Case Summary & Legal Holding

This judicial decision was delivered by the Lahore High Court on 2024-01-26. The matter involves proceedings between Kashif Law Book House and Federation of Pakistan & others, officially reported as 2025 PLD 311. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Shahid Karim Title: Kashif Law Book House vs Federation of Pakistan & others Case No.: W.P No.34660 of 2020 Date of Judgment:2024-01-26 Reported As: 2024 LHC 254, PLD 2025 Lahore 311 Result: Petition Disposed of

JUDGMENT

JUDGMENT Shahid Karim, J:-. This constitutional petition seeks the following relief: "In the view of foregoing, it is respectfully prayed that this Hon'ble Court may be graciously pleased to allow this petition in the following terms: i. Declare that: a. To the extent of books and journals, the Impugned S.R.O. No.927(I)/2019, dated 09.08.2019 is unconstitutional, void ab initio and ultra vires the Arts. 9, 18, 19 and 175(3) of the Constitution. b. The right to life includes the right to research, knowledge, access to books and journals (for learning comparative views and receiving ideas). c. The outright ban on import of books and journals is not a reasonable restriction on the freedom of trade and press. d. The Federal Government has infringed the independence of the judiciary, access to justice and obstructed the administration of justice by prohibiting the import of law books and journals, which are frequently cited and relied upon by the learned members of the Bar and Bench in the ordinary course of their professional duties. ii. Alternatively, reading down the Impugned S.R.O. for being ambiguous, thus, not applicable to books and journals; iii. Grants costs of case; and iv. Grant such other relief as this Hon'ble Court may deem just and appropriate in all the facts and circumstances of the case." The Challenge:

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2. This judgment will also decide the connected petition W.P No.35962 of 2021 which too seeks similar relief and challenges paragraph 5 (2)(a) of the Import Policy Order, 2020 dated 25.09.2020. The only difference between the two petitions is that in W.P No.34660 of 2020, SRO 927(I)/2019 (impugned SRO) was issued on 09.08.2019 and which was to the following effect: "S.R.O. 927 (I)/2019.- In exercise of the powers conferred by sub-section (1) of section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950), the Federal Government is pleased to direct that following further amendments shall be made in the Import Policy Order, 2016, namely:- In the said Order, in paragraph 5, -- a) in sub-paragraph (A), in clause (ii), the following shall be substituted, namely:-- "(ii) goods of Indian or Israeli origin or imported from India or Israel;"; b) in sub-paragraph (B), clause (iii) shall be omitted." 3. The notification amended paragraph 5, sub-paragraph (A) clause (ii) and placed in the prohibition list the import of goods of Indian origin apart from goods of Israeli origin. This was done by amending SRO 345(I)/2016. The second amendment was deletion of para 5(B)(iii) and thereby removed goods of Indian origin or imported from India from the restriction list. In W.P No.35962 of 2021, the challenge is to the Import Policy Order, 2020 (2020 Order) which contained paragraph 5(2)(a) and imposed a ban on the import of goods of Indian origin. The 2020 Order repealed the 2016 Order and re-imposed the ban similar to the impugned SRO. Para 5(2)(a) (the Impugned Para) is sought to be declared ultra vires and unconstitutional. Thus, the issue in both the petitions converge on the same challenges regarding import of goods of Indian origin or imported from India. Background and arguments: 4. The learned counsel for the petitioners stated on the threshold that the petitioners are suppliers of law books and journals (foreign, local and self-published) to members of general public, Bar Associations and Superior and Inferior courts. The challenge is restricted to the extent of books and journals and prohibition of import of these books and journals of Indian origin. The Import Policy Order, 2016 added goods of Indian origin or imported from India in the prohibition list and removed goods of Indian origin from the restriction list. Priorly, in view of the restriction, the goods of Indian origin could be imported subject to certain restrictions. The Import Policy Order is issued under the Imports & Exports (Control) Act, 1950 ("the 1950 Act") which has been enacted by the Parliament to regulate imports and exports from Pakistan. The Federal Government is empowered under Section 3(1) of the 1950 Act to issue Orders to be published in the official gazette and the impugned Orders have been issued under these powers. To reiterate, initially only the goods of Israeli origin or imported from Israel formed part of paragraph 5(A)(ii) of the Import Policy Order, 2016 but later on through the impugned SRO and Para the goods from Indian origin were also included regarding which a complete prohibition was placed on their importation. The petitioners contend that due to imposition of ban on books and journals through the impugned notifications, the market is facing a severe shortage of law books and no importer or publisher is allowed to import research materials from India. It is submitted that the impugned ban has imposed a prohibition on the import of books and journals which is unreasonable restriction on a legitimate and lawful business. In a nub, the petitioners contend that the ban in question has caused severe shortage of foreign books and journals in the market. These books and law journals are heavily relied upon by Members of the Bar and the Bench in the ordinary course of their professional duties. The impugned action adversely affects the development of legal jurisprudence, quality of research, provision of legal education and is tantamount to obstructing the administration of justice. Relevant data has been produced by the learned counsel for the petitioners to bring home the fact that Indian reprints of foreign books imported from India are considerably cheaper to be imported as compared to their import from other countries like United States of America and United Kingdom. As an illustration, for the

