A few weeks ago students across Pakistan staged demonstrations in various parts of the country to ask for their rights. One of the chief demands of the Student Solidarity March was the restoration of student unions in the country. Clearly the march gained some traction with the prime minister himself tweeting about student unions, and the Sindh cabinet recently approving a proposed bill regarding student unions in the province. Yet, as preparations are underway to introduce the bill in the Sindh assembly, it is worth exploring the legal basis on which student union activity was prohibited in the first place.

Student unions were first banned in Pakistan in 1984 through a martial law order during the Zia era. In 1989, during the Pakistan Peoples Party (PPP) government, student unions were restored through an Act repealing the relevant martial law order. Yet, four years later came a judgment of the Supreme Court of Pakistan in the case of M Ismail Qureshi and others versus M Awais Qasim, secretary general of the Islami Jamiat-i-Talaba (IJT), Pakistan (1993 SCMR 1781).

Through the judgment, the Supreme Court of Pakistan placed certain restrictions on union activities. Chief among such restrictions was a requirement that students be required to sign an affidavit that they would not “indulge in politics”. A violation of this affidavit or undertaking could result in the expulsion of the students concerned. Similarly, the representation of students on the governance bodies of educational institutions (e.g. the syndicate etc) was prohibited. The effect of this judgment has been that although, in theory, student unions are not banned in the country, their functioning and existence has been completely stymied.

Article 17 of the Constitution of Pakistan guarantees its citizens the right to form associations or unions subject to “reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality”. Therefore, for a restriction on the right to be constitutional, it must meet the following three requirements: firstly, it must be reasonable; secondly, it must be imposed by law; and thirdly, it must be in the interest of either the sovereignty or integrity of Pakistan, or public order, or morality.

The judgment of the Supreme Court is extraordinary in its refusal to engage with the above requirements. In fact, it dismisses the argument entirely by saying that while the rights to liberty and freedom of expression are fundamental, they do not extend to taking away of similar rights of others such as students, teachers, and parents. The court goes on to say that those who “indulge in politics” in educational institutions are taking away such rights of these other stakeholders.

With respect, this analysis must be considered wholly unsatisfactory. First, it does not acknowledge that the rights in question were not only those of liberty and expression, but also that of association. Second, it ignores that the constitution prescribes a particular test for a curtailment of that right, and the court cannot ignore that test while supplying its own. Thirdly, it is not at all clear what about an indulgence in politics per se violates the rights of the other students or teachers.

It is quite clear that the court was concerned at the time with the increased tendency of violence in educational institutions and the weaponisation of these entities. This concern is obviously legitimate and would clearly constitute the interest of “public order” as envisioned in Article 17. Yet, in issuing its orders, the court deprived the political and legislative organs of the state in crafting a response to the problem through the enactment of a law which would have satisfied the second requirement of Article 17.

It is also important to consider whether, in the face of violence and weaponisation, it was a “reasonable” restriction to place a blanket ban on all politics within unions. Unsanctioned violence is a fact of life in many spheres – indeed political parties are often accused of being violent – yet nobody argues that a serious and reasonable response to that problem is to ban all politics. In conflating politics with violence and violation of human rights, the court makes a serious presumption. It is a presumption that is problematic because the Constitution itself also grants the right to participate in politics in the same Article 17.

The court satisfies itself about the reasonable nature of its prohibition by relying on the fact that it had received generally positive feedback on its proposed measures when implemented in the interim. Yet, fundamental rights exist to protect ‘the few’ from the majoritarian tendencies of ‘the many’. For a court to rely on the approval of the majority to curtail the rights of the few is to upset that cardinal principle.

Nobody would seriously suggest that educational institutions should return to being in the throes of violence and weapons but it seems obvious that the restrictions imposed by the Supreme Court, now having been in place for well over a quarter of a century, have swung the pendulum too far in the other direction.

In 1993, the court had stated that keeping in view the “nature of the subject matter” the final orders passed would have to be kept “under review from time to time by the Supreme Court”. Perhaps that time has now come.

The author is a lawyer and partner at Axis Law Chambers. He can be reached on email at skhosa.rma@gmail.com and on Twitter at @sameerkhosa