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1993 S C M R1781 4/10/20, 7)49 PM

1993 S C M R1781

[Supreme Court of Pakistan]

Present: Muhammad Afzal Zullah, CJ., Muhammad Afzal Lone and


Wali Muhammad Khan, JJ

M. ISMAIL QURESHI and others---Appellants

versus

M. AWAIS QASIM, SECRETARY, GENERAL, ISLAMI JAMIAT TULBA, PAK and 3


others---Respondents

Human Rights Cases Nos.43, 59, 63, 64, 65, 79, 602, 603 of 1992 and Constitutional Petition No.14 of 1990,
decided on 10th March, 1993.

(a) Educational institution---

----Admission to an educational institution---Undertaking by the student and his parents/guardian that the
student shall not "indugle in politics" failing which, he shall not be allowed admission and if after admission
he violates the same he shall be expelled without further notice---Violation of such
undertaking---Consequences of violation of such undertaking and detailed procedure with clarifications in
respect thereof ordered by the Supreme Court with the observation that the procedure will be kept under
review from time to time by the Supreme Court---Expression "indulgence in politics" elaborately
defined---Constitution of Pakistan (1973), Art. 184 (3).---[Word and phrases].

At the time of admission to an educational institution, the student and his parents/guardian shall give an
undertaking that the student shall not "indulge in politics"; failing which, he shall not be allowed admission.
And if, after the admission, he violates such undertaking i.e. "indulges in politics", he shall be expelled from
the institution without any further notice. All the Educational Institutions shall henceforth seek and obtain
similar undertakings in respect of all existing enrolled students, failing which and/or in contravention thereof,
the results, shall mutatis mutandis ensue as above directed. The finding with regard to "indulgence in politics"
given by the Head of Institution under his seal and signature shall be final and shall not be questioned except
only before the Supreme Court. As soon as a reasonable complaint is received or reasonable suspicion is
entertained by the Controller of Examinations that a "malpractice" has been committed by any candidate or
by any one else for his benefit; in connection with any examination, he or she (Head of the Institution) shall
withhold the result of such candidate and shall hold inquiry into the "mal-practice". In case, the result is
declared, which is favourable to the candidate, the result together with entire proceedings shall be forwarded
to the Advocate-General of concerned province; who shall take such steps and measures as may be
appropriate. Such measures shall also include a reference to Supreme Court for orders.

So far as the subject of "indulgence in politics" is concerned order so passed, keeping in view the nature of
the subject-matter, was to be kept under review from time to time by the Supreme Court.

The expression in the order "without any further notice" has not been correctly understood. The use of word

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"further" signifies an assumption that something has already been done. One aspect of course is the
submission of the undertaking by the student and his parent/guardian which indirectly contain a notice that if
the undertaking is contravened the person concerned would have to be dealt with in accordance with the said
undertaking as well as what is clear from the order passed by the Supreme Court. But these assumptions do
not exclude the possibility of the person concerned; namely, the student and/or parent/guardian availing the
opportunity of making submission to the authority concerned against the action visualised in the undertaking
and the Supreme Court order. Even if it is a case in which the disobedience visualised in the undertaking and
the defiance is in the very face of the Authority concerned and no more evidence like the contempt in face is
needed for purpose of rendering a finding of guilt; yet that would not, as experience in the implementation of
the interim order, has shown, obviate still another possibility that the defaulting person might be able to
convince the authority concerned that he did certain act under unbearable coercion and thus seek mitigation
and similarly the principles of Tauba and might be pressed into service. And as a result thereof neither the
student nor the institution might suffer any permanent damage. The expression "without any further notice"
therefore, will have to be read in the above explained context. It may not be prior notice and about
opportunity it can be as soon after as may be possible in accordance with the facts and circumstances of the
case. It has further to be elaborated in the same context that although in the interim order the initial findings
of fact were left with the authority within the campus, it was assumed that in cases of contest by denial of the
"indulgence in politics" the minimum requirement of defence shall have to be followed.

The finding in order to be placed before the Supreme Court has to be an honest, fair and should pass the test
of reasonableness. The minimum opportunity of defence is also sine qua non for such a finding; namely,
making the person aware of the accusation and confronting him with the material with a view to offer
explanation; though it is emphasized that full-fledged trial like one under the Civil and Criminal Procedure
Codes, as held by Supreme Court in several other cases, is not at all required. The technicalities and
formalities which are often pressed into service in such trials are to be avoided and simpler procedure for
deciding the matters within hours and days and not in weeks shall have to be adopted. The fact that the
Supreme Court itself shall scrutinize the findings if brought before it should remain a reminder to the
authorities concerned that when the orders are under scrutiny by the Courts those who passed them are also
under similar scrutiny.

