P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑

Fifty‑one writ petitions bearing Nos. 184, 185, 194, 197, 202, 207, 211, 212, 213, 215, 216, 217, 219, 220, 221, 222, 224, 225, 233, 234, 235. 236, 237, 238, 239, 240, 241. 243, 244, 245, 249, 257, 260, 261, 262, 263. 266, 267, 268. 269, 270, 271, 272, 274, 282, 283, 284, 287. 290, 302‑ and '310 of 1957 'were filed in this Court to challenge the validity of the latest elections to the District Board, Lyallpur, on various grounds. Arguments were partly heard in those petitions when subsequently writ petition No. 711 of 1957 was presented in this Court on behalf of Mst. Zohra Parveen and six others, seeking similar relief. In that petition, inter alia, a consti tutional point was raised which went to the root of the controversy involved in all these petitions. That point had not been taken in the previous petitions. As a decision on that point, if arrived at in favour of the petitioners, would have been enough to dispose of all the writ petitions, we heard arguments on that point with the reservation that, if necessary, the parties would also be heard on other aspects of the dispute between the parties. We have reached the conclusion that writ petition No 711 of 7957 should succeed on the consti tutional point with the result that a direction ought to issue as prayed for, to the Province of West Pakistan and the other officers impleaded in these petitions, restraining them from giving effect to the results of the elections recently held for the District Board of Lyallpur, we proceed to give our reasons for this conclusion. In order to appreciate the nature of the constitutional issue raised, it is necessary to set out the legal background of the District Board elections. Section 11 of the District Boards Act, 1883 (hereinafter referred to as the Act), prescribes that a district board or a local board shall consist of such number of members, not less than six, as the Provincial Government may fix in this behalf: The members may be appointed by the Provincial Government either by name or by official designation, or may be elected ill accordance with the rules made by the Provincial Government under the Act, or some may be appointed and some elected, as the Provincial Government directs. The proviso to subsec tion (2) of that section declares that when the Provincial Government has directed that all or any proportion of the members shall be elected, it shall not thereafter direct that they shall be appointed, unless a majority of the electors declare that they so desire. It is only after a sufficient number of members is not elected that the Provincial Government may fill those places by appointment, by virtue of the authority conferred by subsection (3) of that section. Section 55 of the Act empowers the Provincial Govern ment, consistently with the provisions of the Act, to make rules by notification, inter alia, for determining the mode and time of appointment or election of members of boards, the term of office, allowances, if any, and the qualifications and disqualifications of such members, and the qualifications and disqualifications of voters, and generally for regulating all elections under the Act. The rules may also prescribe the authority by which questions relating to these matters shall be determined. In exercise of the powers conferred by section 55 of the Act, the ex‑Punjab Government promulgated the District Board Election Rules, 1933. Rule 6 of those Rules, gave the right of vote to every male British subject, or natural born subject of an Indian State, provided that he had attained the age of 21 years on the first day of the month in which the roll was published under the provisions of the Rules and satisfied the other conditions mentioned in that rule. These rules were, however, superseded by the District Board Election Rules, 1952, made by the Punjab Government vide notification No. 11010‑B&C‑51/1550, dated the 3rd of March 1952, published in the gazette of the 28th March 1952. For the first time, in these Rules, the right of vote was given to every adult person who had reached the age of 21 years, irrespective of sex, provided that he or she was a citizen of Pakistan or the ruler or the subject of a federated State and was not otherwise disqualified under this rule. Rule 7 specified the disqualifi cations for, membership of a District Board and this rule also made no discrimination between men and women. Rule 8 bears oil the preparation of preliminary rolls for the elections. It contemplates the preparation of a roll for each constituency to be prepared in form I and to be published on the prescribed date, together with a notice inviting claims and objections relating either to the inclusion of names in or to the exclusion of names from the electoral roll and fixing a period during which such claims and objections may be presented to the specified authority. Sub‑rule (4) of this rule provides that notwithstanding the provisions of other rules on the subject, the Provincial Government may direct that for any or all constituencies, the electoral rolls for the constituencies con cerned for the elections to the Legislative Assembly, shall be deemed to be the preliminary rolls for the purposes of this rule. Advantage was taken of this sub‑rule by the Provincial Government and a direction was given accordingly for the rolls prepared in contemplation of the Legislative Assembly elections, to be treated as preliminary rolls for the purpose of election to the District Board, Lyallpur. By notification No. 7147‑B&C‑55/46170, dated the 4th of August 1955, and published in an extraordinary issue of the Punjab Gazette dated the 5th August 1955, the District Board Electoral Rules, 1955, were promulgated. Rules 2 to 6 of these rules are rele vant for our purpose and may be reproduced in extenso:

