Full Judgment Text
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PETITIONER:
MOHD. MAQBOOL DAMNOO
Vs.
RESPONDENT:
STATE OF JAMMU AND KASHMIR
DATE OF JUDGMENT05/01/1972
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
SHELAT, J.M.
DUA, I.D.
KHANNA, HANS RAJ
MITTER, G.K.
CITATION:
1972 AIR 963 1972 SCR (2)1014
1972 SCC (1) 536
CITATOR INFO :
RF 1973 SC1461 (3,15)
RF 1976 SC1207 (117,118,486,566,568,572)
D 1986 SC 872 (105)
ACT:
Constitution of Jammu and Kashmir (6th Amendment) Act, 1965-
Providing for appointment of Governor in place of Sadar-i-
Riyasat Validity of amendment in view of Explanation to
Article 370(1) of Constitution of India still referring to
Sadar-i-Riyasat as Head of State-- Assent of Governor of
Jammu and Kashmir to Preventive Detention (Amendment) Act,
1967 whether results in valid law-Amendment of Art. 367 of
Constitution of India to the effect that reference to Sadar-
i-Riyasat shall be read as reference to Governor whether
amounts to amendnent of Art. 370(1) by backdoor--Proviso to
section 8(1) of Detention Act whether suffers front
excessive delegaion-Proviso whether bad because it conflcts
with section 103 of Constitution of Jammu and Kashmir
Whether detention order violates Art. 21 and 22 of
Constitution-Whether detention bad because detaining
authority had not applied its mind Whether order of
detention served and executed in accordance with law.
HEADNOTE:
Under the Explanation to Article 37U(1) as originally
enacted the Government of the State of Jammu and Kashmir
meant the person for the time being recognised by the
President of India as Maharaja of Jammu and Kashmir acting
on the advice of his Council of Ministers., In 1952 the
Constituent Assembly of the State resolved that the Maharaja
shall be replaced by an elected head of the State designated
as the Sadar-iRiyasat. Consequential changes were made in
Article 370(i) of the Constitution of India and in the
Explanation to the Article the Government of the State of
Jammu and Kashmir was defined to mean the person for the
time being recognised as the Sadar-i-Riyasat of Jammu and
Kashmir acting on the advice of the Council of Ministers.
By the Constitution of Jammu and Kashmir (6th Amendment Act)
1965 which received the assent of the Sadar-i-Riyasat the
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Constitution of Jammu and Kashmir provided for the
appointment of a Governor in place of Sadar-i-Riyasat. No
consequential change was made in Art. 370(1) of the
Constitution of India, but Article 367 was amended to the
effect that references to the Sadar-i-Riyasat of Jammu and
Kashmir shall be construed as reference to the Governor of
Jammu and Kashmir and reference to the Government of the
said State shall be construed as including references to the
Governor of Jammu and Kashmir acting on the advice of his
Council of Ministers. The Jammu and Kashmir Preventive
Detention (Amendment) Act, 1967 (J & K Act 8 of 1967) after
being passed by the Legislative Assembly received the assent
of the Governor of Jammu and Kashmir. The petitioner was
detained under the provisions of this Act by the order of
the District Magistrate dated June 24, 1970. In a writ
petition under article 32 of the Constitution the petitioner
contended (i) that the Jammu and Kashmir Preventive
Detention (Amendment) Act, 1967 was invalid as it was not
assented to by the Sadar-i-Riyasat who alone was mentioned
as Head of the State in the Explanation to Article 370(1);
(ii) that the proviso inserted by action 4(2) in sub-section
(1) of Section 8 of the Detention Act was bad because it
sufferred from excessive delegation: (iii) that there had
been violation of Articles 21 and 22 of the Constitution;
(iv) that at any date the proviso was bad because it
convicted with Section 103 of the Constitution of Jammu and
Kashmir; (v) that the
1015
detention order was bad because the detaining authority had
not applied its mind; and (vi) that the order of detention
was bad because it was not served or executed in accordance
with law.