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established treaties of constitutional law by Rotunda and Novak, the original price is US Dollars 989 whereas the Indian reprint can be obtained on considerably lesser price. The same is the case with All England Law Reports where a set has an original price of 1260 GPB whereas the Indian reprint has a price tag of 50,000/- INR. (These prices should vary currently and the difference may be considerably more at the present time). Legal framework: 5. Section 3 of the 1950 Act provides that: "3. POWERS TO PROHIBIT OR RESTRICT IMPORTS AND EXPORTS: (1) The Federal Govt. may, by an order published in the Official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import and export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected to the import or export of such goods and such order may provide for applications for licenses under this Act, the evidence to be attached with such applications, the grant, use, transfer, sale or cancellation of such licenses, and the term and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such order. (2) No goods of the specified description shall be imported or exported except in accordance with the conditions of a license to be issued by the Chief Controller or any other officer authorized in this behalf by the Federal Government. (3) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 16 of the Customs Act, 1969(IV of 1969), and all the provisions of that Act shall have effect accordingly. (4) Notwithstanding anything contained in the aforesaid Act the Federal Government may, by an Order published in the official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption or warehousing or shipment abroad of any imported goods or class of goods." 6. The provision set out above empowers the Federal Government by an order published in the official gazette and subject to such conditions and exceptions as may be made to prohibit, restrict or otherwise control the import and export of goods of any specified description or regulate generally all practices and procedure connected to the import or export of such goods. Further, such an order may provide for applications for licenses under this Act and the terms and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of. It is conceded that the matter relating to power to prohibit or restrict imports and exports is a policy matter within the domain of the executive branch of the government and it is a rarity indeed for the Courts to interfere in such matters. It is this rule of deference on the basis of which this Court will proceed to determine the issues engaged in these petitions. Another guiding pollstar for this Court is the scope of judicial review as expressed by Lord Brightman (UK Supreme Court) in Chief Constable v Evans (1982) All ER 141, 154 in the following terms: "Judicial Review is concerned not with the decision, but the decision-making process. Unless that restriction of the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power." 7. It is also a rule established by respectable authority that the discretion vesting in the Federal Government is to be exercised reasonably and rationally. The decision-maker cannot be left adrift on a sea of factors without guidance. It is undisputed that the first prohibition was placed by SRO 927 and since then there is no revision in the policy of the Federal Government to allow the goods of Indian origin to be imported from India. In fact, the prohibition has continued during the Import

