February 2023

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAW: CONTEXTUALIZING ITS EVOLUTION IN PAKISTAN.

By
AHMED RAZA^{^[1]}

INTRODUCTION

Article 25(1) of the Constitution of Pakistan ensures that “All citizens are equal before law and are entitled to equal protection of law.” After reading it, the question naturally arises: what is the meaning and scope of this clause ? Under its cover, whether same laws are to be applied to all without creating exceptions on the basis of distinctions? Whether only similar persons are to be treated in the same manner or even those who are different are to be given the same treatment? If those who are different are to be treated differently, on what basis can it be decided that one group is different from another? Can sex,race or colour become the basis on which people can be treated differently? If yes, on what principles and under what conditions? Assuming differentiation between unlike is at the heart of the enforcement of this fundamental right, is it just permissible or mandatory for the authorities to treat differently those who are differently circumstanced ?

Sailing through all important and relevant case-laws on this subject from 1947 to till date, this article answers all the above questions by explaining the evolution and advancement of interpretation of the clause “All citizens are equal before law and are entitled to equal protection of law” . Beginning with JIBENDRA KISHORE ACHHARYYA case which was the first case law in Pakistan which defined this clause to I.A. Sherwani case (1990) which enunciated the guiding principles ,and from Dr. MOBASHIR HASSAN case(2010), the famous NRO case in which Supreme Court has traced the origin of this clause in the Islamic holy scripture and relying on the true spirit of this clause, nullified the National Reconciliation Ordinance, to Syed SADIQ SHAH (2022) case which stands out because the apex Court interpreting this clause made classification which was optional until then, mandatory for legislation whenever it is necessary and upheld that alike be treated alike and unlike be treated differently, this article analyzes all landmark judgments by the apex Court of Pakistan on this subject and endeavors to provide a holistic view of Judicial precedents for a clear and comprehensive understanding of the said equality clause. Considering these developments, this article concludes with
the argument that Pakistan, over the period of seven decades
has developed its own jurisprudence about the origin and scope of “equal protection of law” by introducing some distinct features, and recently Syed Sadiq Shah judgment by providing a novel interpretation to this clause, has taken a step ahead and paved the way for its development.

Equality Before Law and Equal Protection of law:
Article 25(1).

Since this article is devoted to understand Article 25 clause (1), for convenience of reader the text of article 25 is reproduced as under:

“25 Equality of citizens.

(1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”

Article 25 of the constitution of Islamic republic of Pakistan finds its place in the chapter of Fundamental Rights under Part II named as “Fundamental Rights and Principles of Policy”. By the virtue of its status, the same is enforceable under article 199(1)(c) when invoked before High Court and under article 184(3) when agitated before Supreme Court. The question of its enforcement renders it necessary to determine its meaning and scope. Clause (1) of this article is not only gist and essence of the article but also lays limitation on its scope. Since its straight and simple understanding implies application of same laws on all subjects notwithstanding the fact that some are differently circumstanced from the other, it gives birth to numerous questions ( mentioned above), about the validity of this guarantee of equality provided under this article. Following case laws answers of all these questions and provides a clear understanding of this clause.

After almost nine years of independence of Pakistan, it was only in 1956 when the first constitution of Pakistan was introduced. In that constitution, this same clause of equality was provided in article 5. The case of JIBENDRA KISHONDRRE ACHHARYYA CH etc Versus THE PROVINCE OF EAST PAKISTAN etc^{^[2]} was the first notable case in Pakistan after the introduction of this constitution in which the interpretation of the clause “Equal Protection of law “ was done. The case was heared and decided by five member bench of august supreme Court including Muhammad Munir,C. J., M. Shahabuddin, A. R. Cornelius, Muhammad Sharif and Amiruddin Ahmad, JJ . Facts: The relevant facts of the case are that the East Bengal State Acquisition and Tenancy Act^{^[3]} 1950 provided for acquisition by the State of the interests of rent-receivers in East Bengal. By subsection (1) of section 3, the Act enabled the Provincial Government to acquire all interests of such of the rent-receivers. Subsection (2) of that section empowered the Government also to acquire in a similar manner all or any of the lands in the khas possession of such rent-receivers. For this expropriation, the rent-receivers were declared by section 37 of the Act entitled to receive compensation on their net incomes on a sliding scale, that is to say, the rate of compensation decreasing as income increased. Exercising that power, the Government issued notifications, district-wise, purporting to acquire the interest of the remaining rent-receivers and the lands in their khas possession under respective sections. Consequently, 83 writ petitions were moved in the High Court of Dacca against the Provincial Government directing them to withdraw or rescind the notifications. The Dacca High Court repelled all the constitutional objections to the notifications after which petitioners appealed to the Supreme Court. Arguments: From appellant’s side it was contended (a) that the section 3 of the Act which enabled the Government to pick and choose rent-receivers whose interests were to be acquired, and conferred on the Government a naked and arbitrary power which being capable of being used in a discriminatory manner was void by reason of Article 5 which guaranteed equal protection of the law to the citizens of the State and (b) that since in the matter of compensation section 37 of the Act drew a distinction between income earning groups of rentreceivers, the provision was ex facie discriminatory and therefore void. For this appellant’s counsel relied on Yick Wo v. Peter Hopkins^{^[4]}, Wo Lee v. Peter Hopkins^{^[5]} and Homer Adolph Plessy v. John H. Ferguson^{^[6]}, Sir Kameshwar Singh v. The State of Bihar^{^[7]} and Dwarka Prasad v. The State of Uttar Pradesh etc.^{^[8]}