"

2. For the purposes of election to the District Board, Lyallpur, the electorate .in the District Board area shall be divided into three classes, that is to say :‑ (a) Class I ... ... Muslims (Men). (6) Class II ... ... Women (Muslims and Minorities). (c) Class III ... ... Minorities (Men). "

3. For Class I of the electorate, there shall be eighty‑two representatives. For Class II of the electorate, there shall be three repre sentatives. For Class III of the electorate, there shall be two ‑ repre sentatives. "

4. For Class I of the electorate, one member shall be elected to; each electoral circle as specified in Schedule 'A' by the registered electors of that circle. "

5. For Class II of the electorate, one member shall be elected by each electoral circle as specified in schedule 'B' by the registered electors of that circle. "

6. For Class III of the electorate, one member shall be elected for each electoral circle as specified in schedule 'C' by the registered electors of that circle." Then follow schedules 'A', 'B' and 'C' in these Rules, schedule 'A' gives the particulars of eighty‑two constituencies, each of which is comprised of several revenue estates situate in one Tehsil or the other of the district of Lyallpur. Schedule 'B' gives specifications of three constituencies, the first of which includes the entire District Board area of the tehsil of Lyallpur, the second the entire District Board area of the tehsil of Toba Tek Singh and the third the entire District Board area of the Tehsils of Jaranwala and Samundari. Schedule 'C' contains two constituencies, the first being comprised of the total District Board area of the tehsils of Toba Tek Singh and Samundari and the second the entire District Board area of the tehsils of Lyallpur and Jaranwala. Though these rules do not in so many words specify this fact, 'yet it is common ground between the parties that in practice these rules are interpreted to mean that for men's constituencies only men are entitled to be registered as voters and for women's constituencies the voters can only be women. It is contended on behalf of the petitioners that this arrange ment of constituencies infringes the fundamental rights of women qualified to be voters or to stand for membership of the District Board, Lyallpur, embodied in Article 5 of our Constitution. The rule is impugned as making an arbitrary and unjust discrimination against women as compared with men, for the purpose of these elections. The equality clause embodied in Article 5 of the Constitu tion has been the subject of 'interpretation by the Supreme Court of Pakistan in two recent decisions as Jabendra Kishore etc. v. Province of East Pakistan (PLD1957SC(Pak.)9) and Zain Noorani v. Secretary of the National Assembly of Pakistan (PLD1957SC(Pak.)46). At page 22 of the first case, the learned Chief Justice of Pakistan pointed out that the expression "equality before the law" appears to have been first used by Dicey, the English constitu tional writer, as one of the three aspects of his doctrine of the Rule of Law. As propounded by him, the theory of equality before the law means that no man is above the law, but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdic tion of the ordinary tribunals. In other words, every official is under the same responsibility for every act done without legal justification as any other citizen, and if he commits a tort, he is liable for it in the ordinary Civil Courts. The other phrase "equal protection of law" occurring in Article 5 of our Constitution appears to be based on the corresponding expres sion "equal protection of the law" occurring in the Fourteenth Amendment to the United States Constitution. After discussing the relevant American Law on the subject, the learned Chief Justice made the following observations at page 38 of the published report in the first case :‑ "Whatever else the expression 'equal protection of law may mean, it certainly does not mean equality of operation of legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negros equal rights to the enjoy ment of life, liberty and property. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to give an all‑inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more fre quently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privi leges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in, no way repugnant to the equality doctrine provided the classi fication is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act, it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differ ences in race, colour or religion, will certainly be rejected by the Courts." These observations were endorsed by the Supreme Court per Shahabuddin, J. in Zain Noorani's case. In that case, further reference was made with approval to the following opinion expressed by Willis on Constitutional Law, at page 579 of the 1.936 edition of that book:‑-- "If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." The point raised in the present case, therefore, has to be decided in the light of the law as thus authoritatively inter preted by the Supreme Court. Rational classification being permissible under Article 5 of the Constitution, the first question that arises for deter mination is whether a classification based on sex comes within the mischief of this