Original Jurisdiction of Supreme Court

184. (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments.

Explanation.—In this clause, “Governments” means the Federal Government and the Provincial Governments.

(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgements only.

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.

Language of art 184 (3) is open ended

The article does not say as to who shall have the right to move the Supreme Court (SC) nor does it say by what proceedings the SC may be so moved or whether it is confined to the enforcement of fundamental rights of an individual which are violated or extends to the enforcement of the rights of a group or class of persons whose rights are violate.

Maintainability of the petition

Constitutional petition under art 184(3) can be maintained subject to establishing by the petitioner that question of public importance with reference to the enforcement of fundamental rights has been made…. Maintainability of the petition under the art is to be examined by the court not on the basis of who filed the same but if the controversy involves a question of public importance with reference to the enforcement of fundamental right, the petition will be sustainable.   (PLD 2006 SC 394 (c))

Public Interest litigation

Public interest litigation is not enforcing right of one individual against another as happens in case of ordinary litigation, rather such litigation is intended to promote and vindicate interest involving violation of Constitutional or legal rights of large number of people, who are poorer, ignorant or in socially or economically disadvantageous position.    (PLD 2002 Kar 359 (b))  

Violation of Constitutional and fundamental rights in circumstances which raise serious questions regarding the effectiveness of and availability of safeguards (for the fundamental rights) must be regarded as matter of great public importance.   

(PLD 2001 SC 549 (e))

Word “dispute” in art 184

Word dispute in art 184 is wide enough to include all the disputes, jurisdictional, administrative and fiscal.

It was contended that Peoples Work Program concentrating mainly on Education, Health and Sanitation, Water Supply and Rural Roads did not fall within the jurisdiction of the federal government. Because, it was further contended that, under the Constitution Executive authority of the Federal Government extends only to such matters as enumerated in the Federal Legislative List and or the Concurrent Legislative List in respect whereof the Parliament was empowered to make laws (art 97). It was further contended that none of the aforementioned components of the program was included in either of the two lists contained in Fourth Schedule of the Constitution, therefore, theses components fall within the ambit of Provincial Government and the launching of the program by the Federal Government was ultra vires of the Constitution. (art 142 (c))

It was held that grievance agitated by the petitioner essentially raised a dispute of the nature envisaged in art 184 of the Constitution i.e. dispute between the Federal Government on one hand and the Provincial Governments on the other. Such a dispute is determinable by the Supreme Court of Pakistan which has exclusive jurisdiction under art 184. (1989 CLC 1387)       

The Supreme Court has exclusive jurisdiction in inter governmental disputes The provision is based on the principle that all disputes, whether of law or fact, must be determined by the SC if the parties to the disputes happen to be Federal Government and, or, Provincial Governments, it is in the highest degree undesirable that the Federation and Provinces should be fighting out their battles in the subordinate courts like common litigants.        (PLD 1956 FC 72)

Dispute as to ownership of land between Pakistan Railways and Karachi Development Authority

Dispute between as to land ownership between Pakistan Railways and KDA could not be treated a dispute between the Federal Government and Provincial Government because the KDA being a local authority and separate from Provincial Government was not a Department of the Government. Provisions of Art 184 could not be attracted. (PLD 1986 Kar 130)                             

Declaratory Judgments

As contained in clause (2) of art 184, in the exercise of this jurisdiction, the Court can pronounce only declaratory judgments and not an order or decree that is executable under art 187. This shows that such disputes are to be brought before the Court for its opinion and determination of rights and liabilities. However, during the hearing executable orders such as order for production of documents, attendances of witnesses, etc may be passed.

Analysis of art 184(3)

SC can exercise its powers to issue the writ only when element of ‘public importance’ is involved while art 199(1)(c) has a wider scope as there is no such limitation.

Trappings of art 199 (1)(a) and (c) need not be read into art 184(3). Exercise of power of SC u/art 184(3) is not dependent only at the instance of the ‘aggrieved party’ in the context of adversary proceeding. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by the person acting bona fide. Provisions of art 184(3) have provided abundant scope for the enforcement of the Fundamental Rights of individual or group or class of persons in the event of their violation and it would be for the SC to lay down contours generally in order to regulate the proceedings of group or class actions from case to case.

The opening words ‘without prejudice’ in art 184(3) mean only not affecting, saving or excepting and the expression ‘without prejudice to the provisions in art 199’ means no more than to save the provisions of art 199 without, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to enforcement of Fundamental Rights. The aim of art 184(3) is to leave the power of High Court intact. It is for the party which is affected to choose which of the two forums it wishes to invoke, and if it be the SC then the power exercisable is subject to the limitation of art 184(3) i.e. the element of public importance must be involved in the enforcement of Fundamental Rights.

The impression that the opening of sub-clause 1(a) and (c) of art 199 be read into art 184 (3) appears to be without substance as there are no words in art 184(3) to incorporate them except the words “make an order of the nature in the said article”, which are specifically referable to the nature of order in sub-clause (c) of clause 1 of art 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. Therefore, it will not control or regulate, in any way, the exercise of power so as to make it exercisable only at the instance of the ‘aggrieved party’ in the context of adversary proceedings.

Violation of non-fundamental rights

Where grant of relief prayed for did not require enforcement of any of Fundamental Right mentioned in chapter 1 part of II, the petition was not maintainable under article 184(3) (PLD 1994 SC 621, NLR 1994 SCJ 612). Therefore, violation of art 4 and 5 which do not fall in chapter 1 of part II containing Fundamental Rights would not attract the exercise of jurisdiction by SC u/art 184(3).  (1995 SCMR 202)

Relief may not be granted

When the condition, that a fundamental right is being enforced, is justified then the only limit on the power of the SC to pass order is that the order should be ‘appropriate’. (1993 SCMR 1781)

So the Court may decline relief if its grant, instead of advancing the cause of justice, would perpetuate injustice or where the Court feels that it would not be just and proper.   (PLD 1993 SC 473 –PLJ 1993 SC 438)

Ismail Qureshi and Others V. M Owais Qasim Secretary General of Islamic-e-Jamit Talaba 1993 SCMR 1781)

Court held 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 court even directed 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. The court noticed that 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.

Enforcement of Fundamental Rights through Order or declaratory judgments?

If a question of public importance relating to the enforcement of Fundamental Rights is involved the SC may make an order of nature mentioned in art 199. The restriction of passing declaratory judgments is confined to clause (1) of art 184.

Give your valuable feedback about this post in the comment section below, please.

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