MOHD. MAQBOOL DAMNOO versus STATE OF JAMMU AND KASHMIR

MC)HD. MAQBOOL DAMNOO

.STATE OF JAMi\IU AND KASHMIR January, 5, 197'<.--

[S. M. SIKRI, C.J., J. M. SHELAT, 1. D. DUA, H. R. KHANNA AND G. K. MITTER, JJ.]

Com•1itu1ion of Jammu and KWihmir (olh Amendment) Act, 1965-l'ruvullng }or appointnU.tnt of <iovernor in pJa,:e uf :>adar-i-J:{iyc.sat_J Validity .of amendment in view o} /;,xpJa11u11on to Amel<' 3700) of t;onslltllltWn oj lntlia still re)ernng to Sadar-i~Kiyasat as Head of State-Assent of Goyernor of Ja1nnzu anct Kashuiir 10 Preventive JJetention \Amendment) Ac/, 1%7 wlle1/1er resul<s in rulid law-Amendment of Art. 367 Uf Cu11stitutio11 Of India tu tile enect I/Jal reference to Sadar-i-'Riyasat shall be read as re/eren1.:e to Goveruur whc:ther amounts to a1nend-mem of A:rl. 370\1) by backdoor-l'roviso to sectio11 8(1) of De1en1ion Act WIJef/ier suiJers jrv11i exce~·sive delegalivn-Proviso whether bad be-cause it cunftcts with section 103 of Constitution of Jammu and Kaslunir-Whether detention order violates .Art. 21 and 22 of Com1it11tio11-Whether detention bad b_ecause detaining autliority had noi applied its mind-Whether order of detention served and executed in accordanc:e with law.

Under the Explanation to Article 370(1) as originally enac,'ted the Gowrnment of the State of Jammu and Kashmir meant the person for the time being reco&nised by the President of 1ndia as Maharaja of Jammu and Kashmir acting on the advice of his Council of Ministers. In 1952 the Constituent Assembly oi the State resolved that the Maharaja ohall be replaced by an elected head of the State designated as the Sadar-i-Riyasat. Conse'luential ahangcs were made in Article 370(i) of the Constitution of India and in the Explanation to the Arlicle 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 o1 Jammu and Kashmir acting on the advice of the Council of Ministers. By the Constitution. of Jammu and Kashmir (6th Amendment Act) 1965 which receiyed the assent of the Sadar-i-Riyasat the Constitution of Jammu and Kashmir provided for the appointment of 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 J ammu and Kashmir and reference to the Government of the said St'lte shall be constrncd as including references to the Gover-nor of J ammu and Kashn1ir acting on the ad...-ice of his Council of Minist-ers. l~he Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 (J & K Act 8 of 1967) alter being passed bv the Legislative Assembly _received the assent of the Governor of Jammu anJ Kashmir. The petitioner was detained under the provisions of this Act by the order of the District Magistrate .dated June 24. 1970. In writ petition under article 32 of the Constitution the petitim"r contended (i) that the hmmu and Kashmir Preventive Detention (Amendment) Act. 1967 was invalid as it was not assented to by thr.! Sadar-i-Riyasat \Vho alone was mentioned as Head of the State in the Explanation to Article 370( I); (ii) that the proviso inserted by "'ction 4( 2) in sub-section (I) of Section 8 of the Detention Act was bad because it suffcrred from excessi\"e delegation; (iii) that the<e had been violation of Articles 21 and 22 of the Constitu-tion: (iv) that '3t any rate. the proviso was bad because it conflicted with Section !03 of the Constitution of Jammu and Kashmir; (v) that the

M. M. DAMNOO V. J. & K. STATE

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 o'f Article 370 sub-clause (1) (b) and ( d) is the peo,ssity of concurrence of the State Government or t~e consultation of the State Government. What the State Government rs at particular time bas to be determined in the context of the Constitu-B tion of Jammu and Kashmir.. The Explanation did no more than recog-nise the constitutional provision as it existed on that d".lte and the Ex-planation 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 J and Article 370(1) (dJ place no limitation on the framing and amendment of the Constitution of Jammu and Kashmir. If there is 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 sec'tion 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 amend- 41' ed 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 clown by the Jammu and Kashmir Constitution. [1026 B-C]

