Kundan Lal vs Distirict Magistrate and Another

This is a petition under Article 32(2-A) of the Constitution of India as applied to the State of Jammu and Kashmir read with Section 103 of the

Constitution of the State and Section 491, Criminal Procedure Code for issue of writ of Habeas Corpus directing the release from detention of the

petitioner.

The material facts leading to this petition are:

Pursuant to Order No. 13/PDA/69 dated 25-7-1969 issued u/s 3(2) read with Section 5 of the J. and K. Preventive Detention Act, 1964

(hereinafter referred to as 'the Act'), by the District Magistrate, Poonch, respondent No. 1 therein, the petitioner was arrested by the police on 29-

7-1969 at 7-15 A.M. and was detained in the Central Jail, Jammu, with a view to preventing him from acting in a manner prejudicial to the security

of the State, the maintenance of public order and essential supplies. On the date of the passing of the aforesaid order of detention the District

Magistrate also made an order u/s 8 read with Section 13-A of the Act directing that the petitioner be informed that it was against public interest to

disclose to him the grounds on which his detention order was made. The order of detention was approved by the Government of Jammu and

Kashmir's Order No. ISD-275-A of 1969 dated 14-8-1969. On 1-9-1969 the petitioner filed a writ petition in this Court challenging the validity

of his detention. During the pendency of the petition, the aforesaid detention order was revoked by the Government vide its Order No. ISD-304

of 1969 dated .19-9-1969 on account of some ""technical defect"" u/s 14(1) of the Act. On the same date a fresh Order No. ISD-305 of 1969

directing the detention of the petitioner in the Additional Police Lock Up attached to Saddar Police Station Jammu was issued by the Government

u/s 3(1)(a)(i) of the Act with a view to preventing him from acting in any manner prejudicial to the security of the State. By its No. 306 of 1969 of

even date the Government also made an order u/s 8 read with Section 13-A of the Act informing the petitioner that it was against public interest to

disclose the facts and to communicate to him the grounds on which his detention had been made.

On 16-10-1969 the petitioner filed an amended petition challenging the fresh order of his detention averring that the order was illegal and void

as it had been passed mala, fide with ulterior motives, that the detention had been ordered without sufficient reasons and satisfaction as to the

existence of facts warranting his detention, that the detention, was violative of Section 14(2) of the Act,: that the fresh order of his detention could

be justified only in case fresh facts had arisen after the date of the revocation of the' previous order; that no such new facts had been mentioned by

the detaining authority for issue of fresh order of his detention, that the issue of fresh detention order was also illegal and void as no grounds of

detention as required by Section 8 of the Act had been supplied to him, that proviso to Section 8 of the Act was unconstitutional, illegal and void

because it contravened the provisions of Article 22 of the Constitution of India, that the detention was illegal as he had not been afforded an

opportunity of making a representation against the order to the, Government as provided by Section 8 of the Act, and that the detention was also

illegal as no reference u/s 10 of the Act had been made to the Advisory Board.

The petition was resisted by the Government inter alia on the grounds that the previous detention order had been revoked on account of

technical defect and by its Order No. ISD-305 of 1969 dated 19-9-1969 it had ordered the detention of the petitioner u/s 3(1)(a)(i) of the Act,

that the petitioner was informed of the revocation of the order of the District Magistrate, Poonch, and in token thereof his signature was obtained

on the order of revocation, that the petitioner was also informed of the fresh detention order and in obedience thereof was detained in the

Additional Police Lock up attached in Police Station, Sadar, Jammu, that fresh order of petitioner's detention was passed as the Government was

satisfied that with a view to preventing him from acting in any manner prejudicial to the security of the State, it was necessary to do and as the

previous order passed by the District Magistrate was found to be defective in law, and that it was also intimated to the petitioner that it was against

public interest to disclose to him the facts or to communicate to him the grounds on which his detention order had been made.

