association, possessed by every citizen, in the interest of morality or public order. This right is obviously a justiciable right and the question whether restrictions imposed by a particular statute on the fundamental right in question are reasonable in their character or not, is clearly amenable to judicial determination. The restrictions envisaged by the 1908 Act are relatable to morality or public order and the question resolves itself into an inquiry into the reasonableness or otherwise of those restrictions. The vires of the 1908 Act are attacked on the ground that it confers unguided discretion on the Provincial Government to declare an association as unlawful, on an opinion formed subjectively with regard to objective facts and which opinion would not be open to judicial review. Secondly, it is urged that this involves condemning an association unheard. There is no provision in that Act for hearing the persons concerned either before or even after the declaration of an association as unlawful, so that at no stage the point of view of the persons affected could be presented to the relevant authorities. Thirdly, there is no provision for appeal from the order of the Provincial Government, whether of an executive or judicial kind. Fourthly, it is urged that the notification once issued is to last indefinitely. These aspects of Act XIV of 1908, it is contended, are enough to condemn it as imposing unreasonable restrictions on the fundamental right of citizens to form an association. The argument is sought to be fortified by a reference to certain decisions from the Indian juris?diction in parallel cases. The first case cited is The State of Madras v. V. G. Row (A I R 1952 S C 196) In that case, the Supreme Court of India had to consider the vires of the Criminal Law Amendment Act, 1908, as amended in Madras, by Madras Act XI of 1950. Action had been taken under the 1908 Act, against the People's Education Society, Madras, by declaring it as an unlawful association. The notifica?tion was challenged as illegal before the High Court at Madras, who held that the order purporting to be issued under the 1908 Act, infringed the fundamental right conferred on the citizens of India, by Article 19 (1) (c) of its Constitution, which permitted formation of associations or unions, as of right subject to reasonable restrictions. The allegation against the association on behalf of the Government was that though its declared objects on paper were lawful, the society was actively helping the Com?munist Party in Madras, which had been declared unlawful, in August 1949, by utilizing its funds through its Secretary, for carrying on propaganda on behalf of the party. It was suggested that the declared objects of the society were intended to camou?flage its real activities. It appears that the Madras Amendment Act No. XI of 1950 was passed while the petition for a writ was pending in the High Court and the question therefore fell to be decided in the light of the amendments introduced by that Act as they had been given retrospective effect. The amending Act introduced some liberalising features into the old Act. The words relating to opinion of the Provincial Government were eliminated from clause (b) of section 15 (2). Section 16 now required specifica?tion of grounds and material particulars in the notification and provided for a reasonable period for making representations against the action taken. Under section 16-A inserted in the old Act, the Government was bound after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board constituted by it, a copy of the notification and of the representations, if any, received before such expiry, and the Board was required to consider the materials placed before it, after calling for such further information as it may deem necessary, from the State Government or from any office-bearer or member of the association concerned or any other person, and to submit its report to the Government. If the Board found that there was no sufficient cause for the issue of the notification in respect of the association concerned, the Government was to be under obligation to cancel the notification. It was noted by the learned Judges that there was no amendment of section 17 of the Act which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meetings of such association, etc. Section 17-A of the Act, which conferred power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of sub-clauses 2 (a) and 2 (b), providing for a remedy, where such power was exercised, by way of application within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the notified place was situated in the Presidency Town or outside, for a declaration that the place had not been used for the purpose of any unlawful association. If such a declaration was made, the Government was to cancel that notification in respect of the association. In spite of the liberalising provisions of the amending Act, the High Court at Madras and the Supreme Court of India had no difficulty in condemning the 1908 Act as violative of the fundamental right guaranteed by Article 19 of the Indian Constitution in respect of formation of association. The learned Judges in the Supreme Court of India remarked that if the grounds referred to in section 15 (2) (b), as amended, could be made a subject of inquiry in a Court of law, the restrictions sought to be imposed on the right of association would not be open to exception. But it was found in the face of the provisions of section 15 (2) (b), that the omission of the reference to opinion of the Government, made no difference to the import of the relevant enactment and the matter still rested within the subjective satisfaction of the Government. The Supreme Court of India referred to its own previous decision in Dr. N. B. Khare v. State of Delhi ((1950) S C R 519) and re-affirmed its view that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness. it was observed that the Court should consider not only factors such as the duration and the extent of the restrictions but also the circumstances under which and the manner in which their imposition had been authorized, having regard to all the circum?stances of a particular case. The learned Judges found that a