HELD : (i) (a) The essential feature of Article 370 sub-
clause (1) (b) and (d) is the necessity of concurrence of
the State Government or the consultation of the State
Government. What the State Government is at a particular
time has to be determined in the context of the Constitution
of Jammu and Kashmir. The Explanation did no more than
recognise the constitutional provision as it existed on that
date and the Explanation as substituted from November 17,
1952 also did not more than recognise the constitutional
provision in the State. Therefore, there is no difficulty
in holding that Article 370(1)(b) and Article 370(1)(d)
place no limitation on the framing and amendment of the
Constitution of Jammu and Kashmir. If there is a limitation
it must be found in the Constitution of the State. Section
147 of the Constitution of Jammu and Kashmir itself provides
that under that section the Indian Constitution cannot be
amended. [1025 F-G]
(b) The Explanation to Art. 370(1) had ceased to operate
because there was no longer any Sadar-i-Riyasat of Jammu and
Kashmir. If the definition contained in the Explanation
cannot apply to the words ’Government of the State’ the
meaning given in Article 367(4) as amended will have to be
given to it. If this meaning is given it is quite clear
that the Governor is competent to give the concurrence,
stipulated in Article 370 and perform other functions laid
down by the Jammu and Kashmir Constitution. [1026 B-C]
Sampat Prakash v. State of Jammu and Kashmir, [1969] 2
S.C.R. 365; referred to.
(c)The contention that section 147 of the Constitution of
Jammu and Kashmir contemplates perpetual existence of Sadar-
i-Riyasat because this section expressly bars the Assembly
from amending any provision of Art. 147 and one of the
provisions continued in this section is that the assent to
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the amendment of the Constitution must be given by the
Sadari-Riyasat, cannot be accepted. The Constitution itself
contains section 18 which provides that unless the context
otherwise requires the General Clauses Act, Samvat 1977
shall apply for the interpretation of this Constitution as
it applies for the interpretation of the Act of the State
legislature. By virtue of this Act the Governor is the
successor to the Sadar-i-Riyasat. He would be entitled to
exercise all the powers of the Sadar-i-Riyasat. There is no
doubt that he is the successor. It is quite clear from
sections 26, 27 and 28 of the Jammu and Kashmir
Constitution that the Sadar-i-Riyasat is really the name
given to the Head of the State. Under the said Constitution
as amended the head of the State is designated as the Gover-
nor Sub-section (2) of section 26 as amended vests the
executive powers of the State in him. The Governor is not
elected as was the Sadar-iRiyasat, but the mode of
appointment would not make him any the less a successor to
the Sadar-i-Riyasat. Both are heads of the State. [1026 D-
1027 C]
(d)The rule laid down in Golaknath’s case was not attracted
to the facts of the present case. It is not as if State
Government has been made irresponsible to the legislature or
its fundamental character as a responsible government is
altered. Just as a change in the designation of the head of
the government was earlier brought about by the introduction
of the office of Sadar-i-Riyasat, so too a change had been
brought about in his design ,nation, from that of Sadar i-Riy
asat to the Governor. ’Mat was necessitated by reason
of the Governor having been substituted
1016
in place of Sadar-i-Riyasat. There is no question of such
change being one in the character of that government from a
democratic to a nondemocratic system. [1027 G-1028 B]
Golaknath v. State of Punjab, [1967] 2 S.C.R. 762;
distinguished.
(e)Clauses (aa) and (b) of article 367(4) as substituted
by C.O. 74 of 1965 (The Constitution Application to Jammu
and Kashmir) Second Amendment Order, 1965 cannot be said to
be an amendment of Article 370(1) by back door. The
Explanation had become otiose and references to the Sadar-i-
Riyasat in other parts of the Constitution had also become
otiose. There were two alternatives, first, either to leave
the courts to interpret the words "Government of the State"
and give it its legal meaning or secondly to give legal
meaning in a definition clause. What has been done is that
by adding clauses (aa) and (b) a definition is supplied
which the Courts would have in any event given. [1028 D-E]
Accordingly, it must held that the amending Act was validly
assented to by the Governor. [1028 G]
(2)The Jammu and Kashmir Preventive Detention (Amendment)
Act. 1967 did not delegate any legislative powers to
anybody. it confers executive powers on the detaining
authority by the insertion of the proviso to section 8 to
direct that the person detained may be informed that it
should be against public interests to communicate to him the
grounds on which the detention order had been made. When
the detaining authority chooses to so direct it cannot be
said that the detaining authority is exercising any
legislative power. [1028 H-1029 A]
(3) The detention could not be said to be in violation of
Articles 21 and 22of the Constitution because they were
excluded by Article 35(c) of the Constitution. [1029 B]
(4) The order expressly directed that the petitioner be
detained in Central Jail Srinagar and a copy of the Order
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was endorsed to the Deputy Superintendent of Police, as
required by S. 4 of the Detention Act. Section 75(1) Cr.
