Rehman Shagoo & Ors Vs. State of
Jammu and Kashmir  INSC 112 (10 September 1959)
DAS, SUDHI RANJAN (CJ) DAS, S.K.
CITATION: 1960 AIR 1 1960 SCR (1) 680
Constitution-Legislative competence of Ruler
of Jammu and Kashmir-ordinance Promulgated creating new offence of aiding the
enemy and prescribing trial by special Judges following special procedure--If
discriminatory-Whether Ordinance was legislation with respect to defence,
meaning of Repeal of law empowering Ruler to legislate-Whether Ordinance
survives--Cessation of emergency-If Ordinance occasioned by emergency also
lapses Jammu and Kashmir Constitution Act, S. 1996, s. 5-Enemy Agents
Ordinance, S. 2005 (J. K. Ordinance VIII Of S. 2005) Jammu and Kashmir Constitution (Amendment) Act, S. 2005 (J. K. XVII Of S. 2005)--jammu and Kashmir
General Clauses Act, s. 1977 (J. K. XX Of S. 1977), S. 16(b)-Constitution of
India, Art. 14 Part XVIII.
Under the Jammu and Kashmir Constitution Act
all powers, legislative, executive and judicial vested in the Ruler. On the
accession of the State to India on October 22, 1947, the powers in respect of
defence, external affairs and communications were ceded to India. Under S. 5 Of
the Constitution Act, the Ruler promulgated the Enemy Agents Ordinance, S.
2005, which provided for the trial and punishment of enemy agents and other
persons siding the enemy. The Ordinance provided for trial of offences by
Special judges and prescribed a procedure materially different from that
followed in the criminal Courts.
Section 5 of the Constitution Act was
repealed on November 17, 1951. The appellants were prosecuted under the
Ordinance for offences alleged to have been committed on June 27 and 28, 1957.
They contended (1) that the Ordinance violated Art. 14 of the Constitution of
India, (ii) that the Ruler had no legislative competence to issue the Ordinance
as it dealt with defence, (iii) that S5 of the 681 J. K. Constitution Act having
been repealed the Ordinance came to an end, (iv) that the Ordinance had lapsed
as the emergency on account of which it was issued had ceased, and (v) that the
Ordinance was void as it was inconsistent with the Emergency Provisions in Part
XVIII of the Constitution of India.
Held, that the Ordinance was intra vires,
valid and subsisting.
The Ordinance was riot discriminative and did
not violate Art. 14 Of the Constitution. In view of the circumstances existing
in the State, " enemy agents " and other persons aiding the I, enemy
" to whom the Ordinance applied formed a reasonable classification which
was founded on an intelligible differentia which distinguished such persons
from others and the differentia had a rational relation to the object of the Ordinance
which was to check subversion of the Government. Besides, if the Ordinance did
not make any classification of persons but only created an offence and provided
stringent procedure and punishment then there was no discrimination at all as
everybody who committed the offence was subjected to the same procedure.
Ram Krishna Dalmia v. Shri justice S. R.
Tendolkar,  S.C.R. 279 followed.
The Ordinance was not legislation with
respect to defence and was within the legislative competence of the Ruler. The
entry " defence " dealt only with the armed forces whether on land or
sea or in the air and the raising or maintenance of such forces and their
operations. The Ordinance dealt in the main with certain acts done with the
intent to aid the enemy though indirectly it was concerned with the operations
of the armed forces. In pith and substance the Ordinance was a law relating to
public order, criminal law and procedure and not defence.
Though s. 5 Of the Constitution Act was
repealed the Ordinance was saved by s. 6(b) of the Jammu and Kashmir General
Clauses Act. Section 6(b) saved, inter alia, " anything duly don(, "
under a repealed enactment and the Ordinance was a thing duly done " under
s. 5 of the Constitution Act.
The Ordinance was a permanent piece of
legislation. It came into existence because of an emergency but that was only
the occasion for passing it. Being a permanent law it could only be brought to
an end by means of repeal by competent authority.
