Case Commentary: Ismail Qureshi v. Awais Qasim (1993 SCMR 1781)
In 1993, the Supreme Court of Pakistan, in the case M. Ismail Qureshi and others v. M. Awais Qasim, Secretary General, Islami Jamiat Tulba, Pak, and three others,[1] prohibited students from engaging in political activities. The ruling required students to sign affidavits pledging to abstain from politics as a condition for university admission. This decision effectively silenced student political voices, a silence that persists in educational institutions over thirty years later.
The Ismail Qureshi case came against the backdrop of the volatile law and order situation in the country. The ’90s in Pakistan were filled with instances of ethnic conflicts between student groups that resulted in a deteriorating law and order situation in the country. This prompted the principal of Balochistan’s Law College to introduce the aforementioned affidavit compelling students to abstain from political activities. When the court deliberated on the matter, it extended this affidavit to universities across Pakistan, first through an interim order in 1992, making it final in 1993. The ban on politics also meant a ban on forming and running student unions because of their inherent political nature.
The court justified its decision by asserting that while liberty and freedom of expression are fundamental rights, they do not extend to infringing upon the similar rights of others, including students, teachers and parents. However, the court failed to consider that “indulgence in politics” per se does not impede others’ rights and that not all students involved in politics are violent. More importantly, the court failed to consider the centrality of Article 17 (1) of the Constitution. The right to association and form unions provided in this Article can only be restricted if the restriction is:
- reasonable;
- imposed by law; and
- in the interest of the sovereignty or integrity of Pakistan, public order, or morality.
However, not all these conditions were fulfilled when the prohibition was enacted. First, the said prohibition must be imposed by “law,” and the Supreme Court, lacking legislative powers, could not have done so.
Second, a blanket ban on student politics (unions) to curb violence and weaponization of students is unreasonable. In DG Cement Company v. Federation of Pakistan,[2] Justice Mansoor Ali Shah argued that any restriction of human rights not only needed a constitutionally valid reason but also had to be proportional to the rank and importance of the right at stake. While defining proportionality, he relied on Ahron Barak’s Proportionality Constitutional Rights and Their Limitations.[3] Professor Barak argues that proportionality in law entails four key elements:
- proper purpose;
- rational connection;
- necessary means; and
- balanced outcomes between the benefits gained and the harm caused to constitutional rights.
Proper purpose aligns with societal values, particularly democratic principles, as outlined in our Constitution. Rational connection requires that the means used by laws fit the intended purpose. The necessity test demands selecting the least restrictive means to advance the law’s purpose while minimizing infringement on human rights.
The last component of proportionality, known as “proportionality stricto sensu,” involves balancing the benefits gained by the public against the restrictions imposed on constitutional rights due to the means selected by law to achieve the proper purpose. The last component is more quantitative and implies that the utility of restricting constitutional rights must not be disproportionate to the benefits enjoyed by citizens without such restriction.
In the Ismail Qureshi case, the court only fulfills the first component – minimizing violence, which is a proper purpose. However, there is no rational connection between student indulgence in politics and lesser violence. Student politics fosters ideological organization, encouraging debate, dialogue and competition. It cultivates skills in handling success and failure, promoting tolerance and collaboration. Incidents like the lynching of Mashal Khan suggest a lack of political awareness and training. Similarly, critics argue that violence has risen post-ban on student politics, showcasing the absence of a rational connection between the means utilized and the results intended in the apex court’s decision. Additionally, a blanket ban does not qualify as a minimal restriction because the court could have framed the affidavit such that students were to refrain from violence, not politics. Finally, the punishment of all students for acts committed by some of them is visibly disproportionate, violating the principle of “proportionality stricto sensu.”
Justice A.R. Cornelius, in M/s East and West Steamship Company v. Pakistan and others,[4] provided two key components of a reasonable restraint:
- first, it must not impose an excessive burden on the subject; and
- second, it should represent the minimum necessary measure to safeguard public interest.
As noted earlier, the affidavit under question fails on both counts: it imposes an undue burden on the subject and does not constitute the minimum requirement to uphold public interest, as it resorts to collective punishment.
The court justified its prohibition by pointing to the overall positive response received during the interim implementation of its proposed measures. Even if it is taken for granted that most of the stakeholders involved—including parents, faculty and students—appreciate the ban, the essence of fundamental rights lies in safeguarding the rights of individuals against the potential dominance of the majority. When a court relies on majority approval to restrict the rights of a minority, it undermines this essential principle.
Finally, the court asserted that keeping in view the “nature of the subject matter….we have taken the decision to keep the doors of wisdom and experience open,” and the final orders “passed (in individual cases) would have to be kept “under review from time to time” by the Supreme Court.” Here, the court alluded to the implication that the prohibition was temporary and that it might reconsider its decision in the future. Given that the pretext for the ban, i.e. violence, has only intensified over the years, it is the right time for the court to rectify its error and give the students back their fundamental right to association.
References
[1] 1993 SCMR 1707
[2] PLD 2013 Lahore 693
[3] A. Barak, Proportionality (Cambridge) p.
[4] PLD 1958 SC (Pak) 41
An earlier version of this article appeared in The Friday Times. Published here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