P.C. had been complied with as the order was in writing and
had been signed by the detaining authority. Section 76 4Cr.
P.C. had no application to the case because it applies only
when the Court directs that security be taken. [1029 C-E]
(5)The contention that the proviso to section 8 inserted
by the Jammu and Kashmir Preventive Detention (Amendment)
Act, 1967 was in conflict with section 103 of the Jammu and
Kashmir Constitution could not be accepted. It is quite
clear that the Legislature has no right to directly amend
section 103 nor has it the power to make the exercise by the
High Court of its Jurisdiction under s. 103 illusory. But
it cannot be held that the proviso is ultra vires because
the proviso and the Act do not bar the High Court or this
Court from looking into the validity of the detention. The
High Court and this Court are free to exercise the
Jurisdiction by calling upon the State in appropriate case
to produce before it the grounds of detention and other
material in order to satisfy itself that the detenu was
being detained in accordance with law. From the file
produced before the High Court by the State the grounds on
which detenu has been detained were shown to have relevance
to the security of the State and it could not be said that
the detaining authority bad not applied its mind to the
facts of the case. [1029 F-1030 G]
1017
Prem Chand Garg v. Excise Commissioner U.P., [1963] Suppl.
1 S.C.R. 885; A. K. Gopalan v. The State of Madras, [1950]
S.C.R. 8.8 referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 144 of 1971.
Under Article 32 of the Constitution of India for a writ in
the nature of habeas corpus.
R.K. Garg, S. C. Agarwal, A. K. Gupta and R. K. Jain,
for the petitioner.
Ishwar Singh Bakshi, Advocate-General for the State of Jammu
and Kashmir, M. C. Chagla, R. N. Sachthey and S. K.
Dholakia, for the respondent.
Niren De- for the Attorney-General for India; R. N. Sachthey
and Ram Panjwani, Advocates, with him.
The Judgment of the Court was delivered by
Sikri, C.J. This is a petition under Art. 32 of the
Constitution challenging the detention of the petitioner
under the Jammu and Kashmir Preventive Detention Act, 1964
(J. & K. Act XIII of 1964)hereinafter referred to as the
Act.
On June 24, 1970, the District Magistrate of Baramula passed
the impugned detention order in the following terms :
"OFFICE OF THE DISTRICT MAGISTRATE,
BARAMULLA
No. PDA/IMB/81
Dated 24-6-1970
ORDER
Whereas I, S. S. Rizvi, District Magistrate,
Baramula, am satisfied that with a view to
preventing Mohammad Maqbool Damnoo S/s Ghulam
Mohi-un-Din Damnoo alias Madha Joo r/o
Sangrampora from acting in any manner
prejudicial to the security of the State, it
is necessary so to do;
Now, therefore, in exercise of the powers
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conferred by Section 3 (2) read with section 5
of the Jammu and Kashmir Preventive Detention
Act, 1964, I, S. S. Rizvi, District
Magistrate, Baramulla hereby direct that the
said Mohammad Maqbool Damnoo be detained in
the Central jail Srinagar, subject to such
conditions as to main-
1018
tenance, discipline and punishment for
breaches of discipline as have been specified
in the J & K Detenus General Order, 1968.
Sd/-
District Magistrate,
Baramulla.
No. Con/826-30
Dated 24-6-1970
Copy forwarded :-
1.Shri Abdul Majid Lone, Dy. S.P. Sopore in
duplicate for execution of the order as
provided by section 4 of the J&K Preventive
Detention Act, 1964. Notice of the order
shall be given to Mohammad Maqbool Damnoo by
reading over the same to him and one copy duly
executed, returned to this office.