The office-bearers of the Union and other Union members by virtue of certain provisions in the relevant laws
are made the members of the governing bodies of educational institutions like Syndicate, Senate etc. Not only
this they are also made members of certain Committees. The dignity of the teachers, the institution and the
majority of students community has been severely adversely affected, besides infringement of several other
fundamental rights including those relating to movement, expression, speech, freedom of assembly and above
all the dignity of the teachers and a large majority of the students gets violated in one or the other set of
circumstances. The example can be multiplied many times.

While restoring legitimate students group/unions activity, association of the group and union members with
organizational set-up of the educational institution, in any form whatsoever, is prohibited. However, the
students, the members of the groups/unions and their office-bearers will continue to be at liberty to bring
their grievances, proposals, suggestions and other measures for improvement of their educational life and stay
in the campus, to the functionaries who are made incharge of the students affairs as also after the needful is
done in this behalf, to make application to the head of the institution. The head of the institution shall take
prompt action but if he is brought under coercion by any means or by any other undignified act he will not be
obliged to take any immediate action. Indeed he shall, as his duty, examine the matter as and when free from
coercion and pressure, and decide it in accordance with the dictates of justice, fair play and in accord with the

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parental jurisdiction of sympathy and compassion. Following a refusal to redress if a question is certified as
vital by the head of the students affairs and by the head of the institution or by an unanimous decision by the
executive of the group or union the matter may then be brought before the Supreme Court under Article 184
(3) of the Constitution, for appropriate orders.

Those who "indulge in politics" in the educational institutions being a very small minority violate several
fundamental rights of a vast majority of the students, their parents and guardians, besides of those who are
otherwise directly or indirectly linked or connected therewith.

The word "politics" also speaks a lot as against mere political science or a political activity. But by itself it
undoubtedly can give rise to mis understanding. An exercise in debating certain issues of political science
even if they are not of general character but relate to the special conditions of the country introduced as a
subject for debate by a group of students for the students only may not be described as "politics" as the word
is used in the order; but the essential qualification or for that matter the definition is supplied by the word
"indulgence"---With that part of its connotation, which every body understands as a bad one. No doubt it
will depend upon the level of the institution, the locality where it is situate, the population and its culture
from where the majority of the students community are inducted in the institution. That is why Supreme
Court has left the determination of the basic findings to the institution concerned. It will be necessary to keep
all these aspects in view when giving a finding regarding indulgence in politics". There can be cases where
with some difference of facts or shade of activity an act may not be treated as "indulgence in politics" in
certain institution of a Province or a region of Pakistan, but in another situation, it was so treated. The
experience, wisdom, intellectual and scholarly attainment combined with compassion of the institutional
set-up, will be able to control, define or discern "indulgence in politics" in an institution and in its own
environs.

When any exception is brought to the notice of Supreme Court, particularly if the action is tainted with mala
fides Court will rectify the wrong very firmly; amongst others, so as to keep the stream of justice unsullied by
such like undesirable deviation.

Shah Alam Khan v. Agricultural. University, Peshawar 1993 SC 297; University of Dacca v. Zakir Ahmed
PLD 1965 SC 90 and Nadim Khan v. The Board of Intermediate and Secondary Education, Peshawar PLD
1993 SC 397 ref.

(b) Constitution of Pakistan (1973)---

----Art. 184 (3)---Jurisdiction of Supreme Court under Art. 185 (3)---Nature and limit.

The dispensation under Article 184 (3) of the Constitution for the enforcement of fundamental rights by the
Supreme Court is a very special provision in the Constitution. When the condition, that a fundamental right is
being enforced, is satisfied, then the only limit on the power of the Supreme Court to pass orders is that they
should be "appropriate".

Darshan Masih v. The State PLD 1990 SC 513; Government of Balochistan v. Azizullah Memon PLD 1993
SC 341 ref.

(c) Constitution of Pakistan (1973)---

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----Part II, Chap. 1 and Art. 184(3)---Students who indulge in politics in the educational institutions
violate several fundamental rights of a vast majority of the students, their parents and guardians, besides of
those who are otherwise directly or indirectly linked or connected therewith.

(d) Educational institution---

---- Students who indulge in politics in the educational institutions violate several fundamental rights of a
vast majority of the students, their parents and guardians, besides of those who are otherwise directly or
indirectly linked or connected therewith.

(e) Educational institution-

---- Classical Union activities, exclusively relatable to the educational needs, directly relatable to the
campus could be permissible---No one student or group, can be given an unbridled right to control and
coerce another student or group---Parental atmosphere, jurisdiction and philosophy has to be
followed---Constitution of Pakistan (1973), Art. 185 (3).

