Sohan Singh vs State

Jaswant Singh, J.—This is an application u/s 491 Criminal P. C. by one Sohan Singh, challenging his detention u/s 3 (2) of the Jammu and

Kashmir Preventive Detention Act, 1964 (Act No : XIII of 1964) hereinafter referred to as the Act.

I have heard the petitioner who was sent for in compliance with his request and Mr, Vinod Kumar Gupta, who was appointed as amicus curiae

to argue the case on his behalf.

Mr. Gupta has urged that after the expiry of five years from the date of the coming into force of the Jammu and Kashmir Constitution

(Application to Jammu and Kashmir) order, 1954, Article 22 of Constitution of India applied with full force to the State and the orders issued from

time to time by the President amending the said order which abridged the fundamental rights of the citizens of Jammu and Kashmir under Article

were void. Mr. Gupta has further urged that Sub-section (1) of Section 8 of the Act confers a valuable right on a person of being afforded an

opportunity of making a representation to the government against the order pursuant to which he is detained and the proviso to the aforesaid Sub-

Section cannot be interpreted in a manner so as to take away that valuable right whatever may be the reason for his detention. He has lastly urged

that under-sub-section (3) of Section 3 of the Act as amended by Act No. VIII of 1967, the Government had to accord its approval to the order

of detention passed by the District Magistrate within 24 days of the making thereof and since the Government accorded its approval on September

29, 1970, the detention could not be up-held.

The first contention of the learned Counsel for the petitioner is wholly misconceived. A study of the Constitution of India, would show that only

Articles 1 and 370 thereof apply proprio vigore to the State of Jammu and Kashmir. The latter Article pro-vides that such of the other provisions

of the Constitution would apply in relation to the State subject to such exceptions and modifications as the President may specify. In exercise of

this power the President issued on May 4, 1954, an order called the Constitution (Application to Jammu and Kashmir) order, 1954, (C. O. 48).

By paragraph 2 (4) (i) of this order, the following clause in relation to the State was added after Clause (b) in Article 35:

(C) ""No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether 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.

Before the expiry of five years for the words ""five years"" in Article 35C the words ""ten years"" were substituted by the Constitution (Application to

Jammu and Kashmir) second Amendment Order. 1959, (C. O. 59). Subsequently for the words ""ten years"" ""the words ""fifteen years"" were

substituted in the said Clause (c) of Article 35 by the Constitution (Application to Jammu and Kashmir) Amendment Order 1964, (C.. O. 69).

This modification was also made before the expiry of ten years from the date on which the Constitution (Application to Jammu and Kashmir)

Order; 1954, was passed. Similarly for the words ""fifteen"" the word ""twenty"" was substituted in Clause (d) and Sub-clause (iii) of Clause (i) of

Sub-Paragraph (4) of Paragraph 2 of the Constitution (Application to Jammu and Kashmir) Order, 1954 by the Constitution (Application to

Jammu and Kashmir) Second Amendment. 1969, (C. O. 86). It is, therefore, evident that the provisions relating to fundamental rights as contained

in Part III of the Constitution were not made applicable proprio vigore by the Constitution of India to the State of Jammu and Kashmir but were

applied by the President subject to certain modifications and exceptions as contained in the Constitution (Application to Jammu and Kashmir),

Order, 1954. Thus the fundamental fights enshrined in Part III of the Constitution having been conferred on the residents of the State only to a

limited extent, and the President who is competent u/s 21 of the General Clauses Act, 1897. to issue orders under Article 370(1) of the

Constitution amending the Constitution (Application to Jammu and Kashmir), 1954, having validly extended the time for giving protection to the

State law relating to preventive detention against invalidity on the ground of infringement of the fundamental rights contained in Part III of the

Constitution, the ground urged by Mr. Gupta, has no force.

Dealing with a similar contention their Lordships of the Supreme Court in Sampat Prakash Vs. The State of Jammu and Kashmir and Another, .

held:

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 rights of the citizens of Kashmir under Article 22 and other Article contained in Part III 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 12 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 the 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 abridgment 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 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 be 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.

The provision made in Article 35(c) has the effect that the validity of the Act cannot be challenged on the ground that any of the provisions of the

Act are inconsistent with Article 22 of the Constitution.

In a later case viz. Abdul Ghani Vs. The State of Jammu and Kashmir, . the Supreme Court reiterated the position in the following words:

Under Article 370. the President is given the full discretion to apply the Constitution with such exceptions and modifications as he may, by order,

specify. It was at the initial stage, when applying the Constitution to the State of Jammu and Kashmir, that this modification was made in Article 35.

This was, therefore, not a case where any provision of the Constitution as already applied to Jammu and Kashmir was being modified in which

case only a question could arise whether that modification was permissible. The modification at the initial stage of applying the Constitution itself

cannot be challenged on the ground that it abridges any of the fundamental rights existed in the State of Jammu and Kashmir. They came into

existence only by virtue of the order of the President applying the Constitution and at that stage they came into force in the modified form in which

they were applied. This point raised by learned Counsel, therefore, has no force at all.

Reference in this connection may also be made to Kundan Lal v. District Magistrate AIR 1970 J. and K. 143, where it was held:

There is nothing in Article 370 of the Constitution which could exclude the application of Section 21 of General Clauses Act when interpreting the

powers granted to the President under Article 370. The modification in Article 35(c) of the Constitution of India extending its period from 5 to 20

years and this saving the provisions of Section 8 of J. & K. Preventive Detention Act. 1964, from being violative of Article 22(5) of the

Constitution of India is therefore, within the power of the President.

xx xx xx

Under Clause (c) of Article 35 of the Constitution of India immunity was granted to the preventive laws made by the State Legislature completely,

though the life of the inconsistent provisions was limited to the period of five years. The extension of that life from five to ten years in 1959 and then

to fifteen years in 1964 cannot in the circumstances be held to be a abridgement of fundamental rights as the fundamental rights were already made

inapplicable to preventive detention law.