summary and what was bound to be a largely one-sided review, by an Advisory Board, even where its verdict was binding on the executive Government, could not be a substitute for a judicial inquiry. According to them, the formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in, to review the materials on which the Government sought to over-ride a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits and could not receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. The learned Judges drew a distinction between the case before them and that of preventive detention which had formed the subject of decision in the case of A. K. Gopalan v. State of Madras (1950SCR88), on the ground that the Constitution itself sanctioned laws providing for preventive detention as to which no question of reasonableness could arise in view of the language of Article 22 of the Indian Constitution. Dr. Khare's case was also distinguished on its facts and circum?stances. In that case the subjective satisfaction of the Govern?ment regarding the necessity for the externment of a person coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority of the Indian Supreme Court Judges, to be reasonable procedure for restricting the right to move freely, conferred by Article 19 (1) (b) of the Indian Constitution. The learned Judges pointed out that externment of individuals, like preventive detention, was largely precautionary and based on suspicion and involved an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity. These features were foreign to action authorized under section 15 (2) (b) of the 1908 Act, to declare associations unlawful. The grounds of action taken by themselves, they observed, are factual and not antricipatory or based on suspicion. It was also remarked that the impugned Act suffered from a very serious defect in the absence of any provision for adequate communication of the Government's notification under section 15 (2) (b) to the association and its members or office-bearers. Publication in the official Gazette whose publicity value was held to be by no means great, was found to be not enough, as the time fixed in the notification could expire before the members of the association could have knowledge of such a declaration and therefore their right of making a representa?tion would be lost. In George Chadayammury v. State (1) "a Full Bench of the Travancore-Cochin Court struck down the provisions of the Cochin Criminal Law Amendment Act, XXVII of 1124 in almost similar circumstances as prevailed in the above-cited case. The principle that both the substantive as well as the pro?cedural provisions have to be regarded in such cases, is one which seems to have been endorsed time and again by the Indian Courts. Our attention has been drawn to Express Newspapers (Private) Ltd. v. The Union of India (2) which reviews the previous case-law on the point and adheres to the formulation of the test given above. This principle also found acceptance in three decisions of the West Pakistan High Court reported as Bazal Ahmad v. The West Pakistan Province (3); Rao Mahroz Akhlar v. The District Magistrate, Dera Glrazi Khan (4) and The Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi (5). Mr. Manzur Qadir pressed on our consideration the reason?ing of Shah, J. in Jeshingbhai Ishwarlal v. Emperor (6). The majority of the Judges in that case adopted the criterion that in order that a restriction on a Fundamental Right be described as reasonable, its substantive as well as procedural aspects must receive consideration. Shah, J. in a minority judgment, however, expressed the opinion that if the Court is satisfied that the restriction is imposed in the interest of the general public and is not itself unreasonable, the Court has no jurisdiction to enquire whether the manner in which the restriction is likely to be imposed by the officer charged with the duty of enforcing it, may possibly act unreasonably. The learned Judge therefore apparently considered that the procedural aspect of an impugned legislation was of no importance. With respect, it may be observed that although per se restrictions imposed by a statute on a fundamental right may sound reasonable, yet the method of imposition of the restrictions may be so arbitrary that their reasonableness may become illusory. Mr. Manzur Qadir suggested that the minority view of Shah, J. in this case, had been followed, though without departing from the previously accepted criterion, in so many words, in some subsequent cases. Those cases are, however, easily distinguishable on the ground that they related to circumstances of emergency action, in which questions of due notice or due process would be relegated to the level of subsidiary considerations of little importance. These instances are provided by Hari Khemu Gawali v. Deputy Commissioner of Police (7), Bapurai v. State (8) and Virendra v. The State of Punjab (9). Even in these cases, the principle does not seem to have been doubted that the procedural aspect of an impugned Act was as important as the substantive aspect. The nature of the emergencies under consideration in these particular cases, nevertheless, impelled the learned Judges to uphold the action of the executive authorities in the special circumstances. (1) A I R 1952 Trav. Coh. 217 ?? (2) A I R 1958 S C 578 (3) P L D 1957 Lah. 388???????? ??????????? (4) P L D 1957 Lah. 676 (5) P L D 1958 Lah. 887?????? ??????????? (6) A I R 1950 Bom. 363 (7) A I R 1956 S C 559???????? ??????????? (8) A I R 1956 Bom. 300 (9) A I R 1957 S C 896 I agree with Mr. Manzur Qadir that the phrase "due process" as used in the American decisions is of wider import than the same term as understood in English Law or in our own country. This was expressly pointed out by this Court in Jibendra Kishore Acharyya v. The Province of East Pakistan (P L D 1957 S C (Pak.) 9)?and Messrs East and West Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41). But there was nothing said in these two cases which could cast doubt on the proposition that the machinery provisions for enforcing restrictions on a fundamental right, attacked as unreasonable, are equally important with the nature and extent of the restrictions themselves. The words "imposed by