Classical Union activities, exclusively relatable to the educational needs, directly relatable to the campus,
could be permissible. Such educational needs, of course, would include general education also through
extra-curricular activity. This does not mean directing the formal formation of the classical "Union". Instead
it should, as is the pith and substance of the present exercise, be also left to each institution; which, keeping
in view its own circumstances should devise and name it; as also its purposes, procedure, practices, ideas,
aims, standards, moral and otherwise, for formation of students groups under appropriate umbrella. This all
will have to be carved deftly by the institution itself. It may not necessarily be treated and named as Union.
Such groups would keep a low key activity, of course, under the guidance and umbrella of the institution
concerned which if do not have already raised a department of students affairs, should immediately create
such department. The senior teachers and guides should be associated directly with the students activity
particularly those who are experts in exercising parental jurisdiction with more compassion than authority.

It is not the students organization which is primarily responsible for the observance of the ideological basis of
Pakistan in the educational institutions; rather the institution and its functionaries are not only responsible
primarily but always responsible in this behalf. A functionary in a Pakistani institution who is against the
ideological basis of Pakistan, as is. enshrined in the Constitutional set-up; or is against the training of his
wards entrusted by the institution to him in line with it; is against or neglects and does not propagate ideology
of Pakistan, amongst the students community, has no right to remain in the institution. And if the institution
itself commits such acts or omissions, it is better to close, rather than to permit it, to contravene the
Constitutional set-up of Pakistan. Therefore, it will be more advisable to re- entrust the education and
training of the students on the lines of the ideology of Pakistan to the teachers and the institutions themselves
under the pain of penalty. This of course is with a clarification that the groups under whatever name, through
which the so called Union activity will be revived in the educational institution, would not be debarred from
the ideological path and educating and training themselves in that behalf, but only with the assistance,
guidance and help from their parents, their teachers and institutions. No one student or group can be given an
unbridled right to control and coerce another student or group. The parental atmosphere jurisdiction and
philosophy has to be followed on this subject also.

(f) Educational institution---

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----Possibility of creating a political party structure without indulgence in politics in the educational'
institutions discussed.

The possibility of creating a mid-way, political party structure as some youth wings are, cannot be excluded
altogether. But instead of riding the wings of educational institutions or flying under the wings of the student
community; the politically oriented/minded youth after completing the education and/or training in the
institutional atmosphere, may join those youth wings of the like minded political parties. Those who are
imbued with national service and we do feel that entry in political life is also a national service, might be able
to develop such a youth political set up, which would obviate the "indulgence in politics" in the educational
institutions.

Such experiment can be faithfully and honestly undertaken by educated young people, fresh from the
Universities who are full of life and vigour with national spirit, might join the profession of politics in the
form of apprentices or make junior political parties. If such intermediary system develops, the linkage with
senior parties and senior politicians would automatically start developing. And without any "indulgence in
politics" in the educational institutions, final stage students community also, might start looking towards the
intermediary political organizations in the country. This possibility cannot and should not be treated as a
verdict by the Supreme Court. It is only a possibility with amongst many others can be visualised as to how
these young people who have clearly and cleanly passed their allotted time in the educational institutions and
want to improve the society through their participation in the political life of the country, might start a
beginning with organizational set-up like the one at the youth winiz stage. But this set-up if develops will
also have to be kept out of the educational institutions. They would not be provided facilities in these easy to
reap, fields.

(g) Educational institution---

---- Case of malpractice decided by the competent authority if results in any punishment---Interim
procedure laid down by Supreme Court in that behalf detailed---Constitution of Pakistan (1973), Arts. 184
(3) & 190.

A case of malpractice decided by the competent authority if it results in any punishment, shall after it goes
through the institutional appeal set-up, be placed before the Advocate-General of the Province concerned
within three days of the final decision by the final authority, in the institution; who shall within a week
scrutinize it and refer the matter to the Supreme Court under Article 184 (3) of the Constitution with his
detailed report and comments. He and all other executive and judicial authorities in this behalf shall act in aid
of the Supreme Court under Article 190 of the Constitution. The office of the Supreme Court shall place the
case before learned Judges in chambers for processing within a week of the receipt of the reference from the
Advocate General for any order that may be considered "appropriate" and action under Article 184 (3) of the
Constitution. Regarding the cases of malpractice in which the accused is exonerated by institution it will be
optional for the Advocate General to seek information from the institution concerned on a complaint or other
information received in that behalf in any manner whatsoever. And if he finds as a State representative that
the exoneration is improper (and not merely wrong on technical grounds) he shall similarly make a reference
to the Supreme Court with his comments/report and action proposed by him. Lastly, in this behalf the
Government concerned might examine in the meanwhile the advisability of empowering certain authorities at
certain high level, conducting the examinations to arrest any person concerned with the relevant examination
on prima facie material showing commission of a malpractice which is also an offence under the law and to

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put up a report like the one under section 173, Cr.P.C. before a Court of competent jurisdiction; alongwith the
accused concerned as soon as after the arrest as possible. And the Court concerned to commence the trial as
soon after the submission of the report as possible but not later than seven days or within two days of the
conclusion of examination whichever is earlier. It will be preferable if the proposed amendment in the
relevant laws is made in consultation with the Central Government in the Ministries of Law, Education and
Interior.