The Emergency Provisions in Ch. XVIII of the
Constitution of India had nothing to do with the validity or otherwise of the
Ordinance and the question of any inconsistency between the Ordinance and these
provisions did not arise.
CRIMINAL APPELATE JURISDICTION: Criminal
Appeal No. 60 of 1958.
Appeal from the judgment and order dated the,
19th February 1958, of the Jammu and Kashmir High Court, in Writ Petition No.
53 of 1957.
682 R. V. S. Mani, for the appellants.
Jaswant Singh, Advocate-General for the State
of Jammu and Kashmir, G. S. Pathak and T. M. Sen for the respondent.
1959. September 10. The Judgment of the Court
was delivered by WANCHOO J.-This appeal, on a certificate granted under Art.
132 of the Constitution of India (hereinafter
called the Constitution) by the High Court of Jammu and Kashmir, raises the
constitutionality of the Enemy Agents Ordinance), No.
VIII of S. 2005 hereinafter called the
Ordinance), promulgated by His Highness under s. 5 of the Jammu and Kashmir
Constitution Act, S. 1996, (hereinafter called the Constitution-Act). The
appellants also made an application under Art. 132 (3) of the Constitution to
this Court for permission to urge other grounds taken by them in the High Court
besides those relating to the interpretation of the Constitution. We intimated
at the outset of the arguments that this application was being allowed and
learned counsel for the appellants was permitted to make his submissions on all
points raised in the High Court.
The appellants are being prosecuted before a
Special Court constituted under the Ordinance for offences under s. 3 of the
Ordinance, ss. 3, 4 and 5 of the Explosive Substances Act, (VI of 1908), s.
120-B of the Penal Code and s. 29 of the Public Security Act read with rr. 28
and 32 of the Rules there under. The incidents out of which this prosecution
arose took place on June 27 and 28, 1957.
The circumstances in which the Ordinance came
to be passed were these: Outside raiders began attacking Kashmir on October 22,
1947. The State acceded to India on October 26, 1947. It appears that the Enemy
Agents Ordinance, No. XIX of S. 2004 was enacted soon after in January 1948.
There was " cease-fire " on January 1, 1949 and the raids came to an
end. This was followed by the present Ordinance which became law an January 24,
1949. The preamble to the Ordinance says that an emergency had arisen as a
result of 683 wanton attacks by outside raiders and enemies of the State which
made it necessary to provide for the trial and punishment of enemy agents and
persons committing certain offences with intent to aid the enemy and as it was
necessary to amend Ordinance XIX of S. 2004, therefore, the Ordinance was
passed consolidating the law and repealing the earlier Ordinance.
The main contentions of the appellants in the
High Court were that the Ordinance was unconstitutional and void by reason of
the violation of Art. 14 of the Constitution and that His Highness had no
legislative competence to enact it and that in any case it came to an end when
s. 5 of the Constitution-Act was repealed in 1951.
The High Court was of the view that there was
a reasonable classification and that the classification was founded on an
intelligible differentia which distinguished persons or things that were
grouped together from those left out of the group and the differentia had a
rational relation with the object sought to be achieved by the Ordinance. It
therefore held that the Ordinance was not hit by Art. 14. It was further of the
view that His Highness had legislative competence to promulgate the Ordinance
when he did so and that when certain subjects were made over to the Government
of India by the Instrument of Accession, the State retained its powers to
legislate even on these subjects so long as the State law was not repugnant to
any law made by the Central Legislature, thus holding that there was concurrent
power in the State to legislate even on the subjects transferred to the
Government of India. Finally. the High Court held that the repeal of s. 5 of
the Constitution-Act did not result in the Ordinance coming to an end, as s. 6
of the Jammu and Kashmir General Clauses Act saved it. Therefore, dismissed the
writ petition filed by the appellants.