On the same date, the District Magistrate passed an order
under s. 8, read with s. 13-A of the Act directing that the
petitioner be informed that it was against the public
interest to disclose to him the grounds on which his
detention was based. On July 11, 1970, the Government
having considered the order of detention, the report of the
District Magistrate, the grounds on which the order had been
made, and other particulars bearing on the matter approved
the said detention order.
The petitioner sent an application to this Court dated April
10, 1971 requesting that he be produced before this Court so
as to enable him to file an appropriate writ challenging his
detention. This Court on May 11, 1971 directed that this
application be treated as writ petition under art. 32 of the
Constitution and directed issue of rule nisi. The Court
further directed that the petitioner be produced before it
two days before the hearing of the petition.
The State filed an affidavit in reply. The petitioner then
filed the formal writ petition through an advocate on July
27, 1971. The State again filed an affidavit in reply. On an a
pplication having been made for permitting to raise
additional grounds the Court allowed the petitioner ’to Me a
comprehensive amended petition. On October 9, 1971, the
amended writ petition was filed in this Court. The State
filed another affidavit in reply.
1019
Mr. Garg, who appeared on behalf of the petitioner, raised
the following points before us :
(1)that the Jammu & Kashmir Preventive Deten-
tion (Amendment) Act, 1967 (J&K Act VIII of
1967)-hereinafter referred to as the Amending
Act was invalid as it was not assented to by
the Sadar-iRiyasat;
(2) that the proviso inserted by s. 4(2) in
sub-s.
(1) of s. 8 is bad because it suffers from
excessive delegation;
(3)there has been violation of Art. 21 and
Art. 22 of the Constitution;
(4) at any rate, the proviso is bad because
it conflicts with s. 103 of the Constitution
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of Jammu & Kashmir;
(5) that the detention order is bad because
the detaining authority has not applied its
mind; and
(6) that the order of detention is bad
because it was not served or executed in
accordance with law.
In support of his first contention the learned counsel urged
that under Art. 370 of the Indian Constitution the only
authority which is recognised as ’the Government of the
State of Jammu & Kashmir is the Sadar-i-Riyasat, Article 370
contemplates that the Sadar-i-Riyasat would be the head of
the- State of Jammu and Kashmir and the Jammu and Kashmir
Assembly had no power to abolish the office of the Sadar-i-
Riyasat. He further urged that s. 147 cf, the Constitution
of Jammu and Kashmir also contemplates that the Sadar-i-
Riyasat shall exist and ’be the head of the State. He urged
that the only possible way of getting rid of the Sadar-i-
Riyasat would be the amendment of the Constitution of India
as applied to Jammu and Kashmir.
The learned Attorney-General, who appeared on behalf of the
Government of India, and Mr Chagla, who appeared for the
State, contended that the Constitution of Jammu and Kashmir
(Sixth Amendment) Act, 1965, which had received the assent
of the Sadar-i-Riyasat, validly amended the Constitution of
Jammu & Kashmir and validly provided for the appointment of
a Governor in place of the Sadar-i-Riyasat, and therefore,
the Governor was competent to give assent to the Jammu and
Kashmir Preventive Detention (Amendment) Act, 1967.
In order to appreciate the points raised before us it is
necessary to give a brief history of the various
constitutional changes which took place in the State of
Jammu and Kashmir. H. H.
1020
the Maharaja of Jammu & Kashmir, in a letter dated October
26, 1947, addressed to His Excellency the’ Governor-General
of India, offered to accede to the Dominion of India. On
October 27, 1947, the Governor-General accepted the offer
and made certain stipulations with which we are not
concerned. On March 5, 1948, H. H. the Maharaja of Jammu &
Kashmir issued a proclamation forming a responsible Govt. of
a Council of Ministers headed by the Prime Minister which
was to take steps to constitute a National Assembly based on
adult franchise to form a separate Constitution for the
State. On June 20, 1949 Maharaja Sir Hari Singh entrusted
his legislative, executive and judicial functions to his
son, Yuvraj Karan Singh for a temporary period.
On November 25, 1949 a proclamation was issued by Yuvraj
Karan Singh directing that the Constitution of India to be
adopted by the Constituent Assembly of India be adopted by
the Constituent Assembly in so far as it was applicable in
Jammu and Kashmir in order to govern the relationship of the
State and the contemplated Union of India.