Article or not. Such a classification has been upheld as reasonable in the context of special protection required by women while employed in certain trades or professions. Reference in this connection may be made to an American case as Muller v. State of Oregon (208US412). It was recognised by the Supreme Court of the United States in that case that according to the law of Oregon, women, whether married or single, had equal contractual and personal rights with men. It was pointed out that the policy, as disclosed by all recent legislation upon the subject in the State, was to place a woman upon the same footing as if she were a fame sole, not only with respect to her separate property, but also in respect of her right to make binding contracts. In the matter of personal and contractual rights, therefore, women were held to stand on the same plane as the other sex and their rights in this regard could no more be infringed than the equal rights of their brothers. The Supreme Court, however, went on to hold that though the general right to contract in relation to one's business is part of the liberty of the individual protected by the Fourteenth Amendment to the Federal Constitution, yet that liberty is not absolute and extending to all contracts and the State may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual's power to contract. It was observed that woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence. The injurious effects upon her body of continuance for a long time on her feet at work, repeating this from day to day, was commented upon and the historical dependence of woman upon man was also stressed. It was remarked that though there had been an increase of capacity for business affairs on her part, it was still true that in the struggle for subsistence, woman was not an equal competitor with her brother. Then follow these observations :‑ "Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary ‑for men and could not be sustained." Reliance was also placed on behalf of the respondents in the course of arguments on two authorities from the Indian Courts published as Dattatraya v. State of Bombay (A I R 1953 Born. 311 (D B)) and Panchayat, Pandrapadu v. State of Andhra (A I R 1957 Andh. Pra. 355 (D B)). In the first case, the Bombay High Court dealt with the provision in section 10 (1) (c) of the Bombay Municipal Boroughs Act (XVIII of 1925) for reservation of seats for women and the rules made by Government with regard to the reservation of such seats for their election to the Jalgaon Municipality. It was found that they were infra vires and did not offend against any provision of Articles 14, 15 and 16 of the Indian Constitution. It was further observed that the Constitution had dealt only with the Constitution of Parliament and the State Legislatures and not with local authorities, and further that no restriction had been put by the Constitution on the manner in which the State Legislature may decide to constitute the municipal corporation and other local authorities. The fact was emphasised that the Constitution had not provided for any separate representation for women in Parliament or in State Legislatures, but it was remarked that this could not be used as an argument against the compe tency of the State Legislature, in the absence of a Provision in the Constitution itself prohibiting legislation expressly in that behalf, to make provision for separate representation of women in local bodies. Article 14 of the Indian Constitution corresponds to our Article 5 inasmuch as it enacts that the State shall not deny to any person equality before the law or the equal protection of the laws with the territory of India. Article 15 declares, inter alia, that the State shall not dis criminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. There is no such general clause forbidding discrimination on these bases, in oar Constitution though Articles 13, 14 and 17 cover part of that ground. It may be pointed out, however, that in Article J5 of the Indian Constitution a proviso has been added to the effect that nothing in this Article or in clause (2) of Article 29, shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The decision in the case cited was apparently relatable to Article 15 of the Indian Constitution rather than to any other provision. In the Andhra Pradesh case, the validity of section 10 (1) of the Madras Village Panchayats Act (X of 1950), which made special provision for the election of a woman member of a panchayat, was held as not violative of the rule of equality embodied in Article 14 of the Indian Constitution. It may be pertinent to observe, however, that the decision may perhaps have been more appropriately based on the proviso to Article 15 of the Indian Constitution. It is apparent that special legislation concerning the peculiar interests of women would be valid as, for instance, a law pertaining to maternity hospitals for women, as here the classification on the basis of sex would be eminently reasonable and related rationally to the object of the legislation aimed at, viz., providing special facilities for maternity cases. The question, however, that confronts us in the present case is whether there can be a classification based on sex in the matter of suffrage, and, in particular, whether the special provision made in the present case in respect of the election of men and women to the District Board, Lyallpur, offends against the equality clause of our Constitution or not. The impugned rules in the present case do not appear to proceed on any one rational