The main contentions of the appellants before
us are these :(1)The Ordinance is unconstitutional as it violates Art. 14 of
(2)There was no legislative competence in His
Highness to issue the Ordinance under s. 5 of the 684 Constitution Act, as His
Highness had executed the Instrument of Accession on October 26, 1947
surrendering his powers regarding Defence, Communications and External Affairs
to the Government of India and the Ordinance came under the head Defence
(3)Section 5 of the Constitution-Act was
repealed by an amending Act, No. XVII of S. 2005, passed on November 17, 1951,
and therefore the Ordinance also came to an end on the day s. 5 was repealed.
(4)The Ordinance has in any case lapsed as
the conditions under which it was enacted had become obsolete and did not exist
(5)The Ordinance was void as it was
inconsistent with Art.
352 of the Constitution and the Articles
Re. (1) The Ordinance defines " enemy
" and " enemy agent in s. 2.
Section 3 provides that whoever is an enemy
agent or, with intent to aid the enemy, does or attempts or conspires with any other
person to do any act which is designed or likely to give assistance to the
military or air operations of the enemy or to impede the military or air
operations of Indian forces or His Highness' forces or the forces of any Indian
State or to endanger life or is guilty of incendiarism shall be liable to
various punishments. Section 4 provides that any offence punishable under s. 3
shall be triable under this Ordinance and that where any other offence is
committed along with an offence under s. 3 which may be jointly tried under the
Code of Criminal Procedure, a special Judge trying the offence under s. 3 shall
also try the other offence in accordance with the procedure laid down by the
Section 5 provides for appointment and
jurisdiction of Special Judges. Section 6 gives power to the government of the
State to transfer proceedings from one Special Judge to another and provides
for the procedure to be followed by the Special Judge to whom a case is
transferred. Section 7 lays down that the procedure for trial of warrant cases
shall be followed by Special 685 Judges and no commitment proceedings would be
This action% also gives powers to Special
Judges in the matter of recording evidence, summoning witnesses and
adjournments and the Special Judge is deemed to be a Court of Session. Section
8 provides for sentences to be passed by the Special Judge. Section 9 provides
for power of review by a Judge of the High Court, designated by the Government
and the decision of such Judge is made final.
Section 10 gives power to the Special Judge
and the Reviewing Judge to hear proceedings in camera if it is expedient in the
interest of public safety or the defence of the State so to do. Section 11 days
down that an accused person triable under the Ordinance may be defended by a'
pleader if the Special Judge or the Reviewing Judge grants permission in this
behalf and also gives power to the Special Judge or the Reviewing Judge to
appoint a pleader for an accused who has not engaged a pleader himself.
Section 12 provides for a special rule of
evidence empowering the Special Judge to admit certain statements recorded by a
magistrate, when the person who made them is dead or cannot be found or is
incapable of giving evidence.
Section 13 provides for powers to deal with a
situation arising out of intransigent conduct of accused persons during the
course of trial. Section 14 takes away the power of all courts to interfere
with the proceedings or orders of the Special Judge or to transfer any case
pending before him or to make any order under s. 491 of the Code of Criminal
Procedure. Section 15 prohibits the giving of copies of records of any case
before a Special Judge to anyone except to an accused or his pleader and makes
it punishable for such accused or pleader to show the copy to any other person
or to divulge its contents to anybody except in the course of proceedings for
the purpose of which it was obtained. It further provides for the return of the
copies within ten days after the conclusion of the proceedings before the
Special Judge. Section 16 provides for the application of the Code of Criminal
Procedure or any other law for the time being in force to proceedings under the
Ordinance in so far as they are not inconsistent with its 87 686 provisions.
Section 17 makes disclosure of information prohibited under s. 15 punishable.
Section 18 gives power to the Government to make rules necessary to carry into
effect the purposes of the Ordinance. Section 19. repeals the Enemy Agents
Ordinance, XlX of S. 2004, but provides that all rules made, orders issued,
prosecution and action taken and punishment awarded under the repealed
Ordinance shall be deemed to have been made, issued, taken and awarded under
It will be clear from this analysis of the
provisions of the Ordinance that the procedure under the Ordinance is in
material respects different from the ordinary procedure of Criminal Courts
dealing with offences. The contention of the appellants is that this amounts to
discrimination and therefore the Ordinance is void and unconstitutional as it
violates Art. 14 of the Constitution.