Notwithstanding the directions to be followed by the Advocate General this would not exclude an individual
party, in the matter to bring it before the Supreme Court for appropriate orders under Article 184 (3) of the
Constitution as soon as it is possible; and the office shall mutates mutandis follow the same procedure as
already provided with regard to the reference to be made by the Advocate-General.

The individual cases which have already been filed in the Supreme Court and/or are pending or may be tiled
in future shall be dealt with by the office under Article 184 (3) read with Article 190 of the Constitution as
already directed.

M. Farooq, Dy. A.-G. for Pakistan; M. Sardar Khan, A: G., N.-W.F.P., Irfan Qadir, Addl. A.-G., Punjab,
Raja M. Afsar, A.-G., Balochistan, Abdul Ghafoor Mangi, Addl. A.-G.,'Sindh.

S. Afzal Haider, Advocate Supreme Court, M. Bilal, Senior Advocate Supreme Court, Abdul Hakim Kundi,
Advocate Supreme Court Pakistan Bar Council.

M. Ismail Qureshi, Senior Advocate Supreme Court.

Dates of hearing: 6th to 10th March, 1993.

ORDER

MUHAMMAD AFZAL ZULLAH, CJ--In the matter of students cases, apart from having passed certain
final orders like those relating to the utilization of their presence for ceremonies and labour exacting purposes
un connected with their educational activities/atmosphere, we had left two important subjects to be examined
further and had passed the following interim orders in respect thereof:

"After hearing these cases relating to malpractices in Educational system, we have decided to pass an interim
order as Ist step.

It needs to be mentioned that Mr. Muhammad Nawaz Marri, Vice Chairman Pakistan Bar Council, during his
arguments stated that Mr. Muhammad Khan Raesani, who is V.C. of Balochistan University, was at the
relevant time Principal of the Law College, introduced an undertaking in his discipline. It was that the
students "indulging in politics" were bound to be expelled from the institution. The detail of that procedure is
not available/relevant at the present stage. The fact remains, however, that according to Mr. Nawaz Marri,
A.S.C. who himself remained for some time A.A: G. Balochistan and Raja M. Afsar. A: G., Baluchistan, who
is also assisting this Court certified that this experiment was successful.

(a) We, therefore, hereby direct that at the time of admission to an educational institution, the student and his
parents/guardian shall give an undertaking that the student shall not "indulge in politics"; failing which, he
shall not be allowed admission. And if, after the admission, he violates such undertaking i.e. "indulges in

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politics", he shall be expelled from the institution without any further notice. All the Educational Institutions
shall henceforth seek and obtain similar undertakings in respect of all existing enrolled students, failing
which and or in contravention thereof, the results, shall mutatis mutandis ensue as above directed. It is
explained that the finding with regard to "indulgence in politics" given by the Head of Institution under his
seal and signature shall be final and shall not be questioned except only before the Supreme Court.

(b) As soon as a reasonable complaint is received or reasonable suspicion is entertained by the Controller of
Examinations that a "malpractice" has been committed by any candidate or by any one else for his benefit; in
connection with any examination, he or she shall withhold the result of such candidate and shall hold inquiry
into the "mal practice". In case, the result is declared, which is favourable to the candidate, the result together
with entire proceedings shall be forwarded to the A.-G. of concerned province; who shall take such steps and
measures as may be appropriate. Such measures shall also include a reference to Supreme Court for orders.

Judgment reserved for final orders."

The purpose of starting with interim measures was to gain more knowledge and experience as well as feed
back on measure like this. Enough material has so far been collected in so far as the subject of "indulgence in
politics" is concerned and the Court is in a position to pass a final order which of course keeping in view the
nature of the subject-matter, will have to be kept under review from time to time by the Supreme Court.

We have had the benefit of the views of the individual students, some of their organizations, the teachers and
the heads of the institutions. It is not necessary to give the entire list thereof. Certain basis can now be
assumed for deciding this matter. Amongst others they are:--

The interim order prohibiting "indulgence in politics" by the students community has not only been supported
but also insisted upon by an extraordinary large sector of the society in all its manifestation. The students also
are not against the principle underlying the interim order but have sought certain clarifications and/or have
suggested further improvements that of course is a commendable trend. Accordingly, we have no reason to
withdraw the interim order already passed nor there is any compulsion for making any major change therein.
However, experience in one or two cases has shown that the expression in the interim order "without any
further notice" has not been correctly understood. The use of word "further" signifies an assumption that
something has already been done. One aspect of course is the submission of the undertaking by the student
and his parent/guardian which indirectly contains a notice that if the undertaking is contravened the person
concerned would have to be dealt with in accordance with the said undertaking as well as what is clear from
the order passed by the Supreme Court. But these assumptions do not exclude the possibility of the person
concerned; namely, the student and/or parent/guardian availing the opportunity of making submission to the
authority concerned against the action visualised in the undertaking and the Supreme Court order. Even if it is
a case in which the dis obedience visualised in the undertaking and the defiance is in the very face of the
authortiy concerned and no more evidence like the contempt in face is needed for purpose of rendering a
finding of guilt; yet that would not, as our experience in the implementation of the interim order, has shown,
obviate still another possibility that the defaulting person might be able to convince the authority concerned
that he did certain act under unbearable coercion and thus seek mitigation and similarly the principles of
Tauba and Afw as applied in the case of Shah Alam Khan v. Agricultural University, Peshawar (Constitution
Petition No.2 of 1993, decided on 10th February: 1993 PLD 1993: SC 297) might be pressed into service as
was done in the said case and as a result thereof neither the students nor the institution might suffer any
permanent damage. The expression "without any further notice" therefore, will have to be read in the above
explained context. It may not be prior notice and about opportunity it can be as soon after as may be possible