principle. Whereas separate classification has been made of men's constituencies on a communal basis by placing Muslim men in one class and other minority communities in a separate class, the qualified women of the District Board area have all been put together in one class, whether they are Muslims or belong to the minority communities. At the same time, the segregation of the sexes for voting and for membership has been completely provided for. The 1952 District Board Rules placed adult men and women, who otherwise satisfied the qualifications of voters, or of candidates for election, on the same footing without any attempt at discrimination between them. Ex facie, the electoral rules framed for the District Board of Lyallpur are discriminatory against women. Out of eighty‑seven constituencies, only three have been assigned to women and eighty‑four to men. The sizes of the constituencies of women are relatively much larger, covering as each one of them does, one or more than one tahsil of the district, whereas in the case of men's constituencies, the corresponding area covered is very much smaller, consisting, as it does, of a few revenue estates. It is not denied in the written statement filed on behalf of the respondents that some of the women candidates withdrew from the contest in the recent District Board elections merely because they considered their constituencies to be unwieldy and too large. It is also interesting to note that for the District Boards of Rawalpindi, Attock, Shahpur. Jhang, Muzaffargarh, Gujranwala and Jhelum Districts, the electoral rules contemplated a joint electorate of men and women, but a departure has been made in the case of Lyallpur on the plea that because of the social and educational backwardness of women, residents in the rural areas, they were unable to complete with men in the matter of elections on fair terms and would have no chance to succeed against them. It is represented that experience in elections in other district boards had established this fact and consequently the impugned rules had been framed with the object of ensuring at least three seats for women. However, it is patent from the facts admitted that there is a wide disparity between the number of seats reserved for men and women and the measure is not merely directed towards reservation of seats for women but also for men. The women are not allowed to influence the election of men to the District Board because they cannot vote for them. A similar disability is imposed on men vis‑a‑vis women candidates, and perhaps on that ground it may be arguable that both sexes have been placed on a footing of equality. If it had been a mere question of segregation of sexes for the purpose of voting coupled with a rational principle of allocation of seats, say on the basis of population, perhaps the measure may not have been considered objection able. But in the guise of giving special protection to women, it was not open to the rule making authority to discriminate against women and prevent them from contesting an equal number of seats in the election to the District Board, con sidering that in the matter of the right to vote and to stand for election, the parent rules of 1952, to which the electoral rules are merely subsidiary do not make any distinction between men and women. The contention that women require special protection in this matter by a process of segregation, sounds somewhat strange when it is remembered that for the purpose of elections to the National Assembly and the Provincial Assemblies, men and women have been given equal rights to vote and to stand for elections from joint constituencies, though there is the additional safeguard provided by the Constitution in women's favour, by reser vation of a certain number of seats for them. Articles 44, 45, 77, 78 and 143 of the Constitution are instructive on this point. The elections to the Provincial and the National Assemblies under these provisions are envisaged on the basis of adult franchise in joint constituencies of men and women, with special reservation of a number of seats for women, for a specified period from the Constitution Day. Having that pattern in front of them, the rule‑making authority, if it really wanted to give special protection to women, could have resorted to a similar measure, but this is not what they have done. Actually the result they have achieved is to debar women from voting and contesting elections in eighty‑four out of eighty‑seven constituencies of the District Board, Lyallpur, and to confine their rights of voting and standing for elections to only three constituencies of an inconvenient and unwieldy size as compared with smaller constituencies for men. The woman's vote has become very much less effective than that of a man, in shaping the constitution of the District Board and her chances of membership are drastically curtailed compared to her male counter part's. Prima facie, therefore, this appears to be discriminatory legislation against women who were given equal rights with men in the 1952 Rules with one hand by the rule‑making authority and who were deprived of equality of rights with men with the other hand, by promulgation of the Electoral Rules. I cannot be said in the circumstances that the delimitation of constituencies according to the Electoral Rules has a reason able or direct connection with the supposed objective aimed at, namely, special protection of women. The allocation of the number of constituencies to men and women appears to be wholly arbitrary and capricious. The right to vote and