The provisions of Art. 14 of the Constitution
have come up for discussion before this Court in a number of cases. It is now
well established that " while Art. 14 forbids class legislation, it does
not forbid reasonable classification for the purposes of legislation. In order,
however, to pass the test of permissible classification two conditions must be
fulfilled, namely (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and, (ii) that differentia must have
a rational relation to the object sought to be achieved by the statute in
question. The classification may be founded on different bases, namely,
geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification and
the object of the Act under consideration. It is also well established by the
decisions of this Court that Art. 14 condemns discrimination not only by a
substantive law but also by a law of procedure." (see Sri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar (1)). We have, therefore, to see whether
there is reasonable classification for the purposes of the (1)  S.C.R.
687 Ordinance. Now the Ordinance was passed
in January 1949 soon after the cease-fire. But though the attack by the outside
raiders and enemies of the State had come to an end it was felt that conditions
were such that the emergency continued and it was necessary to provide for
trial and punishment of enemy agents and persons committing certain offences
with intent to aid the enemy by a special procedure which was enacted in the
Ordinance. With that end in view, an "enemy" was defined to mean and
include "any person directly or indirectly, participating or assisting in
the campaign recently undertaken by raiders from outside in subverting the
Government established by law in the State." 'An " enemy agent "
was defined as meaning " a person, not operating as a member of enemy
armed force, who is employed by, or works for or acts on instructions received
from the enemy." It is clear, therefore, that " enemy " and
" enemy agent " are a clearly defined class of persons and would give
rise to a reasonable classification for the purpose of the Ordinance. Section 3
provides for punishment of a person who is an enemy agent or who does certain
things with intent to aid the enemy. There can be no doubt in the circumstances
existing in the State then and now that the classification is reasonable and is
founded on an intelligible differentia which distinguished persons brought
under the Ordinance from others. There is also no doubt that the differentia
had a rational relation to the object sought to be achieved by the Ordinance.
There had recently been a campaign to subvert the government established by law
in the State and though the actual raids were over, the danger of subversion of
the government was not over and the threat from those who intended to aid the
In these circumstances the Ordinance was
enacted and provided a special procedure for the trial of enemy agents or those
who did certain things with intent to aid the enemy, the object of such persons
being to subvert the government established bylaw in the State. If it is said
that the Ordinance does not purport to make any classification of persons at
all but only creates an offence and 688 provides a stringent procedure -for the
punishment of that offence, then there is no discrimination at all, for anybody
who commits that offence is subjected to the drastic procedure. It has also to
be remembered that in order to repel the charge of discrimination the permissible
classification need not be of persons only. Certain offences may be so heinous
or serious that they may in certain circumstances be treated as a class and
tried in a different way. The offence created by s. 3 of the Ordinance is not
found as such in the Penal Code but is a new offence of an aggravated kind
which may in the circumstances prevailing in the State mentioned above be
treated as different from the ordinary offences; and may well be dealt with by
a drastic procedure without encountering the charge of violation of the. equal
protection clause. We are, therefore, of opinion that on the principles laid
down by this Court in the large number of cases summarised in the Dalmia case
(1), the Ordinance cannot be said to be discriminatory and, therefore,
violative of Art. 14 of the Constitution. The contention under this head on the
constitutionality of the Ordinance therefore must be rejected.
The Ordinance purports to have been
promulgated under s. 5 of the Constitution-Act, which declared that all powers,
legislative, executive and judicial, in relation to the State and its
government, were always inherent in and possessed and retained by His Highness
and nothing in the Act was to affect or deemed to have affected the right and
prerogative of His Highness to make laws, and issue proclamations, orders and
ordinances by virtue of his inherent authority. It is, however, submitted that
on account of the accession of the State to India on October 26, 1947, certain
matters were surrendered to the Government of India and therefore His Highness
had no power left to legislate on matters so surrendered. These matters are to
be found in the Schedule to the Instrument of Accession (2).