The Constitution of India was adopted on November 26, 1949
and on the same date certain provisions came into force and
the remaining provisions came into force on January 26,
1950.
Article 370 of the Constitution dealt with the relationship
of the State of Jammu & Kashmir with the Union of India.
Article 370 reads as follows :
370. (1) Notwithstanding anything in this
Constitution,-
(a) the provision of ’article 238 shall not
apply in relation to the State of Jammu and
Kashmir;
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(b) the power of Parliament to make laws for
the said State shall be limited to-
(i) those matters in the Union List and the
Concurrent List which, in consultation with
the Government of the State, are declared by
the President to correspond to matters
specified in the Instrument of Accession
governing the accession of the State to the
Dominion of India as the matters with respect
to which the Dominion Legislature may make
laws for that State; and
(ii) such other matters in the said Lists as,
with the concurrence of the Government of the
State, the President may by order specify.
1021
Explanation-For the purposes of this article the Government
of the State means the person for the time being recognised
by the President as the Maharaja of Jammu and Kashmir acting
on the advice of the Council of Ministers for the time being
in office under the Maharaja’s proclamation dated the fifth
day of March, 1948;
(c) the provisions of article (1) and of
this article shall apply in relation to that
State;
(d) such of the other provisions of this
Constitution shall apply in relation to that
State subject to such exceptions and
modifications as the President may by order
specify:
Provided that no such order which relates to
the matters specified in the Instrument of
Accession of the State referred to in
paragraph (1) of sub-clause (b) shall be
issued except in consultation with the
Government of the State;
Provided further that no such order which re-
lates to matters other than those referred to
in the last preceding proviso shall be issued
except with the concurrence of that
Government.
(2) If the concurrence of the Government of the State
referred to in paragraph (ii) of sub-clause (b) of clause
(1) or in the second proviso to sub-clause (d) of that
clause be given before the Constituent Assembly for the
purpose of framing the Constitution of the State is
convened, it shall be placed before such Assembly for such
decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of
this article, the President may, by public notification,
declare that this article shall cease to be operative or
shall be operative only with such exceptions and
modifications and from such date as he may specify :
Provided that the recommendation of the Constituent Assembly
of the State referred to in clause (2) shall be necessary
before the President issues such a notification.
On January 26, 1950 the Constitution (Application to Jammu
and Kashmir) Order, 1950 was made by the President. On
April 20, 1951, the Maharaja of Jammu & Kashmir issued a
proclamation in pursuance of which the Constituent Assembly
of Jammu and Kashmir was convened on November 5, 1951. On
June 10,
1 022
1952 the Basic Principles Committee of Jammu and Kashmir
Constituent Assembly submitted the interim report to the
Constituent Assembly and recommended that:-
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(a) the form of the future constitution of
Jammu & Kashmir shall be wholly democratic,
(b) the institution of hereditary Rulership
shall be terminated, and
(c) the office of the Head of the State
shall be elective.
The Constituent Assembly by a resolution
adopted these recommendations. The following
part of the, resolution is relevant
"Now, therefore, in pursuance of the
resolution, dated the 12th June, 1952, and
having considered the report of the Drafting
Committee, this Assembly resolves :
1. (i) that the Head of the State shall be
the person recognised by the President of
Union on the recommendations of the
Legislative Assembly of the State;
(ii) he shall hold office during the pleasure
of the President;
(iii) he may, by writing under his hand,
addressed to the President, resign his office;
(iv) subject to the foregoing provisions, the
Head of the State shall hold office for a term
of five years from the date he enters upon his
office;
Provided that he shall, notwithstanding the
expiration of his term, continue to hold the
office until his successor enters upon his
office;
2. that the recommendation of the
Legislative Assembly of the State in respect
of the recognition of the Head of the State
specified in sub-para (i) of paragraph 1,
shall be made by election;. . .
4. that the Head of the State shall be
designated as the Sadar-i-Riyasat.
1023
On November 15, 1952, the President made Order No. C.O. 44
to the following effect:
"In exercise of the powers conferred by this
article (art. 370) the President, an the
recommendation of the Constituent Assembly of
the ’State of Jammu and Kashmir, declared
that, as from the 17th day of November, 1952,
the said art. 370 shall be operative with the
modification that for the Explanation in cl.