Mr. Sethi, learned Counsel for the petitioner, has raised the following contentions. That the Act was not legally in force after the 8th of May,

1969 that the proviso to Section 8 of the Preventive Detention Act is violative of Article 22(5) of the Constitution of India, that Article 35(c) added

by the President vide Constitution (Application to J. & K.) Order, 1964 with a view to save the provisions of the law relating to preventive

detention from being held to be violative of Article 22(5) of the Constitution of India, is no longer in force as the Article was originally added for a

period of five years and the President could not by subsequent orders raise the period from 5 years to 20 years, that the President having once

specified the modifications and exceptions subject to which certain provisions of the Constitution were applicable in relation to the State and these

provisions having become applicable to the State, it was not within the competence of the President to make any amendment therein by means of a

subsequent order, that fresh order for the petitioner's detention was violative of Section 22 of the Preventive Detention Act, that no new facts had

come into existence after the revocation of the previous order warranting the making of a fresh order of detention and as such the detention was

void and invalid, that detention of the petitioner was violative of Section 8 of the Preventive Detention Act as the petitioner was not afforded an

opportunity of making representation against the order of detention, that the order was mala fide and that the fresh detention order had not been

served on the petitioner.

Raizada Amar Chand, the learned Addl. Advocate-General appearing on behalf of the Government has produced a copy of the J. and K.

Preventive Law (Amendment) Act 1969 (Act No. XXXI of 1969). In view of this Act, the first contention raised on behalf of the petitioner has no

force and is, therefore rejected.

The second contention of the learned Counsel for the petitioner that the proviso to Section 8 of the Preventive Detention Act was violative of

Article 22(5) of the Constitution of India and the President having once added Article 35(c) to the Constitution of India in relation to the State for a

period of five years it was not open to him to amend it subsequently and consequently the Act was not immune from challenge has also no force.

This point is concluded by the decision of the Supreme Court in Sampat Prakash Vs. The State of Jammu and Kashmir and Another, . In this

judgment similar contention advanced on behalf of the detenu was elaborately dealt with and repelled by their Lordships in the following words:

The next submission made for challenging the validity of the Orders of modification made in the years 1959 and 1964 was that, under sub-clause

(d) of Clause (1) of Article 370 of the Constitution, the power that is conferred on the President is for the purpose of applying the provisions of the

Constitution to Jammu and Kashmir and not for the purpose of making amendments in the Constitution as applied to that Slate. The interpretation

sought to be placed was that, at the time of applying any provision of the Constitution to State of Jammu and Kashmir, the President is competent

to make modifications and exceptions therein; but once any provision of the Constitution has been applied, the power under Article 370 would not

cover any modification in the constitution as applied. Reliance was thus placed on the nature of the power conferred on the President to urge that

the President could not from time to time amend any of the provisions of the Constitution as applied to the State of Jammu and Kashmir. It was

further urged that the President's power under Article 370 should not be interpreted by applying Section 21 of the General Clauses Act, because

constitutional power cannot be equated with a power conferred by an Act, rule, by-law, etc.

The argument, in our opinion, proceeds on an entirely incorrect basis. Under Article 370(1)(d) the power of the President is expressed by laying

down that provisions of the Constitution other than Article (1) and Article 370 which, under Article 370(1)(c) became applicable when the

Constitution came into force, shall apply in relation to the State of Jammu and Kashmir subject to such exceptions and modifications as the

President may by order specify. What the President is required to do is to specify the provisions of the Constitution which are to apply to the State

of Jammu and Kashmir and when making such specification he is also empowered to specify exceptions and modifications to those provisions, As

soon' as the President makes such specification, the provisions become applicable to the State with the specified exceptions and modifications. The

specification by the President has to be in consultation with the government of the State if those provisions relate to matters in the Union List and

the concurrent List specified in the Instrument of Accession governing the accession of the State to the Dominion of India as matters with respect

to which the Dominion Legislature may make laws for that State. The specification in respect of all other provisions of the Constitution under sub-

clause (d) of Clause (1) of Article 370 has to be with the concurrence of the State Government. Any specification made after such consultation or

concurrence has the effect that the provisions of the Constitution specified with the exceptions and modifications become applicable to the State of

Jammu and Kashmir. It cannot be held that the nature of the power contained in this provision is such that Section 21 of the General Clauses Act

must be held to be totally inapplicable.