This Schedule consists of 20 items, grouped
under (1) [19591 S.C.R. 279.
(2) Appendix VII of the White Paper on Indian
States, p. 165.
689 four heads: (A) Defence, (B) External
Affairs, (C) Communications and (D) Ancillary. We are not here concerned with
heads (B) and (C) and need only consider the items under (A) and (D). There are
four items under the head " Defence ", namely1.The naval, military
and air forces of the Dominion and any other armed force raised or maintained
by the Dominion, any armed forces, including forces, raised or maintained by an
acceding State, which are attached to, or operating with, any of the armed
forces of the Dominion.
2.Naval, military and air force works,
administration of cantonment areas.
3. Arms, fire-arms, ammunition.
And there are four items under the head
" Ancillary namely1.Elections to the Dominion Legislature, subject to the
provisions of the Act and of any Order made there under.
2. Offences against laws with respect to any
of the aforesaid matters.
3.Inquiries and statistics for the purposes
of any of the aforesaid matters.
4.Jurisdiction and powers of all courts with
respect to any of the aforesaid matters, but except with the consent of the
Ruler of the acceding State, not so as to confer any jurisdiction or powers
upon any courts other than courts ordinarily exercising jurisdiction in or in
relation to that State.
The contention on behalf of the appellants is
that the provisions of the Ordinance were in particular covered by item (1)
under the head " Defence ". It is also urged that the High Court was not
correct in holding that there was concurrent jurisdiction in the State as well
as the Central Legislature even with respect to items in the Schedule and that
on a correct interpretation of the Instrument of Accession, the Central
Legislature alone had power to legislate with respect to the matters in the
Schedule. We do not think it necessary to decide in this case whether the State
had concurrent 690 powers to legislate on matters covered by the Schedule and
shall proceed on the assumption that the Central Legislature alone had the
power to legislate on these matters. The question then which immediately arises
is whether the Ordinance is covered by item (1) under the head " Defence
The other items either under the head " Defence or under the head "
Ancillary are immaterial for this purpose. If the Ordinance is not covered by
item (1) under the head" Defence ", it would then be within the
competence of the State Legislature or of His Highness to promulgate it, for
all other matters besides those covered by the twenty items in the Schedule in
any case remained with the State. Item (1) under the head " Defence "
deals with the naval, military and air forces of the Dominion and any other
armed forces raised or maintained by the Dominion and includes any armed forces
including those raised or maintained by any acceding State, which are attached
to, or operating with any armed forces of the Dominion. Howsoever wide an
interpretation is given to this entry it will be seen that it deals only with
the armed forces whether on land or sea or in the air and the raising or
maintenance of such forces and their operations. The Ordinance has, in our
opinion, nothing to do with the matters covered by this entry. It is true that
it defines " enemy " and " enemy agent " and creates
offences with reference to certain acts done with intent to aid the enemy
including giving of assistance to the military or -air operations of the enemy
or impeding the military or air operations of Indian forces or His Highness'
forces or the forces of any Indian State. But it is only indirectly concerned
with the operations of the armed forces and its main purpose is to deal with
persons who with intent to aid the enemy commit certain acts including
assistance to the military or air operations of the enemy or impediment to the
military or air operations of the Indian armed forces.
Besides this reference to military or air
operations, the rest of the provisions of the Act has nothing to do with the
armed forces and if one looks at the pith and substance of the Ordinance it
will be found that it deals with persons who are concerned with the 691
subversion of the government established by law by becoming enemy agents or
doing certain acts with intent to aid the enemy. In pith and substance therefore,
the Ordinance deals with public order and criminal law and procedure; the mere
fact that there is an indirect impact on armed forces in s.