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Policy Order, 2020. As explicated, any discretion vesting in the Federal Government cannot be exercised so as to impinge upon the rights guaranteed by the Constitution as also can be judged on other principles of public law such as rationality and reasonableness. 8. Indubitably, greater significance must attach to the words 'of goods of any specified description' as used in section 3 of 1950 Act. The true construction must be that this does not confer a sweeping power on the Federal Government to prohibit import or export of all goods from any country and the power lies merely to prohibit or restrict 'goods of any specified description'. As a matter of policy of the law, the Federal Government should only prohibit specified goods and simultaneously retain power to review the prohibition on a case to case basis. Both these connotations can be culled out from a reading of section 3 of the 1950 Act and the Impugned Para which provides in full, that: "(2) Import of the followings are banned, namely:- (a) goods of Indian or Israeli origin or imported from India or Israel: Provided that the provisions of this clause to the extent of India shall not apply to therapeutic products regulated by the Drug Regulatory Authority of Pakistan." 9. It can be seen that an exception was carved out and the provisions of the clause, to the extent of India, were not made applicable to therapeutic products regulated by the Drug Regulatory Authority of Pakistan. Thus it was felt by policy-makers that a complete ban was not conducive and obviously unhelpful. The prohibition could not be a regulatory straightjacket. The case of therapeutic products must have been presented to the Federal Government upon which an exception was created in their favour. This could be the case with law books and journals as well. The Federal Government cannot shut its doors to requests for waiver of prohibition in favour of certain other products. Yet no procedure has been prescribed to consider such requests. If the matter of prohibition and restriction is a policy decision, then the related matter of revision of such decision is a policy matter too. This is a requirement of fair and equal process. Both the prohibition and the manner to reconsider that prohibition must form part of the same regime. This brings us to section 3 of the 1959 Act that alludes to 'the term and manner in which and the periods within which appeals and applications for review or revision may be preferred'. Doubtless, the reference is to the procedure for seeking review of a decision to prohibit import of specific goods and appellate forums to be setup. Such a course has not been supplied although the mandate of law compels that persons affected by an Import Policy Order may have the opportunity to put forth their cases for review of the condition of prohibition or restriction. For, there may be a host of conditions to require a change of policy. The petitioners at least have a right to request that a change be brought about in respect of the goods that they intend to import. It is acknowledged that a wide margin of judgment must be afforded to the government, but it is equally true that that judgment may be remarkably cramped and could be overturned upon cogent grounds. Seen against Constitutional Rights: 10. There is no doubt that the import of books and journals of Indian origin and in particular the Indian reprints of foreign books imported from India would be considerably cheaper and in respect of the data placed on record by the petitioner, there is no rebuttal on the part of the respondents. In reply to the contents of these petitions, the respondent No.3 which is the Ministry of Commerce, Government of Pakistan has proferred the following reasons for imposing ban on the import of goods from India: "Admitted to the extent that the Ministry of Commerce, in compliance with decision of the Federal Cabinet, issued the SROs 927(I)/2019 and 928(I)/2019 dated 09-08-2019 (Annex-X), whereby imports from and exports to India were banned for all kinds of goods, including books and journals. However, petitioners' contention that the said SROs (to the extent of import of book from India) is ultra vires of the constitution is vehemently denied. The Federal Government is competent

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to ban one or all goods or class of goods from any one or from world-wide sources. The Federal Government draws its powers from Article 99 of the Constitution and with the Rules of Business 1973, and section 3(1) of the Imports and Exports (Control) Act, 1950. Moreover, India is neither an authority on any field of knowledge nor enjoys monopoly over wisdom. As such banning imports from India including those of books/ journal does not infringe any of the Fundamental rights of the Petitioners, enshrined in the Constitution of Pakistan. Further, the Honourable Court would appreciate that the enjoyment of fundamental rights by citizen of Pakistan is subject to reasonable restrictions imposed in the national of public interest. This particular executive action, i.e. suspension of trade with India, has been taken in the context of Pakistan's national interest and long standing stance on Kashmir. In view of the above, Government's decision to ban all kinds of imports/exports including books/journals from India has been taken in accordance with the Constitution, law (Imports and Exports (Control) Act and Policy of the State of Pakistan on the Kashmir dispute." 11. It is stated in the extract reproduced above that the decision to ban imports from India was taken by the Federal Government and it includes books and journals. It is further stated that the Federal Government is competent to ban one or all goods or class of goods from any source world-wide. There is no denial to this fact. However, the issue relates to the exercise of discretion which has to be based on intelligible criteria and reasonableness. 12. Learned counsel for the petitioners relied upon Article 18 of the Constitution which provides that: "18. Freedom of trade, business or profession: Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent-- (a) the regulation of any trade or profession by a licensing system; or (b) (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons. 13. The fundamental right enshrined in Article 18 grants to citizens the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business but this has been made subject to such qualifications as may be prescribed by law. 14. Article 18 fell for determination before a Full Bench of this Court and in a judgment reported as City School Private Limited v. Govt. of the Punjab etc. (2018 PLD 509) the sweep of Article 18 was elaborated as follows:- "2. In the beginning, some general observations regarding the fundamental right enshrined in Article 18 of the Constitution may be made. This fundamental right is at the forefront of the arguments addressed by the learned counsel for the petitioners and the precise scope of this right was at the heart of the arguments addressed by counsels of both the sides of the aisle. 3. Let us begin by some observations by Lord Parker in Adelaide Steamship Co. (1913) AC 718 (PC), as regards the right to carry on trade or business which is inherent in every member of the community at common law: "At common law every member of the community is entitled to carry on any trade or business he chooses and in such manner as he thinks most desirable in his own interest and inasmuch as every right connotes an obligation, no one can lawfully interfere with another in the free exercise of his trade or business, unless there exists some just cause or excuse for such interference...Speaking generally, it is in the interest of every individual member of the community that he should be free to earn his livelihood in any lawful manner and in the interest of the community that every individual should have this freedom."