stand for elections is a political right. That the guarantee of equal protection extends to, political rights is supported by authority. As was observed by the Supreme Court of the United States in Snowden v. Hughes (321 U S 1), where discrimination is sufficiently shown the right to relief under the equal‑protection clause is not diminished by the fact that the discrimination relates to political rights. It was added, however, that the necessity of showing purposeful discrimination is no less in a case involving political rights than in any other. As has been put by Mr. Justice Frankfurter, "in order to give rise to a constitutional grievance, a departure from a norm must be rooted in design and not derived merely from error or fallible judgment". In the present case, there is no doubt that the rule has been deliberately framed and it has been admitted in the written statement filed on behalf of the respondents that the object was not merely (as has been orally argued) to reserve certain seats for women, but also to reserve a larger number of seats for men. There was thus conscious discrimination in the present case as the number allotted to each sex was entirely disproportionate and not relatable to any rational principle. It may be added that according to Willis, (vide his Constitutional Law, page 193) suffrage is not a privilege of United States' citizenship. According to the learned author neither the Fourteenth, nor the Fifteenth nor the Nineteenth Amendment confers such a privilege. All that the Fifteenth Amendment does is to grant an immunity against discrimination on account of race, colour of previous condition of servitude, and all that the Nineteenth Amend ment does is to grant an immunity against discrimination on account of sex. The Fourteenth Amendment protects against the abridgement of privileges and immunities and guarantees equality, but these do not prevent qualifications for suffrage. Suffrage, therefore is subject to State regulation in that country. According to the learned author, qualifications for voting are legal though they disfranchise the negro from voting, if they are not discriminatory. This aspect of the United States' Constitution is not material for our purpose except perhaps to elucidate the parallel that our Constitution also does not lay down the qualifications for suffrage in respect of Local bodies though it prescribes them for the National and Provincial Assemblies. The qualifications of voters and members of such bodies is left to be regulated by legislative enactment but such legislation f must not discriminate between different classes of citizens on an irrational basis. In the contest of the present case, it is clear that neither the District Board Act nor the 1952 Rules framed thereunder, make any discrimination against women and yet the Electoral Rule of the District Hoard of Lyallpur framed in 1955 are clearly discriminatory against women. It cannot be plausibly argued that women would be unqualified to deal with questions such as are within the purview of district boards, like sanitation, provision for roads, hospitals, schools, etc. As citizens they are equally interested with men as residents of a district board area. Their educational and social backwardness is, we imagine, matched equally by a good proportion of illiteracy among men in the rural areas. Such backwardness of women, therefore, could not be pressed into service for discrimination against them. In Nain Sukh Das v. State of Uttar Pradesh (A I R 1953 S C 384) the Supreme Court of India affirmed the principle that the constitutional mandate to the State not. to discriminate against any citizen on the ground, inter alia, of religion, clearly extends to political as well as to other rights. It was in consequence decided that after the promulgation of the Indian Constitution, elections conducted on the basis of separate electorates for members of different religious communities must be held to be void as repugnant to Article 15 (1) of the Indian Constitution. Our own Consti tution is somewhat different inasmuch as, on the question of separate communal electorates, Article 145 contemplates that the Parliament may, after ascertaining the wishes of the Provincial Assemblies, by Act provide whether elections to the National Assembly and the Provincial Assemblies shall be held on the principle of joint or separate electorates. The Constitution has to be read as a whole and a law, therefore, which provides for separate communal electorates in Pakistan may not be regarded as repugnant to Article 5 of the Constitution. To that extent, the Indian ruling may not be apt for our purposes. Mr. Manzur Qadir, who appeared for Ata Muhammad, respondent No. 4 in Writ Petition No. 225 of 1957, and for the same respondent in Writ Petition No. 711 of 1957, referred to this Indian decision with the object of showing that in spite of a finding by the Supreme Court that the impugned law was held to be void, relief was not granted to the petitioners in that case, on the ground that they had acquiesced in the state of affairs against which they were complaining, by taking part in the elections under the impugned law. That decision, however, was rested on the fact that the relief asked for was outside the purview of Article 32 of the Indian Constitution, which contemplated only enforcement of fundamental rights conferred by Part III of the Indian Constitution. The time for such enforcement, after the elections, was over and that was the rationales of the decision. The learned judges of the Supreme Court of India made it