3 of the Ordinance will not make it in pith
and substance a law covered by item (1) under the head "Defence" in
the Schedule. We are therefore of opinion that there is no force in the
contention that the Ordinance was beyond the legislative competence of His
Highness because certain matters were ceded in the Instrument of Accession
dated October 26, 1947, to the Government of India. This contention must also
The contention is that as s. 5 of the
Constitution-Act was repealed on November 17, 1951, the Ordinance which is
stated to have been passed under that section also came to an end.
It is enough to say that there is no force in
Clause (b) of s. 6 of the Jammu and Kashmir
General Clauses Act, (J.K.XX of S. 1977), clearly saves the Ordinance. It is as
follows:" Where this Act, or any Act made after the commencement of this
Act, repeals any enactment hitherto made or hereafter to be made, then, unless
a different intention appears, the repeal shall not ....
(b) affect the previous operation of any
enactment so repealed or anything duly done or suffered there under;" It
will be clear that the promulgation of the Ordinance was a "thing duly
done" under s. 5 of the Constitution Act and the repeal of s. 5 of the
Constitution-Act would thus leave the Ordinance which was promulgated there under
entirely unaffected. The repeal of s. 5 can only mean the withdrawal of that
legislative power on and from the date of repeal.
Anything done while the power subsisted
cannot be affected by such repeal. A law enacted under a Constitution-Act does
not lose its vitality and would continue even though there may be repeal of
parts of the Constitution-Act under which it was enacted as long as the law 692
is not inconsistent with the Constitution-Act as it emerges after the amendment
and repeal of certain provisions thereof. It derives its binding force from the
fact that it was within the competence of the legislature when it was passed
and being permanent would continue till amended or repealed under the amended
Constitution-Act. We are, therefore, of opinion that the Ordinance did not come
to an end on the repeal of s. 5 of the Constitution-Act and remained a valid
piece of legislation in view of s. 6 (b) of the Jammu and Kashmir General
It is urged that the conditions in the State
have changed considerably since 1949 and therefore the Ordinance must be held
to have lapsed. It is enough to say that there is nothing in this contention,
even assuming that conditions in the State are not now exactly the same as they
were in 1949.
The Ordinance was a permanent piece of
legislation. It is true that it came into existence because of an emergency,
but that was only the occasion for passing the Ordinance.
The Ordinance, however, tries to reach an
evil of deeper roots, an evil which cannot be said to have ceased to exist,
viz., subversion of the government established by law in the State in
conjunction with the enemies of the State. Being a permanent law, it can only
be brought to an end by means of repeal by competent authority. It is not the
case of the appellants that the Ordinance has been repealed by any competent
authority. It must therefore be held to be in force till such repeal even if
the conditions now are assumed not to be exactly the same as in 1949. This
contention therefore also fails.
It is urged that the Ordinance was unconstitutional
because it is inconsistent with Art. 352 and the subsequent Articles. We must
say that Art. 352 and the subsequent Articles in Part XVIII of the Constitution
relating to Emergency Provisions have nothing whatsoever to do with the
validity or otherwise of the Ordinance. We have been unable to understand how
there can be any inconsistency between the Ordinance 693 and the provisions
contained in Part XVIII of the Constitution. This contention also fails.
It now remains to notice three points that
were urged during the course of arguments on behalf of the appellants, namely,
(i) s. 4 (1) of the Ordinance is hit by Art. 20 (1) of the Constitution, (ii)
s. 11 (1) is hit by Art. 22 (1) of the Constitution, and (iii) the Special
Judge has no jurisdiction to try an offence under the Explosive Substances Act.
Apart from the fact that these points not having been raised by the appellants
in their writ petition or urged before the High Court, we should be reluctant
to permit them to raise these points for the first time in this Court, we may,
in passing, point out that the offences for which the appellants are being
prosecuted are said to have taken place in June 1957 and that they have been
allowed to engage lawyers of their choice. They can therefore have no grievance
so far as the first two points are concerned and we leave them to be decided in
a case where there is grievance. There is no substance in the third point.
There is no force therefore in this appeal
and it is hereby dismissed.