20 December 1955
Supreme Court


Case number: Writ Petition (Civil) 396 of 1955






DATE OF JUDGMENT: 20/12/1955


CITATION:  1956 AIR  197            1955 SCR  (2)1101

ACT: Constitution of India, Arts. 13, 21, 22 and 35(c)-Jammu  and Kashmir Preventive Detention Act, 2011 (Act VI of 2011),  s. 3(1) (a)(i) and s. 8(1) Proviso-Constitution (Application to Jammu  and  Kashmir) Order, 1954-Detention order  under  the provisions  of ss. 3 (1)(a)(i) and 8(1) Proviso of the  Act- Whether  violates fundamental rights guaranteed under  Arts. 21  and  22  of the  Constitution-Nonsupply  of  grounds  of detention to Detenu- Whether violates his fundamental right- Addition of clause (c) to Art. 35 of the Constitution Effect of.

HEADNOTE: The  petitioner  was  detained  in  Kothibagh  sub-jail   in Srinagar by the order of Jammu and Kashmir Government  under the  provisions  of s. 3(1)(a)(i) of the Jammu  and  Kashmir Preventive Detention Act, 2011, 1102 The  petitioner  challenged the order of  detention  on  the grounds,   inter  alia,  (i)  that  it  encroached  on   his fundamental right to life and personal liberty guaranteed to him  under  Art. 21 of the Constitution as extended  to  the State  of  Jammu  and Kashmir, (ii)  that  it  violated  his fundamental right guaranteed to him under clause (5) to Art. 22  of  the Constitution as extended to  Jammu  and  Kashmir State  inasmuch as the petitioner was not supplied with  the grounds  on which the order of detention was based.  It  was contended  that  s.  8(1)  Proviso,  of  Jammu  and  Kashmir Preventive  Detention Act, 2011, under which the grounds  of detention were not supplied to him, was unconstitutional  as being inconsistent with Arts. 21 and 22 of the  Constitution and thus void to the extent of that inconsistency in view of the provisions of Art. 13 of the Constitution. Held  (overruling the contention) that s. 8 (1)  Proviso  is not   unconstitutional   in  view  of  the   provisions   of Constitution (Application to Jammu and Kashmir) Order,  1954 which supersedes the Constitution (Jammu and Kashmir) Order, 1950,  and of clause (c) which has been added to Art. 35  of the Constitution.