Held: The august Supreme Court citing numerous American and Indian judgments observed that the case-laws cited by appellant’s counsel were distinguishable both in law and facts from the case in hand and framed following questions of law and answered them accordingly: The first question was whether the act which is not ex-facie discriminatory, but grants to the government or any other authority the power which is capable of being administered in the discriminate manner and result in discrimination, can be declared as unconstitutional under article 5 of the constitution? Justice Munir stated,

“... Section 3 gave to the Provincial Government the power or discretion to acquire simultaneously or from time to time as was considered to be expedient... The Act is not discriminatory on the face of it because it does no more than empower the Provincial Government to acquire the interests of such rent-receivers...and the Provincial Government could acquire the interests of all rent-receivers throughout the Province at one and the same time. Where a statute is not ex facie discriminatory, but is capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner.”

The second question was: whether the classification of persons which has been done for the purpose of awarding compensation which is provided on the sliding scale on the basis of net income that is to say, the rate of compensation decreases as the income increase is consistent with the “equal protection of law” clause or not ? Answering it, the Court explained the origin and the scope of guarantee which has been provided under this phrase in the following words:

“… 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 negroes equal rights to the enjoyment of life, liberty and property . . . 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 in . . 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 frequently 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 privileges 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 classification 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 differences in race, color or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but be held that...the classification of the landlords on the basis of their net incomes at the time of their expropriation was a necessary and not an unreasonable classification …”

The Supreme Court held that sections 3 and 37 of the Act did not offend Article 5, and or so far as waqf or debutter estates were concerned against Article 18 of the Constitution, and were, therefore, not void or inoperative.

Principle enunciated: The first principle which was enunciated was (1) If a statue is not ex-facie discriminatory, neither the act nor the action under it can be declared as unconstitutional unless actual discimination is shown as a result of its administration. Secondly it was held that (2)Classification and different treatment in consequence thereof is permissible in the presence of “equal protection of law” clause, provided that classification is reasonable and bears a fair and substantial relation to the object of the legislation. However, the Court can not expect from the legislature scientific accuracy in classification.

The case of BENDRA KISHORE ACHHARYYA CH was the first case in Pakistan in which the scope of “equal protection of law” was explained in depth and the limitations of the guarantee provided under it was clarified. The detailed judgment set the foundations for decades to come. It can be safely said that the principles are still intact and no judgment in seventy years after this decision attempted to deviate from it.

The second remarkable case in the history of Pakistan and first after the promulgation of Constitution of Pakistan 1973, was of BRIG. (RETD.) F. B. ALI etc versus THE STATE^{^[9]} (1975) which was adjudged by a five member bench of the Supreme Court headed by Hamoodur Rahman, C. J.. Supreme Court in this case relied on the interpretation of “equal protection of law” given by apex Court in JIBENDRA KISHORE ACHHARYYA case and clarified it by answering some significant questions of law which arises when this principle is applied in different fields by the state. The first question was whether different laws can be made on the basis of sex, age, occupation, special needs of locality or particular community? The judgment stated as follows:

“Thus different laws can validly be made for different sexes, for persons in different age groups; e. g., minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners.

Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special law made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency. Where, however, the law itself makes no classification but leaves the selection to an outside agency or an administrative body without laying down any guidelines, thus enabling the body or authority to pick and choose, a legitimate complaint may be made on the ground that the law itself permits discriminatory application.”

