Aslam Akbar
Abstract
This article conducts a constitutional analysis of the ban on student unions in Pakistan and determines whether it is constitutional or not with the assistance of Article 17 of the Constitution of Pakistan (1973), which guarantees freedom of association. It maps the law that enabled the ban to take place, to become entrenched in law and to be institutionally maintained over four decades, not only as a matter of policy, but as a multi-layered suppression of a fundamental right.
The article places the ban in the context of the doctrine of proportionality, the constitutional framework of fundamental rights and comparative international human rights norms. It contends that the ban was from the outset ultra vires and that its endorsement by the courts in 1993 was a constitutional failure.
A new research gap arises: the lack of legislative vacuum analysis in the literature so far, that is, the absence of an examination of the unconstitutional default state imposed by the absence of any enabling legislation to regulate student unions (as opposed to banning them). This continues to this day, leaving Article 17(1) effectively suspended for an entire group of citizens.
The article finally notes the latest developments in the law, such as the constitutional bench proceedings of 2024 in Hamza Muhammad Khawaja v. Federation of Pakistan and the HEC framework of May 2025, before concluding with recommendations for a constitutionally sound way forward.
In this regard, Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973, provides that: “Freedom of association shall be guaranteed to all citizens…”
Introduction
The military government of General Zia-ul-Haq issued a series of Martial Law Orders on February 9, 1984, which effectively silenced the organised political voice of Pakistan’s student community. The ban, introduced under Martial Law Order No. 81 and subsequently reinforced through institutional mechanisms, was publicly justified as a measure to counter campus violence. In essence, however, it was a political move to suppress one of the most influential forces of civilian resistance in the country’s post-independence history.
This was not merely a policy choice; it marked the beginning of a legal conundrum that persists to this day. The Constitution of Pakistan, 1973, both before and after the ban, guarantees every citizen the right to form associations or unions under Article 17(1), subject to reasonable restrictions provided by law in the interests of sovereignty, public order or morality. Yet no specific law was ever enacted to replace the martial law prohibition. Instead, a military order became a quasi-permanent constitutional reality, first through constitutional inertia and, more damagingly, through a Supreme Court ruling in 1993 that did not adequately scrutinise the restriction under the very Constitution it was required to uphold.
This article argues that the ban was unconstitutional from the outset, that its judicial reinforcement in 1993 was constitutionally questionable, and that the legislative vacuum it created remains one of the most neglected aspects of constitutional governance in Pakistan’s educational and democratic journey.
The historical, sociological and political dimensions of the ban have been sufficiently documented. What has received less attention is the specific constitutional injury caused not only by the ban itself, but also by the deliberate absence of any constructive civil-law replacement. This failure transformed a temporary martial prohibition into a prolonged restriction of fundamental rights without a clear legislative foundation.
The Constitutional Framework: Article 17 and Its Scope
Article 17(1) of the Constitution of Pakistan, 1973, provides:
“All citizens shall have the right to form associations or unions subject to reasonable restrictions provided by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”
Article 17 is structurally significant. It establishes a positive right and specifies the circumstances in which that right may be restricted. For a restriction to satisfy the Constitution, it must be reasonable, imposed by law rather than merely by an executive order or administrative directive, and directed towards one of the interests expressly recognised in the Article. These conditions are conjunctive: failure to satisfy any one of them renders the restriction constitutionally vulnerable.
The phrase “imposed by law” is not merely procedural. It carries substantive constitutional meaning. It requires a restriction to have a legislative foundation, to be publicly accessible, to be reasonably defined and to remain subject to legislative scrutiny and debate. A martial law order, issued through executive authority without ordinary legislative deliberation, does not follow this constitutional process. Treating such an order as sufficient to restrict a fundamental right risks allowing the executive to limit the Constitution through a mechanism that bypasses the Constitution itself.
Furthermore, Article 8(1) renders laws inconsistent with fundamental rights void to the extent of that inconsistency. Students, as civilians, fall within the ordinary constitutional protection of fundamental rights.
The 1984 Ban: Legal Foundations and Constitutional Defects
Between January and March 1984, General Zia-ul-Haq’s government issued a series of Martial Law Orders that effectively prohibited political activities in colleges and universities across Pakistan. The political context is important. Anti-Zia alliances had won student union elections in Karachi in 1983, and the regime’s machinery in Sindh reportedly viewed university campuses as potential centres of organised political opposition, much as they had been during the resistance to Ayub Khan’s regime in 1968–69.