The effect of the modification of Art. 35 by the addition of clause (c) thereto is that such of the provisions of the Act as are inconsistent with Part III of the Constitution  shall be  valid  until  the  expiration of  five  years  from  the commencement of the Order.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 396 of 1955. Under  Article  32  of the Constitution for a  writ  in  the nature of Habeas Corpus. R.   Patnaik, for the petitioner. M.   C. Setalvad, Attorney-General of India, C. K. Daphtary,  Solicitor-General of India, Raja  Jaswant  Singh, Advocate-General, Jammu and Kashmir (-P.  A. Mehta and R. H. Dhebar, with them) for the respondent. M.   C.  Setalvad, Attorney-General of India (P.   A.  Mehta and R. H. Dhebar, with him) for the Intervener. 1955.  December 20.  The Judgment of the Court was delivered by SINHA  J.-This  application for a writ of habeas  corpus  is directed against the State of Jammu and Kashmir which has by its  order  dated  the  4th  October,  1955,  directed   the detention of the petitioner under section 3 of the Jammu and Kashmir Preven- 1103 tive  Detention  Act, (Jammu and Kashmir Act  IV  of  2011), hereinafter to be referred to as "the Act".  Originally  the sole  respondent  impleaded  was  the  State  of  Jammu  and Kashmir.   After a rule nisi was issued to  the  respondent, the  Union  of India intervened because the  petitioner  had challenged the validity of the Constitution (Application  to Jammu and Kashmir) Order, 1954. The  petitioner,  P.  L. Lakhanpal,  aged  approximately  28 years,  describing  himself  as the  Chairman,  End  Kashmir Dispute Committee, has moved this Court against the order of the State detaining him in Kothi Bagh sub-jail in  Srinagar. The application is based on the following allegations.   The petitioner is normally a resident of 9821, Nawabganj,  Delhi 6. He went to Kashmir on a permit on the 24th September this year  "on a study-cum-pleasure trip".  He has been  evincing keen interest in Kashmir politics since the year 1946,  when as  General  Secretary  of  the  Congress  Socialist  Party, Lahore,  be  was closely associated with the  "Quit  Kashmir movement".  Last year he wrote a book entitled I  ’Communist Conspiracy  in Kashmir", copies of which had been seized  by the  Delhi  Police  but  were  subsequently  released.   The petitioner  in the book aforesaid, as also elsewhere in  the press  and  on  the platform, claims  to  have  been  making "trenchant criticism of the Kashmir cabinet headed by Bakshi Ghulam Mohammed and also of the Government of India’s policy in  regard  to  Kashmir".   He claims to  be  known  as  the supporter  of  Sheikh  Mohd.   Abdullah,  the  former  Prime Minister of Kashmir, and to have expressed the opinion  that he "has been the victim of a heinous conspiracy motivated by lust  for power between the communists and the rightists  on the one hand and Bakshi Ghulam Mohammed, the present Kashmir Prime Minister, on the other".  He also claims to have  been advocating  the cause of the ex-Prime Minister aforesaid  of Kashmir whose detention has been severely criticized by him. He  has  "also  publicly exposed and  denounced  the  brutal excesses  committed by the police and authorities under  the Bakshi Government throughout 1104



the  State".   He has characterized  the  State  Constituent Assembly  as having forfeited the confidence of the  people. He  claims to have "declared that the Bakshi cabinet,  which in  his  view  is  dominated  by  the  communists,  is   the corruptest,   the  most  tyrannical  and  the   most   hated Government that the State has ever had".  Similar views were expressed by him in telegrams said to have been sent to  the Sadar-i-Riyasat  of Jammu and Kashmir, to the  President  of India and to the Prime Minister of India.  He claims to have organized  a "persistent campaign to secure support for  his views  on Kashmir among the public and leaders of  political thought".   The aforesaid activities of the  petitioner,  he further claims, have "provoked a bitter controversy  between him  and the Indian Prime Minister".  In this connection  he makes reference to certain statements said to have been made by the Prime Minister of India which it is not necessary  to detail here except the following:- "During the last few months, however, I have become aware of his  (the  petitioner’s) activities and have  inquired  into them.   These inquiries led me to the conclusion that  these activities  are of a most objectionable character which  can only help the enemies of our country". The  petitioner also claims to be the General  Secretary  of the World Democratic Peace Congress.  In this connection  he makes  certain other allegations against the Prime  Minister of India which are not relevant to the case.  He also  makes a  grievance  that it was reported in a daily  newspaper  of Srinagar  called Khidmat that the present Prime Minister  of Jammu  and  Kashmir had described him as "a traitor  and  an enemy  of  the nation".  He then  describes  his  activities during  three days in Srinagar meeting people  from  various walks  of  life,  including editors of  the  newspapers  and members  of the State Assembly.  On the 29th  September,  he says,  be left Srinagar for Anantnag in the company  of  the alleged  leader  of  the  opposition  in  the  Assembly  and President  of the Jammu and Kashmir Plebiscite Front,  named Mirza Afzal Mohd.  Beg, who, it may be added, has also 1105 been in detention under the orders of the Jammu and  Kashmir Government, as stated by the Advocate General of that State. At Anantnag he claims to have spent two days as the guest of Mr.  Beg meeting people of the town and  neighbouring  areas "listening  to their harrowing tales of woe".  On  the  30th September   be  "addressed  an  informal  meeting   of   the Plebiscite  Front Workers at Mr. Beg’s residence".  He  came back  to Srinagar on the 1st October and left for Sopore  on the  2nd October.  There he addressed an informal  gathering of a few hundred workers on the same lines as he had done at Anantnag.   On the 3rd October he personally banded  to  the P.A.  to  the  Chief  Secretary  of  Jammu  and  Kashmir  an application seeking permission for an interview with  Sheikh Abdullah  in  the Kud jail where he has been  in  detention. During his stay in Srinagar, he states, he made unsuccessful attempts to contact the State Prime Minister for a  meeting. In  the  afternoon  of  the 4th  October  be  held  a  press conference   at   which  he  "made  a   written   statement" complaining  of "such barbaric brutalities,  such-insecurity of  life,  property and honour and such callousness  on  the part  of the administration as are evidenced in your  valley only  go to show that the Bakshi Government is just  another name   for  legalized  lawless,  disorder,  corruption   and nepotism".   In  the early hours of the morning of  the  5th October the Superintendent of Police, Srinagar, read out  to him  the order of detention passed by the Cabinet  and  took him  into  custody and detained him in  the  sub-jail  Kothi