clear at the same time that the petitioners could conceivably claim the relief asked for as rate‑payers of the municipality in appropriately framed proceedings. In all probability, for that purpose they should have approached the High Court under Article 226 rather than the Supreme Court under, Article 34 of the Indian Con stitution. Mr. Manzur Qadir suggested at one stage of his arguments that Muslim Law itself contemplated inequality between men and women in certain respects and, therefore, under our Constitution, any inequality of treatment between men and women in the matter of suffrage, would not be violative of the fundamental rights guaranteed by Article 5 of the Constitution to all citizens of Pakistan, The only test, according to the learned counsel, for judging the validity of such legislation should be whether it would benefit the community as a whole or not. With due deference to his opinion, if this could be the sole criterion for judging the con stitutionality of a statute enacted by the legislature, . it could always be pleaded that on the whole the object of the impugned legislation was the welfare of the community. In that way all discriminatory legislation, to the prejudice of any particular class, would have to be validated. This would make the provisions of Article 5 of the Constitution almost nugatory. Learned counsel sought to strengthen his argument by reference to Article 4 of the Constitution, which provides that any existing law or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of Part II of the Constitution, shall to the extent of such inconsistency, be void. He apparently assumed that "existing law" included Muslim Law and attempted to argue that if Muslim Law was to be saved from being declared void on the ground of sanctioning inequality between men and women in certain respects, the view pressed by him must be adopted, namely, that such inequality between the sexes was not hit by our Constitution. This argument omits to take note of the fact that "existing law", as defined in Article 218 of the Constitution, obviously excludes Muslim Law which is not enacted law. Muslim Law also cannot be said to be covered by the expression "any custom or usage having the force of law" occurring in Article

4. Our Constitution must be read as one organic whole. The Islamic provisions contained in Part XII of the Constitution make it clear that the injunctions of Islam are to be the guiding principles of State legislation and the existing law has to be brought into conformity with such injunctions, though only in the manner contemplated by that part of .the Constitution. Assuming, without deciding, for the sake of argument that some kind of inequality between the sexes is within the contemplation of Muslim Law, the provisions of that law would apparently be saved by Part XII of the Constitution. Clause (4) of Article 198 of the Constitution, even so, declares that nothing in that Article shall affect any provision of the Constitution. Considering the whole Constitution as one organic enactment, therefore, it cannot be aid that Article 5 of the Con stitution must come into conflict with any provision of the Muslim Law. The argument advanced is consequently untenable. It is significant that Article 224 which continues in force "all laws" does not merely talk of "existing law" so that Muslim Law, which is not enacted law, also continues to be the law of the land. Mr. Manzur Qadir tried to base an argument on the observations of the Bombay High Court in Dattatraya v. State of Bombay to the 'effect that discrimination in favour of a particular class would be permissible provided the classification is not based solely on the ground of sex. The learned judges were, however, in that case concerned more with Article 15 (3) of the Indian Constitution than with Article

14. Article 15 (3) enables special provision for women and children to be made and that was the ratio decidendi of the decision. It was urged that the question of suffrage was a political question which was not really justiciable and Mr. Manzur Qadir invited our attention in this respect to an American authority as Colegrove v. Green (328 U S 549). In that case the dismissal by a Federal District Court of a suit to have a division of a State into Congressional Districts, declared invalid, by reason of gross inequalities in the population of the respective districts, was sustained by' the Supreme Court of the United States, for reasons upon which a majority of the Courts were not in agreement. Justice Frankfurter, Reed and Burton based their opinion on a previous decision of the Supreme Court in Wood v. Broom (287 U S 1) in which it was held that there was no Federal requirement that Congressional Districts shall contain as nearly as practicable, au equal number of inhabitants, and secondly because the question was not a justiciable one. Justice Rutledge, on the contrary, thought that the question was of a justiciable nature but concurred in the result on the ground that the case was one in which the Court should decline to exercise its jurisdiction. Justices Black, Douglas and Murphy were of the opinion that the case was justiciable and one in which, because of the inequality in the population of Congressional Districts and the continued failure of the State authorities to make a reapportionment, the State should be prohibited from electing its congressmen under the existing system of Congressional Districts, leaving it free to elect them from the State at large. The decision of the majority was based on the peculiar provisions