Mohd. Maqbool Damnoo Vs. State of
Jammu and Kashmir [1972] INSC 8 (5 January 1972)
SIKRI, S.M. (CJ) 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, 1965Providing for appointment of Governor in place of Sadar-iRiyasat
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 Sadari-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originally enacted the Government of the State of Jammu and Kashmir meant the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
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 subclause (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 Sadari-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 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 Governor 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 D1027 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-iRiyasat 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 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.
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 Defor 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
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 maintenance, 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
Detention (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 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 theState of Jammu and Kashmir and the Jammu and Kashmir
Assembly had no power to abolish the office of the Sadar-iRiyasat. He further
urged that s. 147 cf, the Constitution of Jammu and Kashmir also contemplates
that the Sadar-iRiyasat shall exist and 'be the head of the State. He urged
that the only possible way of getting rid of the Sadar-iRiyasat 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;
(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 relates
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:(a) the form of the future
constitution of Jammu & Kashmir shall be wholly democratic, (b) the
institution of hereditary Ruler ship 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
:
" (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 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 Gover102 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, subclauses 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 situation where the
explanation ceased to operate. It had ceased to operate because there is no
longer any Sadar-iRiyasat 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 successorto
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
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 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.
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