law" occurring in Fundamental Right No. 7 seem to be consistent with the view that the procedure by which the restrictions are imposed, may also be a legitimate point for consideration when the question of reasonableness is adjudicated upon. After considering the matter in all its aspects I have reached the conclusion that the impugned Act of 1908 imposes restrictions on the exercise of the fundamental right of forming associations, which cannot be described as reasonable. In this context, a strong contrast is presented by the provisions of Act III of 1962. Even where a political party is created such as would endanger the security or integrity of Pakistan, the Legislature in its wisdom has thought it fit to provide in this Act that no action should be taken unless the highest tribunal in the country has first delivered its verdict on the questions raised. Judged in the, light of this criterion, the 1908 Act confers a naked arbitrary power on a Provincial Government to put an end to all activities of a political party and thus to virtually kill it, on an ex parte and one-sided view of its activities. This unguided discretion is subject to no check, judicial or otherwise, and has the poten?tialities of becoming an engine of suppression and oppression of an opposition political party, at the hands of an unscrupulous party in power. That such a party may succeed in assuming power at sometime, cannot be regarded as an impossibility. In a democratic set-up such as is visualized by our present Consti?tution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today may be the Government of tomorrow. To place an instrument in the hands of the party in power by which they can effectually eliminate from the political scene any opposition, without let or hindrance, cannot be held to be consistent with healthy func?tioning of the body-politic on democratic lines. Under the Constitution, the executive powers in the Provinces, vest in the Governors who are not popular representatives and who hold office at the President's pleasure and are subject to his directions. The Head of the State himself is not supposed to be above politics in so far as he is also the head of a political party. Articles 66, 80 and 118 of the Constitution may be referred to in this connection. The Ministers in the Centre or the Provinces are also creatures of the President or the Governor as the case may be and hold office during the pleasure of the appointing authority. In each particular case, the nature of the right affected and the character of the restrictions in question, the mischief sought to be suppressed and the circumstances in which the restrictions are sought to be imposed, would be the determining factors. It is in the light of these facts that the implications of the power granted by the 1908 Act to the Government of the day, have to be assessed. I am, therefore, firmly of the opinion that the provisions of Act XIV of 1908 violative as they are, of the exercise of the fundamental right of forming associations, must be condemned as imposing unreasonable restrictions on that right. The Act must consequently be declared to be void to the extent of its inconsistency with Fundamental Right No.

7. It is obvious that before the fundamental rights came on the scene, the validity of the Act of 1908 could not be impugned. The provisions of the Constitution are prospective in character and not retrospective. The impugned notification under the 1908 Act was issued at a time when fundamental rights did not exist. At that time therefore the notification was perfectly legal. The question however is whether it continues to be effective in spite of the fact that the statute from which it derived its validity has itself become "void" on account of its inconsistency with a fundamental right guaranteed by the Consti?tution. The meaning of the word "void" in this context was apparently the subject of considerable argument in the two High Courts. This Court had occasion to consider the impli?cations of this word in the Province of East Pakistan v. Md. Mehdi Ali Khan (PLD 1959 S C 387). It was made clear in that decision that when it is said that a particular existing law has become "void" owing to its conflict with a fundamental right, it does not mean that it was ab initio void or that it was effaced from the statute book. It only means that such a law becomes unenforceable so long as a conflict with a fundamental right exists and if the fundamental right for some reasons or the other disappears, the law would become operative again. It is really a state of hibernation rather than one of death. The point therefore that calls for consideration is whether the notification impugned in this case can be regarded as a transaction past and closed and not affected by the finding that the parent Act from which it drew its strength has become void on the ground of its repugnancy to a fundamental right. The High Court of East Pakistan held that this was not a case of a transaction past and closed but a majority of the Judges of the High Court of West Pakistan came to the contrary conclusion. Wahiduddin Ahmad, J., of the West Pakistan High Court, however, expressed a view similar to that of the Dacca High Court in this respect. It seems to me that the notification in question, would even now stand in the way of formation of a political party in exercise of Fundamental Right No. 7 guaranteed by the Constitution. Its effect is continuing from day to day and consequently it must be declared to be void along with the Act which was its source of power because of its inconsistency with the future exercise of Fundamental Right No.