(1) thereof, the following Explanation is
substituted, namely:-
"Explanation.-For the purposes of this
article, the Government of the State means the
person for the time being recognised by the
President on the recommendation of the
Legislative Assembly of the State as the
Sadar-i-Riyasat of Jammu and Kashmir, acting
on the advice of the Council of Ministers of
the State for the time being in office."
On May 14, 1954, in exercise of the powers conferred by cl.
(1) of art. 370 of the Constitution, the President with the
concurrence of the Government, of the State of Jammu and
Kashmir, made the Constitution (Application to Jammu and
Kashmir) Order, 1954. It superseded the Constitution
(Application to Jammu and Kashmir) Order, 1950. It applied
various provisions of the Indian Constitution to the State
of Jammu and Kashmir. Under Art. 35, after clause (b) the
following clause (c) was added :
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" (c) no law with respect to preventive
detention made by the Legislature of the State
of Jammu & Kashmir, whether be before or after
the commencement of the Constitution
(Application to Jammu and Kashmir) Order.
1954, shall be void on the ground that it is
inconsistent with any of the provisions of
this Part, but any such law shall, to the
extent of such inconsistency, cease to have
effect on the expiration of five years from
the commencement of the said Order, except as
respects things done or omitted to be done
before the expiration thereof."
We may notice two other applications. Under art. 361, after
cl. (4) the following clause was added, namely:
" (5) The provisions of this article shall
apply in relation to the Sadar-i-Riyasat of
Jammu and Kashmir as they apply in relation to
a Rajpramukh, but without prejudice to the
provisions of the Constitution of that
,Slate."
1 024
To art. 367 was added the following clause,
namely:-
"(4) For the purposes of this Constitution as
it applies in relation to the State of Jammu
and Kashmir-
(a) reference to this Constitution or to the
provisions thereof shall be construed as
references to the Constitution or the
provisions thereof as applied in relation to
the said State;
(b) references to the Government of the said
State shall be construed as including
references to the Sadar i-Riyasat acting on
the advice of his Council of
Ministers......... "
To art. 368 was added the following proviso:
"Provided further that no such amendment shall
have effect in relation to the State of Jammu
and Kashmir unless applied by order of the
President under clause (1) of article 370."
We may mention that, as far as the State of Jammu and.
Kashmir was concerned, some entries in the Union List were
modified, entry 97 was omitted, and the State List and the
Concurrent List were omitted.
On November 17, 1956 the Jammu and Kashmir Constitution was
adopted. Some sections came into force on that date and the
remaining sections came into force on January 26, 1957. On
November 6, 1957 karan Singh was elected Sadar-i-Riyasat for
the second time. On October 31, 1962, Karan Singh was
elected Sadar-i-Riyasat for the third time. On April 10,
1965 Jammu and Kashmir Constitution (Sixth Amendment) Act,
1965 received the assent of the Sadar-i-Riyasat. On
November 24, 1965, the President, in exercise of the powers
conferred by clause (1) of art. 370 of the Constitution,
with the concurrence of the Government of the State of Jammu
and Kashmir, made the Constitution (Application to Jammu and
Kashmir) Second Amendment Order, 1965. Under this Order,
for sub-cl. (b) of el. (4) of art. 367 the following clauses
were inserted
"(aa) references to the person for the time
being recognised by the President on the
recommendation of the Legislative Assembly of
the State as the Sadar-i-Riyasat of Jammu and
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Kashmir, acting on the, advice of the Council
of Ministers of the State for the time being
in office, shall be construed as references to
the Governor of Jammu & Kashmir;
(b) references to the Government of the said
State shall be construed as including
references to the Gover-
102 5
nor of Jammu and Kashmir acting on the advice
of his Council of Ministers;
Provided that in respect of any period prior
to the 10th day of April, 1965, such
references shall be construed as including
references to the Sadar-i-Riyasat acting on
the advice of his Council of Ministers."
The main point of dispute between the parties is the
position, and importance of the Explanation in art. 370 of
the Constitution.
According to the _Attomey-General this is a mere definition
inserted for the purpose of the article in accordance with
the constitutional conditions prevailing at that time.