For this, the judgment relied on Waris Meah v. The State^{^[10]}, Jibendra Kishore Achharya v. Province of East Pakistan.^{^[11]}

On the question of whether a test can be devised to determine when the principle of equal protection of law is to be applied and classification on the basis of that may be done ? Apart from tracing the origin of “equal protection of law”, observing that no strict definition can be proposed for it nor can any test be devised for it, the Court remarked:

“The concept of the “equal protection of laws” which is derived from the American Constitution is not susceptible of any exact definition. In other words, as stated by the editors of American Jurisprudence^{^[12]},no rule as to protection of laws that will cover every case can be formulated and no test of the type of cases involving such a clause of the Constitution can be infallible or all-inclusive. Moreover, it would be impracticable and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises. Be that as it may, the only generalization that is possible is that it means subjection to equal laws applying to all in the same circumstances; but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable and is based upon substantial differences having relation to the objects or persons dealt with and to the public purpose sought to be achieved. It guarantees equality and not the identity of rights.”

Commenting on the question whether legislation for a particular group of people be done and if yes then whether different procedural laws also be made for different person or does this classification in legislation only restricted to substantive rights, the judgment states as follow:

“The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby sortie people acquire rights car surer disabilities which others do not. What, however, is prohibited under this principle is legislation favoring some within a class and unduly burdening others. Legislation affecting alike persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be a permissible classification. Under this principle the American Courts have consistently held that the equal protection of the laws is not by a course of procedure which is applied to legal proceedings in which a particular person is affected if such a course also would be applied to any other person in the State under similar circumstances, vide: Tinsley v. Anderson^{^[13]} . The equal protection clause does not demand uniformity of procedure. The Legislature may well classify litigation and adopt one type of procedure for one class and a different type for another. The American Supreme Court has even held that a State may make different arrangements for trials under different circumstances of even the same class of offences vide Graham v. West Virginia^{^[14]}.”

These principles have been approved by the Supreme Court in Ch. Ata Elahi v. Mst. Parveen Zohra^{^[15]}, Jibendra Kishore Achharyya v. Province of East Pakistan^{^[16]}, Zain Noorani v. Secretary, National Assembly^{^[17]} and Waris Meah v. State^{^[18]}.

While addressing the third question, what can be called as reasonable classification and who will determine whether a classification is reasonable or not and what factors are to be taken into consideration for determining it ? the apex Court referred to the following extract from the book titled as Constitutional Law by Wills:

“There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political, or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the Court may consider matters of common knowledge, matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such proof it must be shown that there is no reasonable basis for the classification.”

Principle enunciated: The first principle devised by the Court in answer to first question was (1) Different laws can validly be made on the basis of sex, age, financial status, occupation, privileges and need of a particular community or locality. Secondly, (2) No general definition can be given of the phrase “equal protection of law” nor can its scope be defined strictly. So the rule is that every case is decided according to its own facts and circumstances and this phrase is applied accordingly. The essence of these words is it guarantees equality and not identity of rights. Lastly, (3) Courts will determine whether a classification is reasonable or not for which it can take into consideration the social, economic and political factors and may have recourse to matters of common knowledge, reports and history etc.

The principles laid down in above judgments were applied in numerous judgements of Supreme Court and High Courts but no new interpretation or advancement was made in this concept for at least next 15 years, after which the next landmark case came into the picture on this subject. That landmark case titled as I.A. SHARWANI etc versus Secretary, Finance Division, GOVERNMENT OF PAKISTAN etc^{^[19]} was decided by Saad Saood Jan, Ajmal Mian , Muhammad Afzal Lone, Sajjad Ali Shah, and Rustam S. Sidhwa, JJ.The judgment explained from very basics the concept of equal protection of law and summed up the principles laid down by superior Courts in Pakistan and India. Apart from upholding the principles already devised in Pakistani judgments, the judgment adopted and endorsed few principles from Indian judgments. The judgment referred to Brig. (Retd.) F.B. Ali and another v. The State^{^[20]}, Secretary, ministry of interior and Kashmir Affairs v. Abdul Wali Khan^{^[21]},Mst. Aziz Begum etc v. Federation of Pakistan etc^{^[22]} Shrin Munir and others v. Secretary Health, Government of Punjab etc^{^[23]}, Charanjit Lal Chowdhury v. The Union of India and Others^{^[24]} ,The Anant Mills Co. Ltd. v. State of Gujarat etc^{^[25]}, State of Kerala etc v. N.M. Thomas etc^{^[26]}, Ajay Hasia etc. v. Khalid Mujib Sehravardi etc^{^[27]},D.S. Nakara etc v. Union of India^{^[28]} and relying on these judgments, stated that:

“... From the above cited cases the following principles of law are deducible:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons

having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based:

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.”