7. Some cases from the Indian jurisdiction were cited before us which provide instances of past transactions continuing in force and of transactions past and closed. In the former category fall the cases reported as Shanti Sarup v. Union of India (1); Lachmandas Kewalram v. State of Bombay (2); Shoakat-un-nissa Begum v. State of Hyderabad (3) and Jeshinghbhai Ishwarlal v. Emperor (4). In the second class of cases in which past action is beyond recall, is included the case of D. K. Nabhirajiah v. State of Mysore (5). In my humble judgment, the notification, unless declared void, would still stand in the way of a citizen who might try to exercise his fundamental right by joining the Jamaat-i-Islami or to take part in any of its activities, in the political sphere, by virtue of the provisions of sections 17, 17-A to 17-E of Act XIV of 1908. The effect of the notification was not exhausted before the promulgation of the fundamental rights. I would hold therefore that the impugned notification stands condemned along with the Act of 1908, and cannot be allowed to negate the fundamental right of formation of an association solemnly assured by the Constitution. A suggestion was thrown on behalf of Government that when a law is declared void on account of its conflict with a constitutional provision, it should entail consequences similar to those of repeal of a statute. I am not at all persuaded that this is so or that Article 250 of the Constitution is attracted to such a situation. That Article expressly deals with the effects of a repeal but leaves the case of a law declared void under the Con?stitution, untouched. It would therefore not be correct to regard the offending Act to be still available for giving effect to liabi?lities incurred under the Act before the promulgation of the fundamental rights. The word "void" clearly implies that its provisions have become totally unenforceable to the extent of its repugnancy to the Constitution. On behalf of the Jamaat-i-Islami the argument was also advanced that the want of a notice and opportunity of hearing afforded to Jamaat-i-Islami before it was condemned as unlawful, was repugnant to the principles of natural justice and even on that score therefore, the action taken could not be sustained in law. This Court has held in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (6); Messrs Paridsons Ltd., Karachi v. Government of Pakistan (7) and Province of East Pakistan v. Nur Ahmad (8), that the principle of natural justice requiring a hearing to be granted to a person before being condemned, applies not only to judicial or quasi-judicial proceedings but also to administrative proceedings provided that the relevant statute does not exclude its application and requires the administrative authority concerned to base its decision on an objective deter?mination of facts. The present case seems to me to fall within the category of these three decided cases and as no opportunity was afforded to the Jamaat-i-Islami either before the impugned notification or even after that event, to displace the adverse opinion formed by the Government against it, the action taken could not be upheld as lawful. The principle of natural justice has received clear re-affirmation in England, in a recent judgment of the House of Lords reported as Ridge v. Baldwin (1). There is nothing in the provisions of the 1908 Act which excludes its application. (1)AIR1955SC 624?????????? (2) A I R 1952 S C 235 (3) A I R 1950 Hyd. 20??????????? (4) A I R 1950 Bom. 363 (5) A I R 1952 SC 339??????????? (6)PL D 1959 SC 45 (7) P L D 1961 S C 537????????? (8) P L D 1964 S C 451 (1) (1963) All Elk 66 It was sought to be argued by Mr. Manzur Qadir that the action taken under the 1908 Act was in the nature of an order to meet an emergency and therefore the very character of the case excluded a notice or an opportunity of hearing. I am not inclined to accede to this contention as correct. The law and order problem, if created by the Jamaat-i-Islami, could have been dealt with under the other laws of the realm, notably the Code of Criminal Procedure or the Security Acts. The mere declara?tion of an association determined to create disorder in the country as unlawful, would not suffice to ensure peace and order in the country. Their activities in the field would have to be sup-pressed by prompt arrests or detentions, etc. under other laws possibly, to attain that objective. If for much graver offences, the collective aspects of a political party could not be interfered with under Act III of 1962, except after adjudication by this Court, it does not appear at all necessary or reasonable to postu?late, that disturbance of law and order, which is on a lower level and which could be dealt with effectively under other laws, requires dispensation with the rules of natural justice, before a political party's activities are completely paralysed by action under the 1908 Act. It would be cold comfort indeed for the political party concerned to be told that though declared "unlaw?ful", its collective personality is not dissolved and therefore as soon as the notification is withdrawn, it can re-start functioning without the necessity of re-formation. So long as the notifica?tion is in force, the members of the association cannot function at all under its auspices. The position is analogous to that of civil death as compared to physical death under the 1962 Act and perhaps civil death may be much more painful than a physical one. One is reminded of the myth of Tantalus who was tortured by an ingenious contrivance that allowed water to rise to his lips but which did not permit him even to wet them before it went down, as he was incapable of the slightest movement. Theoretically, there may be a difference between such a situation and that of physical death but on the practical plane such a distinction would be illusory. Mr. Manzur Qadir's suggestion that there was nothing to prevent the Jamaat-i-Islami to make a representation to the Government against the action taken under Act XIV of 1908, suffers from the infirmity that such a representation would not be based on a right and could be rejected summarily by the Government, on that basis. The juxta-position of the notifications applying the impugned Act to the Province and declaring the Jamaat an unlawful association, in the same Gazette, is not enough to invalidate the second notification which in fact followed the first, in it publication. There also appears to be no sound objection to the validity of the notification issued in East Pakistan under section 16 of the 1908 Act by which the Jamaat-i-Islami was declared unlawful and simultaneously places were notified under section 17-A of the Act. If a notification under the latter section could legitimately follow the first under the Act, the two could a well be combined