Sampar Prakal'h v. State of Jammu and Kashmir, [1969] 2 S.C.R. 365; re1erred 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. i47 and one of the provisions continued in. this section is that the assent 1:0 the amendment of the Constitµtion must be given by the Sadar-i-Riyasat, cannot be accepted. The Constitution itself contains section 18 t whicl{ provides that unless the context otherwise requires the General Clauses Act, Samvat 1977 shall applv for the. interpretation of this Consti-tutioji as it applies for the interpretation of the Act of the State legislature, By "irtue of this Act the Governor is the rnco'8sor to the Sadar-i-Riyasat. He -would be entitled to exercise all the powers of the Sad".lf-i-Riyasat. Thtfre is no doubt that he is the suco~ssor. It is. quite clear from section's 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-- i:ror. Sub-section (2) of section 26 as amended vests the executive powers gf the State in hirrt The Governor is not elected as was the Sadar-i-.· Riyasat, but tm mode of appointment would not make him anv the Jess · successor to the Sadar-i-Riyasat. Both are heads of the State. [1026 D-1027 CJ

(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 responsible government is altered. Just as change in the designation of the head of the government was earlier brought about b<\< the introduc-tion o~ the. offic~ of .Saclar-i-Riyasat, so too change had been brought about m hrs de~rgna!ton, from that of Sadar-i-Riyasat to the Governor. That was necessitated bv reason of the Governor having been substituted

[1972 J 2 S.C.R.

in place of Sadar-i-Riyasat. There is no question of such ~hange being one in the ·character of that government from democratic to non· democratic system. [1027 G-1028 BJ

Golaknath v. State of Pun;ab, [1967J 2 S.C.R. 762; distinguished.

(e) Clauses (~a) and (bl of article 367(4) as substituted by C.O. 74 of 1965 (The Constitution Application to Jammu and K .. hmir) 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 bad 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 definition clause. What bas been done is that by adding clauses (aa) and (b) definition is supplied which th., Courts would have in any event given. [1028 D-EJ

Accordingly, it must held that the amendin2 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 con· fers 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 detain· ing authority chooses to so direct it cannot be said that the detainin.2 authority is exercising any legislative power. [1028 H-1029 A]

(3) The detention cpuld not be said to be in violation of Articles 21 and 22 of the Constitution because they were excluded by Article 35(c) of the Constitution. [I 029 BJ

( 4) The order expressly directed that the petitioner be detained in Central Jail Srinagar and copy of the Order was endorsed to the Deputy Superintendent of Police, as required by S. 4 of the Detention Act. Section 75(i) Cr. P.C. !lad been complied with as the order was in Miting and had been signed by the detaining authority. Section 76 Cr. P.C. had ne application to the case because it applies only when the Court directs that security be taken. f1029 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 ri~ht 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 can-not 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 ht appropriate case to produce before it the grounds of detention and other material in order to satisfy itself that the detenp was being detained in accordance with law. From the file produced before the High Court bv 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 authoritv had not applied its mind to the facts of the case. [1029 F-1030 G] ·

Prem Chand Gar11 v. Excise Commissioner U.P., [1963] Suppl. l S.C.R. ~85; A: K. Gopa/an 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 writ in the nature of habeas corpus.

R. K. Garg, S. C. Agarwal, A. K. Gupta and R. K. Jain for the petitioner. ' Ishwar Si1agh Bakshi, Advocate-General for the State of Jammu and Kashmir, M. C. Chag/a, R. N. Sachthey and S. K. Dho/akia, for the respondent. .

!lliren De- for the Attorney-General for India; R. N. Sachthev and Ram Panjwani, Advocates, with him. ·

The Judgment of the Court was delivered by

Sikri, C.1. This is petition under Art. 32 of the Constitution challenging the detention of the petitioner under the J ammu and Kashmir Preventive Detention Act, 1964 (J. & K. Act XIIl of 1964 )-hereinafter reierred to as the Act.