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in accordance with the, facts and circumstances of the case. It has further to be elaborated in the same context
that although in the interim order the initial findings of fact were left with the authority within the campus, it
was assumed that in cases of contest by denial of the "indulgence in politics" the minimum requirement of
defence as already held by this Court in University of Dacca v. Zakir Ahmad (PLD 1965 SC 90) shall have to
be followed. See also a recent case Nadim Khan v. The Board of Intermediate and Secondary Education
Peshawar: PLD 1993 SC 397 of malpractice in the examination where complaint was made that fair
opportunity of defence as visualised in Zakir Ahmad's case, was not afforded to the student, the Supreme
Court acting under Article 184 (3) of the Constitution while not approving the action taken by a Civil Judge
directed the institution concerned to do the needful with regard to the fair opportunity within shortest possible
time. As a result whereof the Supreme Court was able to decide the matter within few weeks which normally
in ordinary cases coming through all the usual channels takes years.

The finding in order to be placed before the Supreme Court has to be an honest, fair and should pass the test
of reasonableness. The minimum opportunity of defence is also sine qua non for such a finding; namely,
making the person aware of the accusation and confronting him with the material with a view to offer
explanation; though it is emphasized that full-fledged trial like one under the Civil and Criminal Procedure
Codes, as held by this Court in several other cases, is not at all required. The technicalities and formalities
which are often pressed into service in such trials are to be avoided and simpler procedure for deciding the
matters within hours and days and not in weeks shall have to be adopted. The fact that the Supreme Court
itself shall scrutinize the findings if brought before it should remain a reminder to the authorities concerned
that when the orders are under scrutiny by the Courts those who passed them are also under similar scrutiny.

It has been brought to our notice that the office-bearers of the Union and other Union members by virtue of
certain provisions in the relevant laws are made the members of the governing bodies of educational
institutions like Syndicate, Senate etc. Not only this they are also made members of certain Committees. The
dignity of the teachers, the institution and the majority of students community has been severely adversely
affected, besides infringement of several other fundamental rights including those relating to movement,
expression, speech, freedom of assembly and above all the dignity of the teachers and a large majority of the
students gets violated in one or the other set of circumstances. The example can be multiplied many times.
There is no, need for any further discussion on this subject. Those who appeared before us were of
unanimouns view that this practice caused considerable damage to the institutional authority as well as
management. We, therefore, while restoring legitimate students group/unions activity, prohibit the association
of the group and union members with organizational set-up of the educational institution, in any form
whatsoever. However, the students, the members of the F groups/unions and their office-bearers will
continue to be at liberty to bring their grievances, proposals, suggestions and other measures for improvement
of their educational life and stay in the campus, to the functionaries who are made incharge of the students
affairs as also after the needful is done in this behalf, to make application to the head of the institution. The
head of the institution shall take prompt action but if he is brought under coercion by any means or by any
other undignified act he will not be obliged to take any immediate action. Indeed he shall, as his duty,
examine the matter as and when free from coercion and pressure, and decide it in accordance with the
dictates of justice, fairplay and in accord with the parental jurisdiction of sympathy and compassion.
Following a refusal to redress if a question is certified as vital by the head of the students affairs and by the
head of the institution or by a unanimous decision by the executive of the group or union the matter may then
be brought before the Supreme Court under Article 184 (3) of the Constitution, for appropriate orders.

Before passing on to the next subject it needs to be clarified that as held by this Court in the case of Darshan
Masih v. The State (PLD 1990 SC 513) and reiterated in several judgments the dispensation under Article

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184 (3) of the Constitution for the enforcement of fundamental rights by the Supreme Court is a very special
provision in the Constitution. See also CA-1412 to 1428/90, Government of Balochistan v. lzizullah Memon,
decided on 10-4-1993: PLD 1993 SC 341. When the condition that a fundamental right is being enforced is
satisfied then the only limit on the power of the Supreme Court to pass orders is that they should be
appropriate. There is no doubt in the present case that while the right to liberty and freedom of expression,
undoubtedly are themselves fundamental rights but they do not extend to the taking away of the similar rights
of the others. We are satisfied that those who "indulge in politics" in the educational institutions being a very
small minority violate several fundamental rights of a vast majority of the students, their parents and
guardians, besides of those who are otherwise directly or indirectly linked or connected therewith. The
Supreme Court was compelled to pass the interim order which having stood the test of scrutiny and
experiment for a considerable time it is now being confirmed with of course such modifications, clarifications
omissions or additions as may appear in the present order.