The stated justification was campus violence. However, the prohibition did not target violent conduct alone; it extended to student political organisation as a whole. It is also important to note that student political organisation had already been prohibited in Sindh since 1979. The national ban of 1984 extended an existing provincial restriction to the rest of the country.
The constitutional defects of the ban were serious. First, it was imposed through martial law rather than through an ordinary legislative process. It was not debated or enacted by the National Assembly. This raises a fundamental question under Article 17: whether an executive martial law order can satisfy the requirement that restrictions on freedom of association must be imposed by law.
Second, the ban failed the test of proportionality. If the legitimate objective was to prevent violence on campuses, the state could have targeted violent conduct, the possession of weapons, intimidation and other criminal activities. Instead, it prohibited political organisation across the board, including peaceful associations and groups with no history of violence. A blanket prohibition was considerably broader than what would have been necessary to address the stated concern.
Third, the ban affected more than the freedom of association guaranteed by Article 17. It also restricted freedom of expression under Article 19 and freedom of assembly under Article 16. These rights are closely connected. Suppressing student associations can also restrict students’ ability to express collective views and assemble peacefully. Such an extensive interference with fundamental rights required a strong constitutional justification, which the 1984 orders did not adequately provide.
Partial Reprieve and the Judicial Entrenchment of the Ban (1988–1993)
The return to democratic government in 1988 under Prime Minister Benazir Bhutto brought a temporary reprieve. In 1989, the Pakistan Peoples Party government repealed the relevant Martial Law Orders through an Act of Parliament, and student union elections were subsequently held in universities.
This was constitutionally significant. The executive martial law prohibition was replaced through parliamentary legislation, restoring the proper role of the legislature in determining the legal framework governing student unions.
The restoration, however, did not last. On July 1, 1992, the Supreme Court issued an interim order requiring students and their parents or guardians to sign an affidavit at the time of admission, undertaking that students would not engage in politics while enrolled in educational institutions. Breach of this undertaking could result in expulsion. The order was subsequently made final in 1993 by a three-member bench headed by Chief Justice Afzal Zullah, in the case reported as 1993 SCMR 1781.
The 1993 judgment raises serious constitutional questions. It restricted student organisations’ connections with major political parties and prevented students from holding positions in university statutory bodies. More importantly, it did not adequately examine whether the restrictions satisfied the three requirements of Article 17: reasonableness, a legislative foundation and a legitimate constitutional purpose.
Instead, the affidavit requirement was allowed to continue indefinitely. The judgment relied on concerns about campus violence without sufficiently examining whether a blanket restriction on student political organisation was necessary or proportionate.
The result was a troubling institutional development. The Supreme Court’s order became a lasting source of support for restrictions on student political activity. Universities across Pakistan incorporated the affidavit into their admission procedures and continued to enforce it even as the political and legal circumstances that had produced the judgment changed.
The right to form associations under Article 17(1) cannot be indefinitely restricted through an administrative affidavit that lacks a clear statutory foundation. Nor should a judicial order substitute for the legislative process required by the Constitution.
The Unaddressed Research Gap: The Legislative Vacuum
Existing historical, sociological and legal discussions of student unions in Pakistan have generally focused on three areas: the political motives behind the 1984 ban, the impact of the ban on leadership development, and the comparative consequences for student politics before and after 1984.
These are important questions. However, considerably less attention has been given to what this article describes as the constitutional legislative vacuum: the failure of successive democratic governments to enact a clear legal framework governing student unions.
This is not simply an academic omission. Article 17 does not prohibit all restrictions on freedom of association. It permits reasonable restrictions imposed through legislation and proportionate to legitimate constitutional objectives. If governments believe that student political activity requires regulation, the Constitution provides a lawful route. Parliament and provincial assemblies can define the rights and responsibilities of student unions, establish regulatory procedures, prohibit weapons on campuses, restrict external interference and introduce appropriate codes of conduct.
Instead, successive governments have relied on the 1993 judicial order rather than exercising their legislative authority. This has created a constitutional problem that extends beyond the original ban. Democratic legislatures have a positive responsibility to establish the legal framework within which citizens can exercise their fundamental rights, subject to constitutionally permissible restrictions.
The first significant legislative development came in Sindh, where the provincial assembly passed the Student Union Bill in 2019. It was subsequently signed into law in March 2022. Another important development was the Higher Education Commission’s proposed framework of May 2025, following proceedings in Hamza Muhammad Khawaja v. Federation of Pakistan.
Nevertheless, the implementation gap remains substantial. The Sindh Student Union Act, 2022, provides for the establishment of student unions, elections, codes of conduct and restrictions on weapons and incitement to hatred. Yet, according to the article, elections had not been held in educational institutions under the Act as of the time of writing.