In this connection it may be noted that Article 367 of the Constitution lays down that unless the context otherwise requires the General Clauses

Act, 1897, shall subject to any adoptions and modifications that may be made therein under Article 372 apply for the interpretation of the

Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. This provision made by the Constitution itself in

Article 867, thus, specifically applied the provisions of the General Clauses Act to the interpretation of all the Articles of the Constitution which

include Article 370. Section 21 of the General Clauses Act is as follows:

Where, by any Central Act or Regulation a power to issue notification, orders, rules, or by laws is conferred, then that lower includes a power

exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders,

rules or bye-laws so issued.

This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to any Central

Act or regulation. On the face of it, the submission that Section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies

which can only be avoided by holding that the rule laid down in this Section is fully applicable to all the provisions of the Constitution. As an

example, under Article 77(3), the President, and, under Article 186(3), the Governor, of a State are empowered to make rules for the more

convenient transaction of the business of the Government of India or the Government of the State, as the case may be, and for the allocation

among Ministers of the said business. If, for the interpretation of these provisions Section 21 of the General Clauses Act is not applied, the result

would be that the rules once made by the President or a governor would become inflexible and the allocation of the business among the Ministers

would for ever remain as laid down in the first rules. Clearly the power of amending these rules from time to time to suit changing situations must be

held to exist and that power can only be found in these articles by applying Section 21 of the General Clauses Act. There are other similar rule-

making powers, such as the power of making service rules under Article 309 of the Constitution. That power roust also be exercisable from time

to time and must include within it the power to add to, amend, vary or rescind any of those rules. The submission that Section 21 of the General

Clauses Act cannot be held to be applicable for interpretation of the Constitution must, therefore, be rejected. It appears to us that there is nothing

in Article 370 which would exclude the applicability of this Section when interpreting the power granted by that Article.

The legislative history of this Article will also fully support this view, It was because of the special situation existing in Jammu and Kashmir that

the Constituent Assembly framing the Constitution decided that the Constitution should not become applicable to Jammu and Kashmir under

Article 394, under which it came into effect in the rest of India, and preferred to confer on the President the power to apply the various provisions

of the Constitution with exceptions and modifications. It was envisaged that the President would have to take into account the situation existing in

the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that,

when applying a particular provision the situation might demand an exception or modification of the provision applied, but subsequent changes in

the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferring on the President the

power of making order from time to time under Article 370 and this power must, therefore, be held to have been conferred on him by applying the

provisions of Section 21 of the General Clauses Act for the interpretation of the Constitution.

Lastly, it was argued that the modifications made in Article 35(c) by the Constitution (Application to Jammu and Kashmir) Orders of 1959 and

1964 had the effect of abridging the fundamental right of the citizens of Kashmir under Article 22 and other articles contained in Part HI after they

had already been applied to the State of Jammu' and Kashmir, and an order of the President under Article 370 being in the nature of law, it would

be void under Article 13 of the Constitution. Article 35(c) as originally introduced in the Constitution as applied to Jammu and Kashmir laid down

that no law with respect to preventive detention made by the Legislature of that State could be declared void on the ground of inconsistency with

any of the provisions of Part III with the qualification that such a law to the extent of the inconsistency was to cease to have effect after a period of

five years. This means that, under clause (c) of Article 35, immunity was granted to the preventive laws made by the State legislature completely,

though the life of the inconsistent provisions was limited to a period of five years. The extension of that life from five to ten years and ten to fifteen

years cannot, in these circumstances be held to be an abridgement of any fundamental right, as the fundamental rights were already made

inapplicable to the preventive detention law. On the other hand if the substance of this provision is examined, the proper interpretation would be to

hold that as a result of Article 35 (c) the applicability of the provisions of Part III for the purpose of judging the validity of a law relating to

preventive detention made by the State Legislature was postponed for a period of five years, during which the law could not be declared void. As

already stated Article 370(1)(d) in terms, provides for the application of the provisions of the Constitution other than Articles 1 and 370 in relation

to Jammu and Kashmir with such exceptions and modifications as the President may by order specify. It was not disputed that the President's