Furthermore, the supreme Court referred to principles summarized by V.N. Shukla in his book Constitution of India and stated as following:

“Suffice to refer a passage wherein the learned author has inferred following principles as to classification with reference to various judgments of the Indian Supreme Court on Article 14 of the Indian Constitution of the Indian Constitution:

(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.

(b) There is always a presumption in favor of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 14 (corresponding to Art. 25 of Pakistan’s Constitution) has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact.

(c) It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds.

(d) The Legislature is free to recognise the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.

(e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

(f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

(g) A classification need not be scientifically perfect or logically complete.

(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.”

Principle: Three principles followed in Indian Courts were endorsed by Supreme Court of Pakistan. Firstly, (1) Petitioner challenging the constitutionality of a law must make out that (a) not only has he been treated differently from others but (b) he has been so treated from persons similarly circumstanced without any reasonable basis and (c) such differential treatment has been unjustifiably made. Next to it, (2) A classification need not be scientifically perfect or logically complete. Last but not the least, (3) The presumption of the constitutionality about a law cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

Until then, it was established that the question whether a classification is reasonable or not is the question of fact and it is only the Court which can determine whether a classification is reasonable or not and only the restriction which was imposed on the Courts was that the Courts can not demand scientific or mathematical accuracy from legislature about the classification. Ms. ATTIYYA BIBI KHAN etc versus FEDERATION OF PAKISTAN through Secretary of Education, etc^{^[29]} (2001), was the first case in which the question of reasonable classification was connected with the principles of policy given in the constitution. The question was whether a classification which fosters the objects and aims of the constitution, especially the aspirations which are given in Principles of policy and does not deviate from it or run contrary to it, can be called as unreasonable ? The majority judgment discussed it as under:

“No doubt, 37(c) occurs in the Principles of Policy and is not directly enforceable; nevertheless Article 29 of the Constitution requires each organ or authority of the State to act in accordance with those Principles. In Benazir Bhutto v. Federation of Pakistan^{^[30]} , this Court described these Principles of Policy as the conscience of the Constitution and the basis of all executive and legislative action; In Employees of the Pakistan Law Commission v Ministry of Works^{^[31]} it was held that the provisions relating to Fundamental Rights ought to be read together with the directive Principles of Policy. Considering the judgments in Abdul Qadir Shaikh v. Registrar, N.E.D. University of Engineering and Technology^{^[32]} and Abdul Fareed v. N.E.D. University of Engineering and Technology,^{^[33]} the apex Court endorsed that Article 37(c) which is related to making higher education accessible ought to be read with Article 25 which is regarding equality of citizens...Thus, reading Article 25 alongwith Articles 2A, 22 and 37(c) of the Constitution would show that only such classification could be deemed reasonable which fosters the objects of the Constitution i.e. to make higher education available on merits and at the same time to accommodate the interests of the socially or economically disadvantaged sections of the people for the purpose of fostering genuine rather than nominal equality.”

Principle: The rule was laid down that a classification is reasonable when it fosters the object of the constitution and does not deviate from it. Only such classification can make way for genuine equality rather than nominal equality.

It was the first instance when a rule of law was devised for testing whether a classification is reasonable or not. This marked an important development in the evolution of the concept of “equal protection of law” in Pakistan. Moving on, the origin of the phrase “equal protection of law” is generally traced to the 14th amendment in the American constitution and that of “equality before law” to UK’s constitutional law, especially the writings of A.V Dicey. Dr. MOBASHIR HASSAN etc Versus FEDERATION OF PAKISTAN etc^{^[34]}(2010), was the first case in the constitutional history of Pakistan in which its origin was explored and established from Islamic Holy scripture. Article 25 was understood from the perspective of objective resolution which contemplates the implementation of islamic values and laws in Pakistan. This case was decided by seventeen member bench of the supreme Court headed by Iftikhar Muhammad Chaudhry, C.J. Giving altogether a new perspective to understand the birth of the concept of “equality” and “equal protection of law”,

by referring to Quran and Encyclopedia of Seerah (Sunnah, Da’wah and Islam), 1st Edn. 1986. Vol.IV (p:147-148), the judgment stated as follows:

The first judgement in seventy years in which the origin of equality was traced to the teachings of Islam was the case titled as the famous NRO case, which was

“... The principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings. The Qur’an declares, “ O mankind! Behold, we have created you all out of a male and a female and have made you into nations and tribes, so that you may know each other. Surely, the noblest of you in the Sight of Allah is the one who is most pious.” (49:13)

... So, If there is any discrimination for any man or woman in Islam, it is on merit and on merit alone. Those who develop their personal relationship with Allah fear Allah, attain degrees of piety and taqwa of Allah, and reach higher stations of excellence in the Sight of Allah.