The central constitutional issue, therefore, is not simply whether student unions are permitted or prohibited. It is the absence of a comprehensive and effectively implemented legislative framework that gives practical meaning to the right guaranteed by Article 17.
International Human Rights Dimensions
Pakistan’s constitutional obligations must also be considered alongside its international commitments. Article 20 of the Universal Declaration of Human Rights, 1948, and Article 22 of the International Covenant on Civil and Political Rights (ICCPR) protect freedom of association.
Under Article 22 of the ICCPR, restrictions on freedom of association must be prescribed by law and necessary in a democratic society in the interests of national security, public safety, public order, or the protection of the rights and freedoms of others.
The requirement of necessity in a democratic society establishes a demanding standard. A restriction must respond to a genuine and sufficiently serious concern and remain proportionate to the objective being pursued. A blanket prohibition on student political organisation, particularly when imposed through an administrative affidavit rather than legislation, raises serious questions under this standard.
If campus violence is the concern, the state can enforce criminal law, prohibit weapons and punish intimidation. These targeted measures address harmful conduct without extinguishing the right of peaceful association for an entire category of citizens.
The absence of a constitutionally sound domestic framework therefore raises questions not only under Pakistan’s Constitution but also in relation to its international human rights commitments.
Recent Legal Developments: The Road to Constitutional Rectification
The proceedings in Hamza Muhammad Khawaja v. Federation of Pakistan before the Supreme Court’s constitutional bench represent an important development. The petition challenged both the 1984 ban and the legal basis of the 1993 judgment, particularly the requirement that students submit affidavits undertaking not to participate in politics.
In December 2024, the constitutional bench agreed to hear the petition and issued notices to the federal government, the Higher Education Commission and the provincial governments. Among the central questions raised was whether the existing restriction could satisfy Article 17’s requirement that limitations on freedom of association must be imposed by law.
The proceedings provide an opportunity to examine whether a formal legislative prohibition on student unions exists in positive law or whether the restrictions have continued primarily through the effects of the 1993 judgment and administrative practices.
In May 2025, the Higher Education Commission discussed a proposed framework for student representation in universities in response to the Supreme Court’s directions. The proposed framework reportedly addresses the structure of student representation, eligibility criteria, election procedures, financial oversight, codes of conduct and an independent steering committee.
This is an important step towards establishing a regulated system of student representation. However, a critical question remains: whether the framework will have a proper legislative foundation or will remain administrative guidance without enforceable legal authority.
The Way Forward: A Constitutionally Compliant Framework
The legislative vacuum must be addressed through a clear sequence of constitutional and institutional steps.
First, the Supreme Court should examine the continued validity of the 1993 affidavit requirement in light of Article 17(1). The restriction must be assessed against the constitutional requirements of legality, reasonableness and proportionality.
Second, Parliament should enact legislation establishing a framework for student unions in federally chartered institutions. The legislation should define the scope of student union activities, establish transparent eligibility and election procedures, provide safeguards against weapons and intimidation, and create mechanisms for institutional accountability. The framework must rest on parliamentary authority rather than administrative arrangements alone.
Third, provincial assemblies should enact and implement corresponding legislation within their constitutional responsibilities for education following the Eighteenth Amendment. These laws should contain enforceable implementation timelines and procedures.
Finally, the Higher Education Commission must ensure that its policies and institutional practices support, rather than obstruct, constitutionally protected student representation. A regulatory framework should facilitate the exercise of fundamental rights while providing effective safeguards against violence and external interference.
Conclusion
The 1984 prohibition on student unions in Pakistan was imposed through martial law orders rather than ordinary legislation. It restricted the freedom of association guaranteed by Article 17(1), while also affecting the connected rights of expression and peaceful assembly. The subsequent judicial and administrative arrangements did not resolve the fundamental question of whether such restrictions possessed a valid legislative foundation.
The more enduring constitutional failure lies in the inaction of successive democratic legislatures. For decades, Parliament and provincial assemblies failed to establish a comprehensive legal framework that could regulate student unions while protecting the fundamental rights of students.
The proceedings in Hamza Khawaja v. Federation of Pakistan and the HEC framework proposed in May 2025 offer an opportunity to address this longstanding problem. The challenge now is to translate constitutional guarantees into enforceable law and practical institutional arrangements.
Pakistan must decide whether Article 17 will remain a constitutional promise that is denied to students in practice or become a living right supported by legislation, institutional safeguards and democratic participation.
Aslam Akbar
Student of Law, Bahria University, Islamabad