On June 24, 1970, th'e District Magistrate of Baramula pass-ed the impugned detention order in the following terms :

"OFFICE OF THE DISTRICT BARAMULLA

MAGISTRATE,

No. PDA/IMB/81 Dated 24-6-1970

ORDER

Whereas I, S. S. Rizvi, District Magistrate, Baramula, ain satisfied that with view to preventing Mohammad Maqb!ool 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 neces-sary 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 C~n­tral Jail Srinagar, subject to such conditions as to mam-

tenance, discipline and punishment for breaches of dis-cipli:ne 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. Sbri Abdul Majid Lone. Dy. S.P. Sopore in duplicate for execution ol the order as provided by sec-tion 4 of the J & K Preventive Deiention 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 peti-tioner be informed that it was against the public interest to dis-close 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 tbe order had been. made, and other particulars b~aring 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 th}s application be treated as writ petition under art. 32 of the Constituiton 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 foi:mal writ petition through an advocate on July 27, 1971. The State agam filed an affidavit in reply. On an application having been made for permitting to raise additional grounds the .Court allowed the petitioner to file comprehensive amended petition. On October 9, 1971, thi: amended writ petition was filed ltll this .Court. The State filed ·another affidavit in reply.

Mr. Garg, who appeared on behalf of the petitioner, raised the following points before us :

( 1) that the J ammu & 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-i-Riyasat;

(2) that the proviso inserted by s. 4(2) in sub-s. ( 1) of s. 8 is bad because it suffers from excessive dele-gation;

(3) there has been violation oi Art. 21 and Art. 22 of the Constitution;

( 4) at any rate, the proviso is bad because it con-flicts with s. 103 of the Cqnstitution of J ammu & Kashmir;

( 5) that the detention order is bad because the de-taining authority has not applied its mind; and

( 6) that the order of detention is bad because it was not served or execu'ted in accordance with law.

ln support of his first contention the learned counsel urged that under Art. 3 70 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 th>~ 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. 14 7 of the Constitution of Jammu and Kashmir also con-templates 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 Gover-nor in place of the Sadar-i-Riyasat, and therefore, the Govemor was competent to give assent to the Jammu and Kashmir Preven-tive Detention (Amendment) Act, 1967.

In order to appreciate the points raised before us it is neces-sary to give brief history of the various constitutional changes which took place in the State of Jammu and Kashmir. H. H.

the Maharaja of Jammu & Kashmir, in letter dated Octo~r 26, 1947, addressed to His Excellency the Governor-General of India, offered to accede to the Dominion of India.. On October 27, 194 7, tlie 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 pro-clamation forming responsible Govt. of Council of Ministers headed by the Prime Minister which was to take steps to constitute National Assembly based on adult franchise to form separate Constitution for the State. On June 20, 1949 Maharaja Sir Hari Singh entrusted his legjsJative, executive and judicial functions to his son, Yuvraj Karatll Singh for temporary period~

On November 25, 1949 proclamation was issued by Yuvraj Karan Singh directing that the Constitution of India to be adopt-ed by the Constituent Assembly of India be adopted by the Con-stituent 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

1md 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 Const:itution,-

(a) the provision of article 23 8 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of ~arliament 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 Presiden~ 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 res-pect to which the Dominion Legislature may make laws for tha~ 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.

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 Maharaj of J ammu and Kas\lmir 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 exc~ptions and modifications as the Presi-dent may by order specify :

Provided that no such order which relates to the matters specified in the Instrument of Acces-sion of the Sta~ referred to in paragraph (i) of sub-clause (b) shall be issued except in consulta-tion 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 Con-stituent 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 foreg0ing 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 Assem-bly of the State referred to in clause (2) shall be necessary before the President issues such notification.

On January 26, 1950 the Constitution (Application to Jammu and Kashmir) Order, 1950 was made by the President. On April ~O, 1_95 L the Maharaj ?f Jammu & Kashmir issued proclama-tion m pursuance of which the Constituent Assembly of Jammu and Kashmir was convened on November 5, 1951. On June 10,

1952 the Basic Principles Committee of Jammu and Kaslun!r Constituent Assembly submitted 1Jhe interim report to the Consti-tuent Assembly and recommended that :-

(a) the form of the future constitution of Jammu & Kashmir shall be wholly democratic,

( b) the· institution of hereditary Rulership shall be termi-nated, and

( c) the office of the Head of .the State shall be elective.

The <;:onstituent Assembly by resolution adopted these re-commendations. The following part of the resolution is rele".ant :

"Now, therefore, in pursuance of the resolution,

dated the 12th June, 1952, and having considered the report of the Drafting Committee, this Assembly re-solves:

1. (i) that the Head of the State shall be tihe 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 term. of five years from the date he .enters upon his office;

Provided that he shall, notwithstanding the expiration .of his 11erm, contim,1e 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 Sadat-i-Riyasat.