Equality of Rights

It is implicit in the Doctrine of Tawhid and is also an essential ingredient of justice and equality that all people must enjoy equal rights without discrimination on any count in all fields and departments of life. In the enjoyment of social, political and religious rights, there must not be any discrimination between ruler and ruled, employer and employee, rich and poor and man and woman: all should enjoy these rights freely, equally and without any check or restriction. Denial of any of these rights to any member would, in. fact, be a denial of the Doctrine of Tawhid.

Equal Treatment

The logical consequences of the above principle in practice demands absolutely equal treatment of all citizens, without any reservation, in all areas of life. It also requires: (a) equality of opportunity of education, training, employment and promotion in all services for all citizens, irrespective of their social or political status and influence; (b) equal treatment in all departments, without discrimination of any kind between rich and poor, big and small or workers and employers”

Moreover, relying on the Islamic principles and the principles laid down in I.A Sherwani Case, the Court declared National Reconciliation Ordinance as void ab initio because of the absence of intelligible differentia on the basis of which accused were said to be classified. The judgment stated as follows:

“Newly inserted Section 33F of the National Accountability Ordinance, 1999, under Section 7 of the National Reconciliation Ordinance, 2007, has not only made classification between the general public and the `holders of public office; but also amongst the `holders of public office; on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to 12th October, 1999, has been extended on the criteria that prolonged proceeding are pending against them. Prior to the National Accountability Ordinance, 1999, Ehtesab Act, 1997 was in field, which was repealed on the promulgation of the National Accountability Ordinance, 1999, as a result whereof, the proceedings initiated under the said Act, were protected by means of section 33 of the National Accountability Ordinance, 1999, which provides that any and all proceedings pending before the Court under the Ehtesab Act, 1997 shall stand transferred to a Court, as soon as it is constituted under this Ordinance, within the same Province, and it shall not be necessary to recall any witness or again to record any evidence, that may have been recorded. As far as Ehtesab Act is concerned, it was enacted on 31st May, 1997 and was made effective w.e.f. 6th November, 1990, so through the National Reconciliation Ordinance, 2007 benefit of withdrawal or termination of the cases or proceedings has been extended to persons whose cases are covered between the period from 6th November, 1990 and 12th October, 1999. Interestingly, neither the benefit of the National Reconciliation Ordinance, 2007 has been extended to the `holders of public office against whom cases were registered prior to 6th November 1990 nor to those `holders of public office; against whom cases have been registered after 12^th October, 1999, although the cases were registered against such persons, even before and after these cut off dates. Thus for this reason as well, all the holders of public office; against whom cases have been initiated before 6th November, 1990 and after 12th October 1999 are also entitled for equal protection of law because they are similarly placed. Therefore, on the basis of intelligible differentia, no distinction can be drawn between both the groups, as such the above sub-classification within the class of `holders of public office; is not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the National Reconciliation Ordinance, 2007 as such, it, being a discriminatory law, deserves to be declared void ab initio.”

Principle: First and foremost, an altogether new perspective was introduced for understanding the origin of equality. It was held that (1) The principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings. Secondly, on the subject of sub-classification, it was stated that (2) When no justification has been provided for making a sub-classification within a the class and those who are chosen through that sub-classification are specially treated or discriminated against, such classification can never be on the basis of “intelligible differentia”.

Through this series of cases, an important question which was ever overlooked and never came into discussion was regarding the necessity of classification. The question was: whether after considering the facts which necessitate classification, is it optional or mandatory for a law-making body to make classification? Before the arrival of the following judgment, it was well established that the legislature or law-making body can classify people provided classification is reasonable and fair. However, the question whether it is mandatory or not under article 25, remained untouched. It was the landmark judgment of Supreme Court in GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary etc Versus Syed SADIQ SHAH etc^{^[35]} which marked on the one hand the culmination of the concept of “equal protection of law” in Pakistan’s legal history and on the other hand, through the novel interpretation it has introduced, paved the way for its further development. The three member bench of Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ heard and decided the case with Mazhar Ali Akbar Naqvi as an author of the judgment.