Order of 1954 by which immunity for a period of five years was given to the State s Preventive Detention law from challenge on the ground of its

being inconsistent with Part III of the Constitution, was validly made under and in conformity with clause (d) of Article 370(1). We have already

held that the power to modify in clause (d) also includes the power to subsequently vary, alter, add to, or rescind such an order by reason of the

applicability of the rule of interpretation laid down in Section 21 of the General Clauses Act. If the Order of 1954 is not invalid on the ground of

infringement or abridgement of fundamental rights under Part III it is difficult to appreciate how extension of period of immunity made by

subsequent amendments can said to be invalid as constituting an infringement or abridgement of any of the provisions of Part III. The object of the

subsequent Orders of 1959 and 1964 was to extend the period of protection to the preventive detention law and not to infringe or abridge the

fundamental rights, though the result of the extension is that a detenu cannot during the period of protection, challenge the law on the ground of its

being inconsistent with Article 22. Such extension is justified prima facie by the exceptional state of affairs which continue to exist as before.

Regarding the third point Mr. Amar Chand has submitted that Section 14(2) does not apply to a case where fresh detention order is issued on

account of some technical defect, This contention is, in our opinion, wholly devoid of substance. Section 14(2) reads as follows:

The revocation or expiry of a detention order shall not bar the making of a fresh detention order u/s 3 against the same person in any case where

fresh facts have arisen after the date of revocation or expiry on which the Government or an officer, as the case may be, is satisfied that such an

order should be made.

A bare perusal of the provision would be enough to show that it is very wide in amplitude and applies to every case of revocation for any reason

whatsoever including a technical defect. The provision envisages that no fresh order of detention would be issued against a person where the

previous order of his detention is revoked unless new facts warranting the detention have come into existence after the date of revocation. We are

fortified in this view by a decision of the Supreme Court in Hadibandhu Das Vs. District Magistrate and Another, where it was laid down as

follows:

In terms Section 13(2) authorises the making of a fresh detention order against the same person against whom the previous order has been

revoked or has expired, in any case where fresh facts have arisen after the date of revocation or expiry on which the detaining authority is satisfied

that such an order should be made. The clearest implication of Section 13(2) is that after revocation or expiry of the previous order, no fresh order

may issue on the grounds on which the order revoked or expired had been made.

The power of the detaining authority must be determined by reference to the language used in the statute and not by reference to any predilections

about the legislative intention. There is nothing in Section 13(2) which indicates that the expression ""revocation"" means only revocation of an order

which is otherwise valid and operative; apparently it includes cancellation of all orders invalid as well as valid. The Act authorises the executive to

put severe restrictions upon the personal liberty of citizens without even the semblance of a trial, and makes the subjective satisfaction of an

executive authority in the first instance the sole test of competent exercise of power. Courts are not concerned with the wisdom of the Parliament in

enacting the Act or to determine whether circumstances exist which necessitate the retention on the statute book of the Act which confers upon the

executive extraordinary power to detention for lone period without trial. But the Courts would be loath to attribute to the plain words used by the

Parliament a restricted meaning so as to make the power more harsh and its operation more stringent. The word ""revocation"" is not capable of a

restricted interpretation without any indication by the Parliament of such an intention.

The very fact that a defective order has been passed or that an order has become invalid because of default in strictly complying with the

mandatory provisions of the law bespeaks negligence on the part of detaining authority and the principle underlying Section 13(2) is the outcome of

insistence by the Parliament that the detaining authority shall fully apply its mind to and comply with the requirements of the statute and or insistence

upon refusal to countenance slipshod exercise of power.

As admittedly no new facts came into existence after the revocation of the previous detention order, the present detention of the petitioner based

on order ISD-305 of 1969 is clearly illegal. In this view of the matter, we think it unnecessary to express an opinion on the other points raised

before us.

At this stage the Additional Advocate-General has brought to our notice that the detenu has since been released. In view of this submission of the

learned Additional Advocate-General, the petition has become infructuous and shall be consigned to records.