According to Mr. Garg, this is the king-,pin of the whole
relationship between the Union of India and the State of
Jammu and Kashmir. According to him neither the Jammu and
Kashmir Assembly nor the President were competent to impair
the functioning of the Sadar-i-Riyasat and insofar as the
Constitution of Jammu and Kashmir (Sixth Amendment) Act,
1965 replaced the Sadar-i-Riyasat by the Governor it is
ultra-vires. According to him, either there has to be an
amendment of the Constitution of India under art. 369 and
art. 370(3) or a fresh Constituent Assembly has to be
convened to amend the Explanation. He said that if the text
of the Constitution is explicit, effect must be given to it
and it is not the duty of the Courts to improve upon the
Constitution because the constitution-makers had not
anticipated such a change.
It seems to us that the essential feature of art. 370, sub-
clauses l(b) and (d) is the necessity of concurrence of the
State Government or the consultation of the State
Government. What the State Government is at a particular
time has to be determined in the context of the Constitution
of Jammu and Kashmir. The Explanation did no more than
recognise the constitutional position, as it existed on that
date and the Explanation, as substituted from November 17,
1952, also did no more than recognise the constitutional
position in the State.
We have, therefore, no difficulty in holding that art.
370(1)(b) and art. 370 (1) (d) place no limitation on the
framing or amendment of the Constitution of Jammu and
Kashmir. if there is a limitation it must be found in the
Constitution of the State. Section 147 of the Constitution
of Jammu and kashmir itself provides that under that section
the Indian Constitution cannot be amended.
The learned counsel, relying on Sampat Prakash v. State of
Jammu and Kashmir(1) contended that the only way of
modifying art. 370 is specified in art. 370(3) itself. He
said that this was
(1) [1969] 2 S.C.R.365.
1026
expressly laid down by this Court in the decision just
referred to. We are not concerned with the question whether
art. 370(3) can now be utilised to amend the provisions of
art. 370(1) and (2), and therefore we do not express any
opinion on that point. We are now not concerned with an
amendment of art. 370(1). We are concerned with the
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situation where the explanation ceased to operate. It had
ceased to operate because there is no longer any Sadar-i-
Riyasat of Jammu and Kashmir. If the definition contained
in the Explanation cannot apply to the words "government of
the State" then the meaning given in art. 367(4), as
amended, will have to be given to it. If this meaning is
given, it is quite clear that the Governor is competent to
give the concurrence stipulated in art. 370 and perform
other functions laid down by the Jammu and Kashmir
Constitution.
The learned Counsel for the petitioner drew our attention to
,S. 147 of the Constitution of Jammu and Kashmir. He said
that even this section contemplates the perpetual existence
of the Sadar i-Riyasat because this section expressly bars
the Assembly from amending any provision of art. 147 and one
of the provisions contained in this section is that the
assent to an amendment of the Constitution must be given by
the Sadar-i-Riyasat. It is true that s. 147 provides that
"an amendment of this Constitution may be initiated only by
the introduction of a Bill for the purpose, in the
Legislative Assembly, and when the Bill is passed in each
House by a majority of not less than two-thirds of the total
membership of that, House, it shall be presented to the
Sadar-i-Riyasat for his assent and, upon such assent being
given to the Bill, the Constitution shall stand amended in
accordance with the terms of the Bill." But the Constitution
itself contains s. 158 which provides that "unless the
context otherwise requires the General Clauses Act, S. 1977.
shall apply for the interpretation of this Constitution as
applies for the interpretation of an Act of the State
Legislature." ’The General Clauses Act contains S. 18 which
reads :
8. In any Act made after the commencement
of this Act, it shall be sufficient, for the
purpose of indicating the relation of a law to
the successors of any functionaries or of
corporations having perpetual succession, to
express its relation to the functionaries or
corporations."
By virtue of this Act, if the Governor is the successor- to
the Sadari-Rivasat. he would be entitled to exercise all the
powers of the ’Sadar-i-Riyasat. There is no doubt that he
is the successor. The original constitution, by s. 26,
provided :
"26(1). The Head of the State shall be
designated as the Sadar-i-Riyasat. (2) The
executive power of the
1027
State shall be vested in the Sadar-i-Riyasat
and shall be exercised by him either directly
or through officers subordinate to him in
accordance with this Constitution.