Facts: Briefly stated the facts of the matter are that: The Government of Khyber Pakhtunkhwa announced increase in salaries, however, it made a distinction that 5% ad hoc relief allowance will be provided to employees of BPS 17 to BPS 19 but the same was not made available to those employees of the Provincial Government who were already drawing special allowances including Special Judicial Allowance. As the respondents being employees of BPS 17 to BPS 19 of Peshawar High Court were already drawing Special Judicial Allowance, therefore, they were denied the said 5% ad hoc relief allowance. Being aggrieved by the notification, they challenged the impugned notification before the Peshawar High Court, Peshawar, by filing a Constitutional Petition on the ground that the notification in question is discriminatory in nature and is issued in defiance of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, hence, not sustainable in the eyes of law. Question: There were three questions involved: (i) whether the classification in question was not based on intelligible differentia and thereby was contrary to Article 25 of the Constitution of Islamic Republic of Pakistan, (ii) whether the executive authority can classify and sub-classify the employees only to the extent to grant certain extra benefits? Lastly, the vital question was: whether is it optional or mandatory for a law making body to do classification where necessary?

Held: The Supreme Court after answering the first two questions in affirmative, discussed the true interpretation of article 25 of the constitution and then answered the third question in the following manner:

“Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression equal before law; is a declaration of equality of all persons irrespective of gender, race, religion, color, caste, creed, status and language etc, implying thereby the absence of any privilege in favor of any individual. The guiding principle of this Article is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, this Article does not forbid different treatment of unequals. The rule is rather that alike should be treated equally and that unlike should be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principle of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority. It is now well established law that persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. The principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position. The varying needs of different classes of persons require different treatment.”

Principle: Firstly, emphasizing the need of classification where it is needed, Supreme Court made it mandatory for legislature and law-making bodies that this principle of classification is not only permissible but mandatory to be followed and if the gist of article 25 is understood, it binds the legislature to classify persons and groups where it is needed and non-classification is not the exercise of discretion by the legislation but clearly in violation of the spirit of constitution. Going through previous judgments on this subject, it becomes clear that it was the Sadid Shah case in which for the first time, the Court declared the classification mandatory. Another distinguishing aspect of this judgment is, it has read this protection of classification in the words “equality before law” as compared to the previous precedents in which the same protection was read in words “equal protection of law”. In this context, this unprecedented interpretation marked a significant development in the evolution of meaning and scope of Article 25.

CONCLUSION:

The origin of the concept of “equal protection of law” is traced back to the 14th amendment in the American constitution. The simple and straight meaning of “equality before law and equal protection of law”, if interpretation which has been given and endorsed by the apex Court over the period of 70 years is not kept in mind, is that all laws be applied to all persons irrespective of their circumstances and situations. The net result of which would be to throw unequals in the same pool and treat similarly those who are dissimilar. Therefore, this interpretation, if adopted, would not only leave article 25 of the constitution as meaningless and futile but would also introduce it as a tool for discrimination and inequality. In this backdrop, the interpretation given by the apex Courts in above judgements become indispensable for the proper, comprehensive and valid understanding and implementation of article 25. This article cannot be understood without understanding it from the judicial perspective laid down in case laws. Considering all the precedents on this subject, it can be safely concluded that equality before law and equal protection of law do not prohibit classification rather it require it where it is necessary, provided the same should be on basis of intelligible differentia and must have the relation with the object it desires to achieve through it. So, different laws can validly be made on the basis of sex, age, financial status, occupation, privileges and need of a particular community or locality. Courts will determine whether a classification is reasonable or not for which it can take into consideration the social, economic and political factors and may have recourse to matters of common knowledge, reports and history etc. A classification need not be scientifically perfect or logically complete. Petitioner challenging the constitutionality of a law on the basis of unjust classification must make out that (a) not only has he been treated differently from others but (b) he has been so treated from persons similarly circumstanced without any reasonable basis and (c) such differential treatment has been unjustifiably made. This strict scrutiny is because of the reason that doctrine of reasonable classification is indispensable for a state keeping in view its necessities and functions. Therefore, laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress.

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[1]. The author is a lahore-based practicing lawyer.

[4]. U. S. Supreme Court Rep. 30 Law. Ed. 220

[5]. U. S. Supreme Court Rep. 41 Law. Ed. 220

[6]. U. S. Supreme Court Rep. 41 Law. Ed. 256