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 Presidenn, on the recommendation of the Constituent Assembly of the State of J arnmu and Kashmir, declared that, as from the 17th day of Novem-ber, 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.-F or the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommenda-tion 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 concur-rence 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 J ammu & Kashmir, whether before or after the commencement of the ConstiliUtion (Application to Jammu and Kashmir) Order. 1954, shall be void on the ground that it is in-consistent 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 th7 commencement of the said Qrder, except as respects thmgs 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 Jarnmu and Kashmir as they apply in relation to Rajpramukh, but without prejudice to the provisions of the Constitution of that ~~" .

To art. 367 was added the following clause, namely :-"( 4) For the purposes of this Constitution as · it applies in relation to rhe State of Jammu and Kashmir-

( a) reference to this Constitution or to the provi-sions thereof shall be construed as references to the Constitution or the provisions thereof as applied in re-lation to the said State;

(b) references ·to the Govemment of the said State

shall be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Minis-ters ......... "

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 t'he Union List were modified, entry 97 was omitted, and the State List and the Con-current 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 c~me 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 Jarnmu 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 11he Govern-ment 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 cl. (4) of art. 367 the following clauses were inserted :

"( aa) references to the person for the time being re-

cognised 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 Gov~-

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 cons-trued as including references to the Sadar-i-Riyasat act-ing 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 .Attorney-General this is mere definition inserted for the purpose of the article in accordance with the con-stiWtional conditions prevailing at that time. According to Mr. Garg, this is the king"pin of the whole relationship between the Vnion of India and the State of Jammu and Kashmir. According to him neither the Jammu and Kashmir Assembly nor the Presi-dent were competent to impair the functioning of the Sadar-i-Rivasat and insofar as the Constitution of Jammu and Kashmir (Si°xth 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. 368 and art. 370{3) or fresh Constituent Assembly has to be conven-ed 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 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 Govern-ment or the consultation of the State Government. What the Stak Government is at particular time has to be determined in the context of the Constitution of Jammu and Kashmir. The Ex-planation did no more t;han 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 consti-tutional position in the Statll.

We have, therefore, no difficulty in holding that art. 370(l)(b) and art. 370(1)(d) place no limitation on the framing or amend-ment of the Constitution of Jammu anrl Kashmir. Tf there is 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

(I) [19681 2 S.C.R.365.

expressly laid down by this Court in the decision just referred to. We are not concerned with the question whether art. .3 70 ( 3) can now be utilised to ameJJd the provisions of art. 370(1) and (2), and therefore we do not ~press 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-i-Riyasat of Jammu and Kashmir. If the definition con-tained 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 sti-pulated in l!rt. 370 and perform other functions laid down by the .Jam mu 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. 14 7 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. 14 7 provides that "an amendment of this Constitution may be initiated only by the introduction of Bill for the purpose in the Legislative Assembly, and when the Bill is passed in each House by 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 Constitu- . tion 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 it applies for the interpretation <:Jf an Act of the State Legislature." The General Clauses. Act contains s. 18 which reads :

"18. In any Act made after the commencement of this Act, it shall be sufficient, for the purpose of indicat-ing the relation of law to the successors of .any func-tionaries or of corporations having perpetual succession. to express its relation to the functionaries or corpora-tions."

By virtue of this Act, if 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. 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

M. M. DAMNOO v. J, & K. STATE (Sikri, C.J.)

State shall be vested in the Sadar-i-Riyasat and shall be exercised by him either directly or through officers sub-ordinate to him in accordance with this Constitution .. ,, ....

Section 27 provided for the election of the Sadar-i-Riyasat aud s. 28 for the term of office. It is quite clear from these provi-sions that the Sadar-i-Riyasat is really the name given to the head of the State. Under the State Constitution as amended the Head of 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-i-Rivasat. ·but the mode of appointment would not make him any th~ less 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 Comtitution of Jammu & Kashmir was bad. In support of his argument. he relied on the following passage in Golaknath v. State of Punjab(') :

"The next argument is based upon the expression "amendment" in art. 368 of the Constitution and it is contended that the said expression has positive and 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 special majority, the argument proceeds, the institu-tion of the President can be abolished, the parliamen-Wry 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 totalitarian system of go\ern'l'lent. There is considerable force in this argu-ment." "

Bu: the passage cited by him can hardly be availed of bv him for the re:i[0].on that the amendment impugned by him, in the light of what we have already stated about the nature of the explanation t? Art: 370. of our Constitution, does not bring about any altera-tion either m the framework or the fundamentals of the Jammu and Kashmir Constitution. The State Governor still continues to be the head of the Government aided by council of ministers, and the only change effected is in his designation and the mode

(J) [1967! 2 S.C.R. 762.