Thus as in Sampat Prakash Vs. State of Jammu and Kashmir, the protection of clauses (4) and (5) of Article 22 of the Constitution is not available

to the petitioner and in view of Article 35(c) no law with respect to preventive detention made by the Legislature of the State can be declared

invalid even though it may be repugnant to the provisions of Part III of the Constitution.

The second contention advanced by the learned Counsel for the petitioner is also without substance. The word ""nothing"" occurring in the

beginning of the proviso to Section 8 (1) of the Act is pregnant with meaning. It takes away all the rights conferred on the detenu by Sub-section

(1) of Section 8 of the Act. As the detenu has been detained in connection with the security of the state the right of making a representation is also

not available to him I am fortified in this behalf by a decision of this Court in Parmanand v. State. 1971 Kash L. J. 70. where it was held:

It is true that Section 8 (1) of the Jammu and Kashmir Preventive Detention Act requires the detaining authority not only to communicate the

grounds of detention to the detenue within ten days from the date of his detention but also to afford him the earliest opportunity of making a

representation against the order to the government, but both these rights appear to have been taken away from a person detained with a view to

prevent him from acting in a manner prejudicial to the security of the State, if the detaining authority passes and communicates to him an order that

it would be against public interest to disclose the grounds of detention to him. This would be clear from a perusal of Section 13-A (2) (b) of the

Act which was inserted by the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967, which reads as follows:

(b) in Sub-section (1) of Section 8 (i) xx xx xx

(ii) The following proviso shall be inserted at the end namely : Provided that nothing in this sub-section shall apply to the case of any person

detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the

same or a subsequent order directs that the person detained may. be informed that it would be against public interest to communicate to him the

grounds on which the detention order has been made.

The opening words of the proviso namely ""Provided that nothing in this Sub-section shall apply to the case of anv person detained with a view to

preventing him from acting in any manner prejudicial to the security of the State"" are full of significance. They totally deprive the detenu who is

detained for reasons of the security of the State, of the right of being furnished with the grounds of detention as also of the right of being afforded

an opportunity of making a representation against the detention order to the Government if the authority making an order of detention by the same

or subsequent order directs that the person detained may be informed that it would be against public interests to communicate to him the grounds

on which the detention has been made. It is also beyond doubt that the provisions of the Jammu and Kashmir Preventive Detention Act, even

though inconsistent with the provisions of Chapter III of the Constitution are immune from challenge. This would be clear by a reference to Article

35(c) of the Constitution as applied to the State by the Constitution (Application to Jammu and Kashmir) Order, 1954, promulgated by the

President of India on May 14. 1954. In a recent decision of the Supreme Court in Talib Hussain v. The State of Jammu and Kashmir 1970

Criminal Appeal Reporter, 446, Hon'ble Dua J. observed as follows:

It is clear that by virtue of the provisions of Section 13-A (2) (b) (ii) of the Jammu and Kashmir Preventive Detention Act. Section 8 (1) of that

Act and by virtue of Section 13-A (2) (c) Section 10 of that Act were both inapplicable to this case (which relates t6 the persons detained with a

view to prevent him from acting in a manner prejudicial to the security of the state,) These provisions merely serve to demonstrate that the question

of security of the State is of paramount importance and is placed above the right to personal liberty of an individual whose activities are a danger to

such security. Activities prejudicial to the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising

out of such activities the right of individuals have to be postponed to the larger considerations of the State."" From the above observations, it clearly

follows that the fundamental right of personal liberty though precious, has been subordinated to the larger interests of the security of the State which

occupies a very vulnerable position.

The second contention is also, therefore, repelled.

There is, however, much force in the last contention of the learned Counsel for the petitioner. According to Sub-section (3) of Section 3 of the

Act. 1964. as amended by Act No. VIII of 1967 the approval to an order of detention passed by the District Magistrate has to be accorded by

the Government within a period of 24 days. In the present case the order on the basis of which the detenu has been detained having been passed

by the District Magistrate on July 7, 1970. the order approving the order of detention ought to have been passed by the Government by July 31,

1970. The order signifying the approval does not, however, appear to have been passed by the Government within that period but has according

to order No. ISD-869 of 1970. a copy of which has been placed on the record, and the affidavit dated July 30, 1971 of the detaining authority

been passed on 29. 1970, which is manifestly beyond the time prescribed by law.

Mr. Amar Chand appearing on behalf of the State has submitted that the Government accorded approval to the order of petitioner's detention

on July 29. 1970. and not on September 29, 1971, and that the mention of September 29, 1970 in the copy of order No. ISD-869 1970 placed

on the record of this petition, is merely due to a typographical error. In support of his submission he wants to rely on some record in his possession

which he submits is the original order signifying the approval of the Government. I am not, however, prepared to accede to his contention in the

absence of an affidavit of the Secretary to the Government. Home Department, or of the official who may have typed the copy which has been

placed on the record. Thus there is nothing before me to indicate that the mention of September 29, 1970 in the copy of the order placed on the

record and the affidavit of the detaining authority was due to a typographical error. As an important step to being about the detention of the

petitioner has not been taken in accordance with law, his detention cannot be held to be in accordance with the procedure established by law.

In the result, I allow the application and direct that the petitioner be released forthwith unless wanted in connection with some other charge.