The expression used in the order "indulgence in politics" also came under considerable discussion. The
educational institutions have ' mostly correctly understood its import. The Government and its institutions
and functionaries dealing with the subject of education by and large correctly understood it. The word
"politics" also speaks a lot as against mere political science or a political activity. But by itself it undoubtedly
can give rise to mis understanding. An exercise in debating certain issues of political science even if they are
not of general character but relate to the special conditions of the country introduced as a subject for debate
by a group of students for the students only may not be described as "politics" as the word is used in the
order; but the essential qualification or for that matter the definition is supplied by the word
"indulgence"---With that part of its connotation, which every body understands as a bad one. We do agree
that it will depend upon the level of the institution, the locality where it is situate, the population and its
culture from where the majority of the students community are inducted in the institution. That is why we left
the determination of the basic findings to the institution concerned. It will be necessary to keep all these
aspects in view when giving a finding regarding "indulgence in politics". Cases have come to our notice
where with some difference of facts or shade of activity an act may not be treated as "indulgence in politics"
in certain institution of a Province or a region of Pakistan, but in another situation, it was so treated. The
experience, wisdom, intellectual and scholarly attainment combined with compassion of the institutional
set-up, will be able to control, define or discern "indulgence in politics" in an institution and in its own
environs. While dealing with such matters in the Supreme Court we have found that the institutional set-up is
by and large handling the matters in a fair manner. We hope and expect that there would be very rare
exceptions in this behalf and when brought to the notice of this Court. Particularly if the action is tainted with
mala fides it will rectify the wrong very firmly; amongst others so as. to keep the stream of justice unsullied
by such like undesirable deviations.

This directly leads us to the question of banning unions in the educational institutions. A lot has been said and
written on this subject. We had intentionally avoided the "banning/prohibition of the Unions" activities in the
interim order. The question was left open as it had direct connection with the "indulgence" or otherwise "in
politics." It is well known that by law the Unions were banned. The results we were told by experts as well as
by the Students community, were not what were initially intended. The revival of the Unions notwithstanding
the conditions, have not improved the situation. One view is that the periodic elections for the formation of
the Unions not having been arranged this organization has not yet been able to deliver its beneficial results
neither for the students nor for the institutions. The other view is that it is on account of the un-elected
Unions or groups of students and their activities which have made the elections hazarduous if not impossible
in a large number of institutions. The reality might be somewhere in the middle. We have been told that in a
very prestigeous and probably one of the highest in the cosmopolitan city, the so-called head of the Union

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has not only an armed body guard for himself but also enjoys such facilities which are not even available to
some heads of the institutions. These facilities what we were told can only be imagined in matter of authority
and prestige both. In such atmosphere it is not possible to hold fair and free elections for the Unions.
Undoubtedly commissions and other investigatory efforts have been made to further explore the possibility in
this field. One view is that tire Unions should again be banned the other is that classical structure of the
Unions in educational institution should be changed. The Law Commission of Pakistan is also making an
exercise in this field. A very prestigeous Commission appointed for the purpose of eradication of malpractice,
in its report published recently has also expressed strong opinion about the institution of Unions. While this
exercise should continue for better ideas and management we cannot wait to see the final. decision or results
thereof. As we did not visualise in the interim order total prohibition of Union activities in the educational
institution; after hearing all the concerned including Vice-Chancellors of some Universities, we feel satisfied
that in the meanwhile, classical Union activities, exclusively relatable to the educational needs, directly
relatable to the campus, could be permissible. Such educational needs, of course, would include general
education also through extra-curricular activity. We are not directing the formal formation of the classical
"Union". Instead it should, as is the pith and substance of the present exercise, be also left to each institution;
which, keeping in view its own circumstances should devise and name it; as also its purposes, procedure,
practices, ideas, aims, standards, moral and otherwise; for formation of students groups under appropriate
umbrella. This all will have to be carved deftly by the institution itself. It may not necessarily be treated and
named as Union. Such groups would keep a low key activity of course under the guidance and umbrella of
the institution concerned which if do not have already raised a department of students affairs, should
immediately create such department. The senior teachers and guides should be associated directly with the
students activity particularly those who are experts in exercising parental jurisdiction as has been spelled out
by this Court in several judgments; with more compassion than authority.