Bagh.   The order of detention (Annexure "D" at page  20  of the paperbook) is in these terms:- "GOVERNMENT OF JAMMU AND KASHMIR CHIEF SECRETARIAT  (GENERAL DEPARTMENT) Subject:-Detention of P. L. Lakhanpal, Chairman, End Kashmir Dispute  Committee  at  present residing  in  Kashmir  Guest House,  Lal  Chowk,  Amira Kadal,  Srinagar,  under  section 3(1)(a)(i)  of  the Jammu and Kashmir  Preventive  Detention Act, 2011. 1106 Read:-Memorandum  No. IS-164-D/55 dated 4-10-1955, from  the Minister Incharge, Law and Order.                   Order No. 1644-C of 1955                   Dated 4th October, 1955. The  Government  having considered the facts stated  in  the memo  of the Minister Incharge, Law and Order are  satisfied that  it is necessary to detain P. L.  Lakhanpal,  Chairman, End Kashmir Dispute Committee at present residing in Kashmir Guest  House, Lal Chowk, Amira Kadal, Srinagar, with a  view to  preventing him from acting in any manner prejudicial  to the  security  of  the State.   Accordingly  the  Government hereby  accord  sanction  to the Order  annexed  hereto  and authorize  the  Chief Secretary to Government to  issue  the same over his signature. By Order of the Cabinet, , Sd. G.M. Bakshi Prime Minister". The order actually ’served on the petitioner is an  annexure to the cabinet order (Annexure ’E’ at page 21 of the  paper- book) which is in these terms: "GOVERNMENT OF JAMMU AND KASHMIR.  Annexure to Cabinet Order No. 1644-C of 1955,                       dated 4-10-1955.                          O r d e r. Whereas  the Government are satisfied with respect to P.  L. Lakhanpal,  Chairman,  End  Kashmir  Dispute  Committee,  at present   residing  in  Kashmir  Guest  House,  Lal   Chowk, Amirakadal, Srinagar that with a view to preventing him from acting in a manner prejudicial to the security of the  State it is necessary to make an order directing that the said  P. L.Lakhanpal be detained: Now,  therefore in exercise of the powers conferred by  sub- section (1) of section 3 of the Jammu and Kashmir Preventive Detention  Act,  2011, the Government are pleased  to  order that the said P. L. 1107 Lakhanpal be detained in sub-jail, Kothibagh, Srinagar; Notice of this Order shall be given to the said P.   L. Lakhanpal by reading over the same to him. By order of Government. Sd. Ghulam Ahmad Chief Secretary to Government". It  is  this  order  which  the  petitioner  challenges   as "malicious,  mala  fide,  vague  and  capricious,  illegally depriving  the petitioner of his fundamental right  to  life and  personal  liberty guaranteed under article  21  of  the Constitution as extended to the State of Jammu and Kashmir". The  order of the petitioner’s detention is also  challenged as  unwarranted  and illegal as the order sent to  the  jail authorities  does  not  bear  the  signature  of  the  Prime Minister   of  Jammu  and  Kashmir  and  also  because   the petitioner  has not been supplied, in spite of demands  made by him, with the grounds on which the order of his detention is  based,  "in clear violation of  his  fundamental  rights guaranteed  under  clause  (5) of article  22  of  the  Con-