of the American Constitution and the decision is not helpful in the context of the resent case. Mr. S. A. Mahmud, who appeared for the first respondent, the Government of West Pakistan, suggested that the rule making authority had merely considered the realities of the situation and instead of leaving the women to contest all seats with men for the District Board elections had thought it fit in their wisdom to provide that there should be segre gation of sexes in the elections and that three seats should be secured for women as against eighty‑four for men. He suggested that this was a reasonable classification as there was no law requiring that the number or the size of consti tuencies should be equal or uniform. Of course a dead equality or uniformity in this respect must not be insisted upon but, as had been observed above, there must be some principle on which the allocation of constituencies or their formation is based, and in the present case we have been unable to discover one. The assignment of three consti tuencies to women and eighty‑four to men, each categord of constituencies covering the whole District Board area appears to be an entirely arbitrary and capricious decision of the rule‑making authority. The remarks of Willis that the existence of a state of facts which may reasonably be conceived to sustain a classification must be assumed, appears to us to be sound, but in the present case the suggested facts would not seem to have any rational nexus either with the declared object or the actual dispensation made in this case between the sexes. The right to vote, as argued by Mr. Mahmud, is subject to delimitation of constituencies which may be territorial or based on special interests, but qua citizenship and membership of the District Board, we have not been shown any real ground for assuming that the interests of men and women are different, justifying the impugned measure. It was also suggested that there was no demand on the part of women for joint electorates in this matter. This is not true. We have had several representations of women's organisations before us, who have forcibly pleaded for equality with men in this regard. They have drawn attention to the fact that their leaders have been agitating for some time for securing equal rights for women as against men in these elections. Sardar Muhammad Iqbal, who appeared for some of the respondents in these cases, urged that the petitioners were not entitled to any relief as they had acquiesced in the elec tions under the rules promulgated. In Writ Petition No. 711 of 1957, however out of the seven ladies, who are petitioners, four have not even been registered as voters. They claim that their names were unjustly omitted from the electoral rolls. None of these petitioners, moreover, contested' any election under the impugned rules. The principle stated by Mr. Muhammad Iqbal, therefore, cannot be availed of in these circumstances. Mr. Muhammad Iqbal also ingeniously tried to suggest that the 1955 District Board Rules of Lyallpur do not in fact debar women from getting themselves enrolled in men's constituencies and they could have preferred their claims before the relevant authorities at the appropriate time. This would be against the express stand taken by the West Pakistan Government. They have conceded that in fact the electoral colleges formed by them were intended to be exclusive for men or for women, as the case may be, and in practice this was the mode of registration of voters adopted. Although for the preliminary rolls, the rolls prepared for the Legislative Assembly were adopted as the basis, yet clear instructions were given to the officers concerned that the women's names occurring in those lists, pertaining to men's constituencies, were deemed to have been omitted wholesale. The argument of Mr. Muhammad Iqbal has no relation, therefore, to the facts of the case. The upshot of the whole discussion is that the Electoral Rules of 1955, discriminated against women and infringed the equality clause of our Constitution embodied in Article

5. A The position envisaged by these rules appears to be incon sistent with the 1952 District Board Rules and even if the 1955 Rules could be regarded as pro tanto superseding the 1952 Rules, they cannot be upheld as valid because of the constitutional objection. It must be found, therefore, that the Electoral Rules on the basis of which the elections were held and the formation and allocation of constituencies in the manner contemplated by the 1955 Rules, infringe the fundamental rights of the women‑petitioners guaranteed by Article 5 of the Constitution, and, consequently an election g held in accordance with these rules was no election in the eye of law. Writ Petition No. 711 of 1957, consequently, succeeds and we issue a direction to the respondents as prayed for, that they should not give effect to the elections already held under the impugned rules. It would be of course open to the authorities to hold fresh elections in accordance with the law and the Constitution. As the election as a whole has been invalidated, we have not considered it necessary to consider arguments on points taken in the other writ petitions. The respondents in those writ petitions, who have been at any stage declared to be elected to the District Board, cannot now obviously function in that. capacity and they are restrained from so doing, by a formal direction. In view of the difficult nature of the constitutional questions involved, we would make no order as to cost in these petitions. A.H. Appeal accepted.