in one notification. Grievance was sought to be made out on behalf of the Jamaat that action was started against members of the Jamaat and the places in their occupation on the morning of the 6th January 1964, even before the time of publication of the relevant notifica?tions in the Gazette. This may have been irregular action but no prayer was made in this regard in the petition under. Article 98 of the Constitution, in the High Court. The relief clause in the petition merely referred to the validity of the noti?fications and the safeguarding of future activities of the Jamaat. In the circumstances this point does not call for attention in the present appeals. The allegation of mala fides against the Provincial Govern?ments does not appear to have much substance in it either. The mere fact that there may have been consultation between the Provincial and the Central Governments as suggested by simultane?ous action against the party in the two Provinces, would not be' sufficient to support such an allegation. The scheme of the present' Constitution does not bar such mutual consultations or even directions from the Centre. There is, however, some justification for the complaint that the allegations made against the Jamaat, in the Government Press Note as well as in affidavits filed on behalf of the two Governments in the High Courts fell more appropriately within the purview of the 1962 Act as it was apparently part of the case against the Jamaat that it had never reconciled, itself to the existence of Pakistan and that its activi?ties were calculated to imperil the security of the State. However, it was at the same time said that it had been responsible for student activities leading to breaches of the peace and so the point need not be laboured any further. After considering the matter from all angles, I find myself in agreement with the final conclusion reached by the Dacca High Court and to differ from that of the West Pakistan High Court: I would, therefore, allow Appeal No. 43 of 1964, set aside the order of the West Pakistan High Court and issue the direction prayed for and dismiss Appeal No. 19-D of 1964. The parties should be left to bear their own costs, in the circumstances of the case. FAZLE-AKBAR, J.?I am of the same opinion upon all of the points which have been dealt with by my learned brother Hamoodur Rahman, J. However, in view of the importance of the questions raised in these appeals, I would like to make some observations of my own. The main question raised in these cases relate to the applic?ability of the provisions of the Criminal Law Amendment Act, 1908, to a political party which was formed after promulgation of the Political Parties Act, 1962. The first objection is that the Act of 1962, occupies the whole field in regard to the political parties and the Act of 1908, has no application to them. The question, therefore, is: Does the Political Parties Act of 1962, exclude application of the Criminal Law Amendment Act of 1908, to the political parties? It was suggested that such political parties could be dissolved only in the manner provided in section 6 of the Political Parties Act and therefore, the Government acted beyond its powers in declaring the political party in question unlawful under the pro-visions of the Criminal Law Amendment Act of 1908. At the very outset it may be pointed out that the purposes of these two Acts are totally different. It is plain from the provisions of the Act of 1908, that it was intended to empower the Government to prevent interference by any association "with the administration of the law or with the maintenance of law and order". Now the political parties which had been banned previously were brought into existence by the Act of 1962. In the background of events which took place prior to the promulgation of this Act it is clear that the purpose of formation of such political parties was that they may form an opposition to the Government by legal means and within Constitutional limits. Indeed the very foundation of a Constitu?tional Government is healthy opposition. Progress of a country depends to a certain extent by the opposition of the new to the old, and in so far as it is within the law, such opposition is recognised a symbol of independent thought containing the promise of progress. The political parties were really permitted to operate as a means of political evolution and not of revolution. Thus these two Acts which were intended to operate on different fields could co-exist in their respective sphere of actions. Hence no question of competition arises between them. Furthermore there is no such provision in the Political Parties Act from which it could be inferred that the political parties were granted exemption from the operation of the Criminal Law Amendment Act, 1908. Political Parties Act merely recognises political parties. There-fore, formation of a political party cannot be regarded to mean that the other laws dealing with the conduct of citizens and association generally were to be subject to the exception in favour of persons belonging to a political party. I think there is no foundation whatsoever, for the contention that the political parties had an absolute right to be dealt with only under the Political Parties Act. In my opinion by no stretch of imagina?tion the anarchistic action of a political party can claim immu?nity from the general law of the land. In these circumstances no question of repeal of the former Act by the latter by implica?tion arises in this case. It is, however, true that there is some overlapping between the provisions of the two Acts. Section 6 (2) of the Act of 1962, provides for dissolution of the political parties under certain circumstances whereas section 16 of the Criminal Law Amendment Act empowers the Government to declare an association `unlawful'. Further various penal consequences follow such declaration. By declaring an association unlawful the Government really puts an end to the existence of such an association. Thus in effect section 16 aims complete suppression an. termination of an association which interferes with law and order. It may therefore, be said that these two sections to some extent, operate in the same field independently, namely, that