Section 27 provided for the election of the Sadar-i-Riyasat
and’ s. 28 for the term of office. It is quite clear from
these provisions that the Sadar-i-Riyasat is really the name
given to the head of the State. Under the State
Constitution as amended the Head oil the State is designated
as the Governor. Sub-s. (2) of S. 26, as amended, vests the
executive powers of the State in him.
It is true that the Governor is not elected as was the
Sadar-iRiyasat, but the mode of appointment would not make
him any the less a successor to the Sadar-i-Riyasat. Both
are heads of the State.
Mr. Garg argued that the amendment of ss. 26 and 27 of the
Constitution of Jammu & Kashmir was bad. In support of his
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argument, he relied on the following passage in Golaknath
v.. State of Punjab(1) :
"The next argument is based upon the
expression "amendment" in art. 368 of the
Constitution and it is contended that the said
expression has a positive and a negative
content and that in exercise of the power of
amendment Parliament cannot destroy the
structure of the Constitution, but it can only
modify the provisions thereof within the
framework of the original instrument for its
better effectuation. If the fundamentals
would be amenable to the ordinary process of
amendment with a special majority, the
argument proceeds, the institution of the
President can be abolished, the parliamentary
executive can be removed, the fundamental
rights can be abrogated, the concept of
federalism can be obliterated and in short the
sovereign democratic republic can be converted
into a totalitarian system of government.
There is considerable force in this argument."
But the passage. cited by him can hardly be availed of by
him for the reason that the amendment impugned by him, in
the light of what we have already stated about the nature of
the explanation to Art. 370 of our Constitution, does not
bring about any alteration either in the framework or the
fundamentals of the Jammu and Kashmir Constitution. ’Me
State Governor still continues to be the head of the
Government aided by a council of ministers, and the only
change effected is in his designation and the mode-
(1) [1967] 2S.C.R.762.
1028
of his appointment. It is not as if the State Government,
by such a change, is made irresponsible to the State
Legislature, or its fundamental character as a responsible
Government is altered. Just as a change in the designation
of the head of that Government was earlier brought about by
the introduction of the office of Sadar-i-Riyasat, so too a
change had been brought about in his designation from that
of Sadar-e-Riyasat to the Governor. That was necessitated
by reason of the Governor having been substituted in place
of Sadar-e-Riyasat. There is no question of such a change
being one in the character of that Government from a
democratic to a non-democratic system. A comprehensive
argument, which was raised in Golaknath’s case and with
reference to which the aforesaid observations were made, was
not raised before us, and therefore, we are not required at
present to go into it.
Mr. Garg drew our attention to cls. (aa) and (b) of art.
367(4), as substituted by C.O. 74 of 1965 [The Constitution
(Application to Jammu and Kashmir) Second Amendment Order,
1965]. We have already set them out above. He said that
this was amendment of art. 370(1) by the back-door and the
President could not exercise these powers under art. 370(1)
when he had not purported to exercise these powers under
art. 370(3). But, as we have already said, the explanation
had become otiose and references to the Sadar-i-Riyasat in
other parts of the Constitution had also become otiose.
There were two alternatives; first, either to leave the
courts to interpret the words Government of the State" and
give it its legal meaning, or secondly, to give the legal
meaning in st definition clause. What has been done is that
by adding cls. (aa) and (b) a definition is supplied which
the Courts would have in any event given. Therefore, we do
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not agree that there has been any amendment of art. 370(1)
by the back-door.
If we had regarded this as an amendment to art. 370(1), then
we would have to consider whether the amendatory powers had
been validly exercised or not, but as we have said, we are
not concerned with this question.
In conclusion we hold that the Amending Act was validly
assented to by the Governor.
Coming to the second point urged by Mr. Garg, we are unable
to appreciate how the Jammu and Kashmir Preventive Detention
(Amendment) Act, 1967 delegates any legislative powers to
anybody It confers executive powers on the detaining
authority by the insertion of the proviso to S. 8 to direct
that the person detained may be informed that it would be
against the public interest to communicate to him the
grounds on which the
1