One delicate aspect of the so-called union activity has been high lighted by the Jamiat-e-Tulba in its written
submissions. It indeed needs very deep thought. They claim that it is necessary even in the educational
institutions to develop such organizations of students which should keep the students community on the
ideological lines ordained for and chosen by the people of Pakistan. Although they have not said so but we
can equate such a roach with what is enshrined in Objectives Resolution which forms an important operative
part of the Constitution. The aim and theoretical assumptions are undoubtedly laudible. But the experience
has shown that even if the objective was laudable it has not been achieved to the extent and manner our
society could absorb it. There is another and more important aspect of the same matter. It is not the students
organization which is, primarily responsible for the observance of the ideological basis of Pakistan in the
educational institutions; rather the institution and its functionaries are not only responsible primarily but
always responsible in this behalf. A functionary in a Pakistan institution who is against the ideological basis
of Pakistan, as is enshrined in our Constitutional set-up; or is against the training of his wards entrusted by
the institution to him in line with it; is against or neglects and does not propagate ideology of Pakistan,
amongst the students community, has no right to remain in the institution. And if the institution itself
-commits such acts or omissions, it is better to close, rather than to permit it, to contravene the Constitutional
set-up of Pakistan. Therefore, it will be more advisable to re -entrust the education and training of the
students on the lines of the ideology of Pakistan to the teachers and the institutions themselves under the pain
of penalty. This of course is with a clarification that the groups under whatever name, through which the
so-called Union activity will be revived in the educational institution, would not be debarred from the
ideological path and educating and training themselves in that behalf; but only with the assistance, guidance
and help from their parents, their teachers and institutions. No one student or group can be given an unbridal
right to control and coerce another student or group. The parental atmosphere jurisdiction and philosophy has
to be followed on this subject also.

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The argument advanced by the Jamiat; which has been dealt with above is not only relevant; but is also
important in another context of practical application in Pakistan. It is also in line with the whole gamut of our
statecraft. Its features are spread over several parts of our Constitution and the entire Constitutional set-up
can be very useful for future ideological orientation in our polity. Thus the possibility of creating a mid-way,
political party structure as some youth wings are, cannot be excluded altogether. But instead of riding the
wings of educational institutions or flying under the wings of the student community; the politically
oriented/minded youth after completing the education and/or training in the institutional atmosphere, may
join those youth wings of the like minded political parties. Those who arc imbued with national service and
we do feel that entry in political life is also a national service, might be able to developed such a youth
political set-up, which would obviate the "indulgence in politics" in the educational institutions.

Such experiment can be faithfully and honestly undertaken by educated young people, fresh from the
Universities who are full of life and vigour with national spirit, might join the profession of politics in the
form of apprentices or make junior political parties. If such intermediary system develops, the linkage with
senior parties and senior politicians would automatically start developing. And without any "indulgence in
politics" in the educational institutions, final stage students community also, might start looking towards the
intermediary political organizations in the country. This possibility cannot and should not be treated as a
verdict by this Court. It is only a possibility which amongst many others can be visualised as to how those
young people who have clearly and cleanly passed their allotted time in the educational institutions and want
to improve the society through their participation in the political life of the country, might start a beginning
with an organizational set-up like the one at the youth wing stage. But this set-up if develops will also have
to be kept out of the educational institutions. They would not be provided facilities in these easy to reap,
fields.

In this connection it needs to be mentioned that an example was cited from great Britain where in some
educational institutions there are students organizations which work under the name and wings of political
parties. We arc afraid, it is not possible in the present conditions of Pakistan to follow that example. If at all it
has any value in England, as held above, it does not fit in our Constitutional set-up. This subject can safely
be closed with the simple observation that we cannot afford it. There are innumerable differentiating factors
between the two countries. On the contrary in this behalf we have been encouraged by some of the
submissions made by the Jamiat itself on this very issue. After making mention of the said students
organizations/parties in great Britain, the concrete submission made to the Court is in the following
words:--.

This practical support for the view taken by this Court in the present case besides being encouraging is not
only courageous but laudable. However, we do nor agree with the view expressed in the sentence next
following which reads:

If they think as our culture and religion both emphasize that we in the Court are not only well wishers of the
students community but are also their elders and by virtue of office as well as customary regard, hold a
parental position, we do not treat it as a myth. Insha Allah, with the assistance of the students community
which has by overwhelming majority supported the Court action, the students community and through them
the nation would benefit from these measures. Despite these realities and acting on these assumptions "we
have taken the decision to keep the doors of wisdom and experience open and to further keep up the
possibility of, as already indicated, bringing under review these orders in individual cases which will be
coming to the Supreme Court against the decisions of the institutions. As experience is gained on all sides the

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evolution in the juridical dispensation will also take place. We would like to close this discussion on general
questions, on a hope and encouraging note by quoting a commendable submission made by the Jamiat which
has by and large agreed with the principles, purpose and objects underlying our action. In the end of their
submissions in para. after commenting upon the performance of some other functionaries and institutions
who have to deal with the students community in para. 6.05 the following assessment is worth noticing.