-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 responsible Government is alterad. Just as change m the designation of the head of that Govern-ment was earlier brought about by the introduction of the office -0f Sadar-i-Riyasat, so too 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 quesfion of such change being one in the character of that Government from democratic to non-dem9cratic system. comprehen-sive argument, which was raised in Golaknath's case and with reforence 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 els. (aa) and (b) o.f 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. 3 70 ( 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 definition clause. What has been done is that by adding els. ( aa) and (b) definition is supplied which the Courts would have in any event given. There-fore, 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. 3 70 ( 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 wh.ich the

<' [H ]

detention order had been made. When the detaining authority chooses so to direct, it cannot be said that the detaining authority is exercising any legislative power. In view of this matter it is not necessary to refer to various authorities of this Court where the question of delegation or excessive delegation of legislative powers has been considered.

It is also not necessary to dwell on the third point, namely, violation of arts. 21 and 22 of the Constitution because it is clear that they are excluded by art. 35 ( c) of the Constitution.

Regarding the sixth point that the order of detention was not served or executed in accordance with law, we are unable to find any force in this point. The order expressly directed that the petitioner be detained in the Central jail, Srinagar, and the copy · of the order was endorsed to Shri Abdul Majid Lone, Dy. S.P., Sopore, in duplicate, for execution of the order, as provided by s. 4 of the J ammu and Kashmir Preventive Detention Act. It was urged by Mr. Garg that there is no endorsement below this note, but we are unable to see that the law requires that every copy forwarded should be signed by the detaining authority him-self. There is no doubt that the order was executed as directed.It was suggested thats. 75(1) of the Criminal Procedure Code was violated, but it seems to us that s. 75 (1) has been clearly complied with inasmuch as the detention order is in writ-ing and has been signed by the detaining authority. Reference was made to s. 76, Cr. P.C., but this provision has no application. It only applies when the Court directs that security be takem.

The fourth point is that the proviso to s. 8 inserted by ihe Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 is bad because it is in conflict withs. 103 of the Jammu and Kashmir Constitution. It is quite clear that the legislature has no right to directly amend s. 103, nor has it the power to make the exercise by the High Court of its jurisdiction under s. 103 illusory. (See Prem Chand Garg v. Excise Commissioner U.P.('), where this Court struck down r. 12, 0. XXXV Suprem~ Court Rules on the ground that it retarded the assertion or vindi-cation of the fundamental rights under art. 32.) Mr. Garg said that it was impossible for the detenu to satisfy the · Court that ~e had 1?een unlawfully detained because he had been given no Jllformation whatsoever as to the reasons for his detention and to tell him that he had been detained to prevent him from ~cting in any manner prejudicial to the security of the State is to tell him next to nothing, and it may be that the real grounds on which he had been detained have no relation to the security of the State. There is some force in what Mr. Garg contends, but

we are unable to hold that this 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. It should be remem-ben~d that in A. K. Gopa,/.an v. The State of Madras(!) s. 14 of the Preventive Detention Act was struck down. Kania, CJ., observed on this point at page 130 :

"By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being informed, either by statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceed-ings or report of the advisory board which may be declared confidential. It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not. I do not mean whether the grounds are suffi. cient or not. It even prevents the Court from ascer-taining whether the alleged grounds of detention have anything to do with the circo1mstances or class or classes of cases mentioned in section 12 (1 )(a) or (b)."

But fortunately there is no similar provision in this Act and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to pro-duce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law. If it were not so, we would have difficulty in sustaining the proviso.

We have looked into the file produced before us by the State and we are satisfied that the grounds on which the detenu has been detained have relevance to the security of the State. and with this also fails the fifth point raised by Mr. Garg that the detaining authority had not applied its mind to the facts of the case.

In the result the petition foils and is dismissed

Petition dismissed.