both the sections give power to wipe out an association. Now they are exercised concurrently the result may be destruction of a political party though it may be properly functioning under the Political Parties Act. In other words the Provincial Government in exercise of its power under Criminal Law Amendment Ac would be in a position to defeat the latter Act of 1962. To this extent it may be said that the provisions of section 16 of Criminal Law Amendment Act will be inconsistent with the Political Parties Act and they, therefore, cannot stand together. This view also finds support from the following observation in Clyde Engineering Company Limited v. Cowburn (37CLR466at p.478). "Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than imposing duties: they may for instance, confer rights, and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived of abandoned without disobeying the statute which con?ferred it." In view of this inconsistency the provision of section 16 of the Criminal Law Amendment Act must yield to the special statute namely, the Political Parties Act, because they cannot be reconciled and stand together. To this extent of inconsistency the provisions of section 16 of the Criminal Law Amendment Ac must be deemed to be repealed by implication. The next question is: What would be the effect of the invalidity of section 16? It has been rightly pointed out by Sulaiman, J. in Shyama Kanta Lal v. Rambhajan Singh and others (AIR1939FC74) that "It is well established principle that if the invalid part of an Act is really separate in its operation from the other parts and the rest are not inseverably connected with it, the only such part is invalid, unless, of course, the whole object of the Act would be frustrated by the partial exclusion." The learned Judge then says: `A particular section of an Act however not be an isolated and independent clause, and form part of one connected indissoluble scheme for the attainment of a definite object; in which case it would have to be considered as an insepar?able part of the whole. A law which is ultra vires in part only may thereby become ultra vires in whole if the object of the Act cannot at all be obtained by excluding the bad part. If, the offending provisions are so inter-woven. into the scheme of the Act that they are not severable, the whole Act is invalid.' I think the last portion of the above observation is fully applicable to the present case because the whole texture of the Act is inextricably interwoven and `the object of the Act of 1908 cannot be attained by excluding the bad part'. I would, therefore, hold that the notification issued under pro-visions of the Criminal Law Amendment Act declaring the Jamaat-i-Islami unlawful was bad in law. It will be convenient at this stage to deal with the question whether there was a colourable exercise of power under the Criminal Law Amendment Act. Reasons given in the notifica?tion for declaring the Jamaat-i-Islami unlawful were as follows: The association known as the Jamaat-i-Islami was vehemently opposed to the creation of Pakistan and continued to oppose its existence by unlawful means and with that object was indulging in subversive activities against the State such as (i) inciting students to indulge in unlawful activities and committing acts of violence; (ii) fomenting trouble between the workmen and the employ?ers; and (iii) attempting to create feelings of disloyalty and dissatis?faction among Government servants. No doubt weight must be given to the fact that this party had been banned not by a minor official but by the Government after due deliberation and therefore it will be difficult to challenge the bona fide of the Government. However, in view of the allegations contained in the Press Note which was issued on the very next day of the notification, one may legitimately ask whether it would not have been more appropriate to take action under the Political Parties Act of 1962. The fact, however, remains that the Government possessing the powers which are exercised for protection of security is clothed with authority to determine the occasion on which the power is called for and also to decide under which law it will exercise that power. It was then vehemently argued that the impugned notifi?cation was issued in violation of the principles of natural justice. It is true that one of the principles of natural justice is that no person shall be deprived of his right without an opportunity to be heard. In this connection I may quote the following passage from Maxwell, 6th Edition, page 638: "In giving judicial powers to affect prejudicially the right of person or property a statute is understood as silently imply?ing, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise the person sought to be prejudicially affected shall have an opportunity of defending himself." This rule expressed in the maxim audi alteram partem was fully considered by this Court in Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another (P L D 1961 S C 537) and there-fore, needs no elaboration. In a variety situation the Court has enforced this doctrine by checking attempts of executive to disregard this deep-rooted demand of fair play. No doubt as far as possible it must be respected in period of calm and even in times of trouble. But certainly it cannot be said that it is merely a technical conception with a fixed content unrelated to time place and circumstance. It is really a matter of procedure and its application must depend on the particular facts and circumstances of the case. What is unfair in one situation may be fair in another. Furthermore, there may be conceivable circumstances in time of emergency in which it might be necessary for the Authorities to take immediate action, for example the activities of an association may be subversive to Government and a serious menace to the country. In such circumstances it will be unrealistic to impeach the action of the Government on the ground that the association was not heard. It must be remembered that sometimes because of abnormal conditions, abnormal means are required to cope with them and this justifies the authorities to take immediate action under the law enabling them to do so. Hence taking action