We while unable to disagree with the general assessment made in the above-quoted realization, further quote
with appreciation the following resolve and support to the Court:

We with the above-quoted support have come to a conclusion not different from what has already been
demonstrated in the hearing proceedings in this Court for several days. We however cannot assume the
extraordinary intention which someone might infer that some person or group would for himself, decide the
above questions by denying the Constitutional set-up and the entire legal system of Pakistan which
undoubtedly includes the Qur'an and Sunnah, justice and Adl (Adl encompasses in Islam much more than
justice in Western jurisprudence), Constitution and the Law. Hence, a somewhat concealed but perhaps an
unintended assumption contained in paragraph 5.7 of the written submissions might run counter to those
submissions which we have praised as laudable. 1t is to the effect that the Supreme Court should not disturb
the status duo; otherwise ....

If this is the assessment regarding Court's position, none can subscribe to it. Someone might call it a threat to
the Court's structure. Leaving aside the other students organizations ands students, the Jamiat itself in the
submissions already discussed, has at present no such intentions; nor its organizational set up. Nor those who
constitute the set up. May be that intention is not what we mentioned and is a different one
implying/involving a possible mis interpretation. If it is something otherwise, we still would like to remain in
the parental domain and would exercise it as jurisdiction.

In the light of the foregoing discussion we confirm the interim order passed on 1st July, 1992 with regard to
the "indulgence in politics" by the students community with the direction that arrangements shall be made as
Bonn as possible and not later than a month to take steps for developing, restoring or re-organizing a healthy
students discussion and other activity in any form suitable to the individual institutions which might be called
by any description; regarding which arrangements for election shall also be made. If any difficulty arises in
the implementation of this direction, matter shall be placed before the Advocate-General concerned who will
place it before the Supreme Court as soon as possible for further orders, in the particular cases so brought up
before the Supreme Court, and/or further directions under Article 184 (3) of the Constitution.

The other subject dealt in the said interim order concerns the examinations. The experience and general
public comment on the subject of malpractices, conduct and other affairs relating to the examinations is not
yet conclusive and has not yet reached that satisfaction by virtue of which we can pass an order having
finality as in the subject-matter already dealt with above. A considerable exercise in research; like the one
made by, the "Commission on evaluation of examination, malpractice and eradication of malpractice", some
papers submitted to the Court; and considerable material having been published in the media and otherwise, it
is hoped will bring about the desired results. We, therefore, instead of confirming our interim order relating to
the examination, pass the following order in modification thereof which will remain in operation only till
further orders.

A case of malpractice decided by the competent authority if it results in any punishment, shall after it goes
through the institutional appeal set-up, be placed before the Advocate-General of the Province concerned

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within three days of the final decision by the final authority in the institution; who shall within a week
scrutinize it and refer the matter to the Supreme Court under Article 184 (3) of the Constitution with his
detailed report and comments. He and all other executive and judicial authorities in this behalf shall act in aid
of the Supreme Court under Article 190 of the Constitution. The office of the Supreme Court shall place the
case before learned Judges in chambers for processing within a week of the receipt of the reference from the
Advocate General for any order that may be considered "appropriate" and action under Article 184 (3) of the
Constitution. Regarding the cases of a malpractice in r which the accused is exonerated by institution it will
be optional for the Advocate-General to seek information from the institution concerned on a complaint or
other information received in that behalf in any manner whatsoever. And if he finds at a State representative
that the exoneration is improper (and not merely wrong on technical grounds) he shall similarly make a
reference to the Supreme Court with Iris commons/report and action proposed by him. Lastly, in this behalf
the Government concerned might examine in the meanwhile the advisability of empowering certain
authorities at certain high level, conducting the examinations to arrest any person concerned with the relevant
examination on a prima facie material showing commission of malpractice which is also urn offence under
the law and to put up a report like the one under section 173, Cr.P.C. before a Court of competent
jurisdiction,; alongwith the accused concerned as soon as after the arrest as, possible. And the Court
concerned to commence the trial as soon after the submission of the report as possible but not later than seven
days or within two days of the conclusion of examination whichever is earlier. It will be preferable if the
proposed amendment in the relevant laws is made in consultation with the Central Government in the
Ministries of Law, Education and Interior.

Notwithstanding the directions to be followed by the Advocate General this would not exclude an individual
party, in the matter to bring it before the Supreme Court for appropriate orders under Article 184 (3) of the
Constitution as soon as it is possible; and the office shall mutatis mutandis follow the same procedure as
already provided with regard to the reference to be made by the Advocate-General.

With the foregoing orders, observations and directions on the two subjects involved in this case the matter
now stands disposed of.

The individual cases which have already been filed in this Court and/or are pending or may be filed in future
shall be dealt with by the office under Article 184 (3) read with Article 190 of the Constitution as already
directed.

M.B.A./H-164/S Order accordingly.

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