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4. The above observations were quoted by Cornelius J. in East and West Steamship Co. v. Pakistan (PLD 1958 SC (Pak) 41, 68). While dilating upon the reasons underlying the grant of fundamental right by Article 18, Cornelius J. went on to say that: "We may, therefore, safely conclude that among the considerations which guided the Constitution makers in the drafting of Article 12 (the present Article 18), so as to secure freedom to the citizens of Pakistan to conduct any lawful trade, the place of greatest importance must be given, firstly, to the necessity of ensuring to every individual member of the community, a right to engage in lawful trade according to his choice and to exercise that trade in a mode settled - by him at his own discretion and choice, within the legal requirements, and secondly that the interests of the community should be advanced, by the grant of such liberty to individual citizens, and that every action which tends to interfere with that liberty should be repressed, since it would be injurious to the interests of the State." 5. There is no doubt that the right concerns and protects an economic life of a citizen and the right to engage in any profession or occupation or trade or business. These are different forms and sources of livelihood and thus this right is inextricably linked with the right of life and liberty guaranteed by Article 9 of the Constitution. This right will also have to be read with Article 38 of the Constitution (one of the principles of policy) which enjoins on the State amongst others to provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure". It is in this sense that the reasonable restrictions imposed by the State may also be construed by the courts so that a regulation which is confiscatory in nature may not impinge upon the positive obligation cast under Article 38 on the State. It was reiterated in Muhammad Yasin v. Federation of Pakistan through Secretary, Establish Division, Islamabad and others (PLD 2012 SC 132) that: "Article 18 and the rights guaranteed by it are concerned with the economic life of the nation and its citizens." 6. To quote Cornelius J., once again in East and West Steamship Co. case: "in unequivocal terms that every citizen shall have the right to conduct any lawful trade or business. In so doing, the Article merely furnishes a fresh and authoritative declaration of a pre- existing right under the common law." 7. In granting the right, Article 18 uses different expressions such as profession, occupation, trade or business but does not define them. However, these are all general terms and as will be seen they run into each other. It will not be required in this case to engage in the nuanced debate as whether the petitioners conduct trade or business or carry on an occupation. For, the petitioners do not quarrel that they run the schools as an occupation and while doing so conduct a business too." 15. The 1950 Act would suffice as one of the qualifications prescribed by law which empowers the Federal Government to prescribe qualifications in respect of lawful trade regarding import of books and journals from India. The reply which has been set out above on behalf of respondent No.3 alludes to the spirit of national interest which was invoked to ban import of goods from India. It has been misconstrued in the reply that the issue relates to the import of books and journals from India which are exclusively of Indian origin and which will impinge upon the national policy or impact the national interest. The primary question raised by the learned counsel for the petitioner is that there are Indian reprints and foreign books being printed in India (by foreign publishers) which are considerably cheaper to import as compared to the counties of their origin which would entail higher prices given the exchange rate prevalent at current times. There is no doubt, therefore, that in certain cases the Federal Government may refuse the import of books from India which contain contents which are injurious to the national interest and regarding which the Courts will be loathe to interfere as such matters will be outside the domain of the Courts to judge whether the action is

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legitimate or not. With regard to certain other books and journals which carry no such connotation and do not have an adverse impact on the national interest, the decision may be made by the Federal Government in a given case to allow the import of such books. For instance, books which are purely research material or precedents of courts having legal and academic value to lawyers and judges as well as academic bodies in Pakistan may be allowed to be imported. These will have no consequent ramifications regarding national interest and will not jeopardise the interest of the country in any manner. In short, this is a matter which ought to be decided on a case to case basis and cannot be determined generally by use of the powers to impose a complete ban without regard to individual cases. For instance, the petitioners in these cases may, if the circumstances were right, apply to the Federal Government for import of specific books regarding which an analysis may be carried out by the Federal Government and upon such analysis may conclude that such books have no adverse bearing on the national security or interest of the country and may be allowed to be imported. Such discretion should continue to be retained by the Federal Government. 16. A reading of section 3 of the 1950 Act holistically and in the entire context of the law would also lead to the inference that it is intended that the Federal Government retain its power to decide upon the prohibitions and restrictions or otherwise to control the import and export of goods in individual cases coming up before it and for which a procedure may be prescribed by rules. Sub- section (1) of section 3 also prescribes that further appeals may be provided and applications for review or revision should also be prescribed through the rules. Surely, sub-section (2) prohibits the import of goods except in accordance with the conditions of a license to be issued by the Chief Controller. The intention to be gathered from a reading of section 3 leads to the ineluctable conclusion that a complete prohibition of import of goods would be an infringement of rights…

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