in an emer?gency without observing the maxim audi alteram partem would be a valid exercise of plenary administrative discretion. In other words in such exceptional cases the safeguard of fair hearing can be relaxed. It is against this background of guiding considera?tion 1 must view the action of the Government. Section 16 says "If the Provincial Government is of opinion that any asso?ciation interferes or has for its object interference with the administration of law . . . may, by notification in the official Gazette, declare such association to be unlawful." Thus the Government possessing the powers which are to be exercised for protection and security is clothed with authority to determine the occasion on which the power shall be called forth. Therefore, this Court cannot question the subjective satisfaction of the Government. For the above reasons the attack on the ground of absence of notice and fair hearing must fail. Now I come to the last contention, namely, whether after conferment of the Fundamental Rights the notification which was issued under the provisions of Criminal Law Amendment Act of 1908 has become void. Fundamental right of freedom of Association was incor?porated into the Constitution by the Constitution (First Amend?ment) Act of 1963 which received the consent of the President on 10th January 1964. The impugned notification was issued on 6th January 1964. Hence the first question is if the action which had commenced before the conferment of Fundamental Right could be challenged. The answer to this question will depend on the nature of the action which had been taken previous to the amendment of the Constitution. There is no dispute that acts done and completed before the conferment of fundamental right could not be questioned on the ground of violation of fundamental right. In order to ascertain the nature of the action taken under the Criminal Law Amendment Act of 1908 it will he necessary to look into the provisions of that Act. Section 16 empowers the Provincial Government to issue a notification in the Gazette declaring an association unlawful if in its opinion the said association constitutes a danger to the public peace. A number of consequences follow such a decla?ration. The Government could take possession of the places which were used for the purposes of unlawful association and such possession would continue so long as the notification remained in force (S. 17-A); could forfeit any article which was used for the purpose of the unlawful association (S. 17-B); and could forfeit funds of the unlawful association (S. 17-E). Further section 18 provides that such unlawful association shall be deemed to continue so long as any actual combination for the purpose of such association continues between any members thereof'. This brief analysis of the contents of the Act is sufficient to indicate that the operation of the order continued even after 10th January 1964, that is, after conferment of fundamental right and as such the political party in question can seek redress for violation of its fundamental right. 7th Fundamental Right provides : "Every citizen shall have the right to form associations or unions subject to reasonable restrictions imposed by law in the interest of public order." Mr. Manzur Qadir attempted to overcome this difficulty by contending that the Act of 1908 may be regarded as a reason-able restriction on the freedom of association in the interests of public order. He has adopted as an argument the observations of Shah, J. in his dissenting judgment in Jeshingbhai Iswarlal v. Emperor (AIR 1950 Bom. 363) that `what the Court has to consider is whether, when the Legislature provides for restrictions on the exercise of the fundamental rights, the restrictions are reasonable having regard to the interests of the general public'. In other words if the restriction per se is reasonable the Court is not entitled to look to anything more. He has also referred to some other decisions of the High Courts in India to show divergence of opinion on this point. On this question the decision of the Supreme Court of India may be noticed in the case of State of Madras v. V. G. Row (AIR 1952 SC 196). The Court while dealing with the constitutionality of the Criminal Law Amendment Act, 1908 as amended in Madras by Madras Act XI of 1950 laid down the following test of reason-able restriction: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." This dictum has been consistently adopted by that Court in several subsequent cases. See State of West Bengal v. Subodh Gopal Bose (1), Virendra v. K. Narendra (2) and Express News Paper Limited and others v. Union of India and others (3). (1) AIR 1954 S C 92 ??????????? (2) AIR 1957 S C 896 (3) AI R 1958 S C 578 I shall only add that the above is not exhaustive and the Court while testing reasonableness may also consider the precise nature of the interest that has been adversely affected, the reasons for doing it, the manner in which it has been done, the procedure that was followed, the balance of hurt complained of and the good accomplished. These are some of the considera?tions that must enter the judicial judgment. Applying them to the present case I find it difficult to hold that the restrictions laid down in the impugned Act can be regarded as reasonable. As the regular criminal laws with their safeguards designed to produce a fair trial were considered inadequate to deal with the anarchist and anti-social movements, this Act was passed in 1908 to meet the threat of subversion. An order under this Act which is purely of an executive character is not open to objective judicial test. It condemns without trial. There is also no express provision for judicial review. Further no period for the duration of the order is laid down in the Act. Lastly, the associations against whom the order is made have no right to be heard in their defence. Nor is there any obligation on the p authority to hear the association against whom the other is p made. It does not contain even limited substituted proce?dural safeguards which have been given to one hold in preventive detention. The provisions of the Criminal Law Amendment Act of 1908 being penal in nature cannot possibly be regarded as reasonable restriction on fundamental right. It in effect destroys the right of an association for an indefinite period without hearing or trial merely on the subjective satisfaction of the Executive. Indeed such a law can on no construction of the word `reasonable' be described as coming within that expression. Having given the matter my best and anxious consideration I have come to the conclusion that the Criminal Law Amendment Act of 1908 falls outside the scope of authorised restriction in the 7th Fundamental Right. For the reasons stated above I would allow the appeal of Saiyyid Abul Ala Maudoodi and others, set aside the judgment of the High Court of West Pakistan and direct the Government of West Pakistan to cancel the notification dated 6th of January 1964 whereby Jamaat-i-Islami was declared to be an unlawful association and its offices were sealed. The appeal of the Government of East Pakistan should however, be dismissed. In both these appeals I would make no order as to costs. B. Z. KAIKAUS, J.?The first point urged by Mr. Brohi is that the Criminal Law Amendment Act in so far as it affects political parties is superseded by the Political Parties Act, 1962, in view of Article 134 of the Constitution which provides that in case of an inconsistency between a Provincial and a Central law the latter should prevail, the contention being that the Criminal Law Amendment Act which has come into operation by a notification of the Provincial Government is a Provincial Law. The alternative contention, in case the Criminal Law Amendment Act, 1908 is not found to be a Provincial law, is that there is an inconsistency between the two Acts and the later Act should prevail. The first contention is not of any force because the Criminal Law Amendment Act, 1908, cannot by any stretch of language be said to be a Provincial Law. It was passed by the Central Legislature in 1908. It was to come into force in a particular Province only on a notification to that effect by the Provincial Government and has been applied to West Pakistan by such a notification. But that hardly makes it a Provincial law. In Article 242 of the Constitution, Provincial law has been defined as a law made by and under the authority of the Provincial Legis?lature and includes a law made by the Governor of a Province. The Provincial Legislature referred to is the Legislature created by and functioning under the present Constitution. "Central Law" according to Article 242 means a law made by and under the authority of the Central Legislature and includes a law made by the President. The argument that a law does not become a Provincial law just because there has to be a noti?fication by the Provincial Government before it comes into force is sufficient to dispose of the contention of Mr. Brohi but the correct position is that the Criminal Law Amendment Act is neither a Provincial law nor a Central law for the terms "Pro?vincial Legislature" and "Central Legislature" refer to Legislatures created by and functioning under the present Constitution. It is only an "existing law" which comes into force by virtue of Article 225 of the Constitution. The fact, however, that Article 134 of the Constitution is inapplicable is not of any great consequence for if there be an in-consistency between the Political Parties Act and the Criminal Law Amendment Act the later is to prevail on the doctrine of implied repeal. The question for consideration is whether there is in fact an inconsistency between the Criminal Law Amendment Act in so far as it applies to political parties and the Political Parties Act. The contention of Mr. Brohi is that the intention of the Political Parties Act was to deal with the whole question of the functioning of political parties and to grant a charter to political parties for free functioning in case they comply with the provisions of the Political Parties Act. The contention of Mr. Manzur Qadir on the other hand is that the Political Parties Act is of limited application and covers only the field of legal existence of political parties so that it does not in any way affect laws which prohibit the functioning of the parties without absolutely destroying them. It is necessary in order to assess the force of the opposite contentions to consider the history of the law relating to political parties in Pakistan and also the relevant provisions of the two enactments which are said to be inconsistent. There was no s particular law in Pakistan relating to political parties before S the President's Proclamation of 7th October 1958, by which the Constitution of 1956 was abrogated and Martial Law was applied. By this notification political parties were abolished. There was, however, no law providing for a penalty in case a political party was formed or continued. Martial Law Regu?lation 55 made any activity connected with a meeting or a procession of a political nature an offence. Later, Regulation 55-A introduced a proviso in Regulation 55 in order to protect some activities in connection with Basic Democracies. On the 10th of May 1962, was promulgated the Political Organisations (Prohibition of Unregulated Activity) Ordinance, 1962, which pro?hibited all political activities except to the extent expressly permit?ted by an Act of Central Legislature. The need for promulgating this Ordinance arose because the present Constitution whose provisions were known many months before it came into force was going to revoke the Proclamation of 7th October 1958, which abolished political parties and to repeal Regulation 55 which prohibited political activities to the extent stated above. Ordinances promulgated before the Constitution came into force were however to continue after the Constitution as "existing laws". The preamble to this Ordinance stated that the intention was to prevent organisations for political purposes coming into being till the National Assembly of Pakistan had time "to examine the whole question of political parties after a full and public discussion". The Constitution itself when it came into force on the 8th of June 1962, contained a provision prohibiting some political activity in connection with elections held under the Constitution. This provision is Article 173 of the Constitution which runs: "