stitution  as extended to the State of Jammu and Kashmir  by the  Constitution (Application to Jammu and Kashmir)  Order, 1954". The State has filed an answer to the petitioner’s  affidavit in  support of his petition.  The affidavit filed on  behalf of the State is sworn to by Shri Pirzada Ghulam Ahmad, Chief Secretary  to the Government.  In this affidavit  he  denies that  the  petitioner had come to Kashmir  on  a  study-cum- pleasure trip as alleged by him.  He further states that the petitioner during his stay in Kashmir "actually engaged him- self in activities prejudicial to the security of the State" and that the Government was "satisfied that it is not in the public interest to communicate to the petitioner the grounds of the said detention order".  The affidavit further  states that the petitioner’s "detention was ordered by the  Cabinet not  for any collateral purpose but because  the  Government was  satisfied  that the activities of the  petitioner  were calculated to prejudice the security of the State" 140 1108 The  allegations of improper motive and mala fides  made  by the   petitioner  are  denied  as  wholly   "unfounded   and baseless".    It  is  also  denied  that  the   petitioner’s detention  was  illegal or that the provisions  of  the  Act under which the order had been passed were unconstitutional. The affidavit ends by stating that it is apprehended that if the petitioner were to be released, he is "likely to indulge further  in  activities which would greatly  jeopardize  the security of the State" and that the detention order had been made  solely with a view to preventing the  petitioner  from doing any further mischief. The Act impugned in this case provides that it shall  remain in  force  for a period of five years from the date  of  its commencement.  The relevant portion of section 3 is in these terms:- (1)  The Government may- (a)  if  satisfied  with respect to any person that  with  a view to preventing him from acting in any manner prejudicial to- (i) the security of the State; or........ it is necessary so to  do,  make  an  order  directing  that  such  person   be detained".  The  main  attack  against  the  orders  served  upon   the petitioner  is against the following paragraph in the  order dated the 7th October 1955:- "Now,  therefore, the Government, in exercise of the  powers conferred by the proviso to sub-section (1) of section 8  of the  said Act, hereby declare that it would be  against  the public  interest to communicate to the said P. L.  Lakhanpal the grounds on which the detention order has been made". That  part  of  the order of detention  passed  against  the petitioner is in consonance with section 8 of the Act  which is in these terms:- "(1)  When a person is detained in pursuance of a  detention order, the authority making the order shall, as soon as  may be,  communicate to him the grounds on which the  order  has been made, and shall afford him the earliest opportunity  of making a representation against the order to the Government; Provided that nothing contained in this sub-sec- 1109 tion  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  Government  by  order issued in this behalf declares that it would be against  the public  interest to communicate to him the grounds on  which



the detention order has been made. (2)Nothing in sub-section (1) shall require the authority to disclose  facts which it considers to be against the  public interest to disclose". The  proviso to the section just quoted makes provision  for such  cases as come within the purview of section  3(1)  (a) (i) of the Act; that is to say, a person in the position  of the petitioner who has been detained for preventing him from acting  in  any manner prejudicial to the  security  of  the State of Jammu and Kashmir is outside the general rule  laid down  in section 8(1) if the Government declares as  it  has done in this case, that it would be against the public inte- rest  to  communicate  to  him  the  grounds  on  which  the detention order has been made.  It is not contended that the orders  served upon the petitioner are not justified by  the terms  of the section quoted above.  But it has been  argued by the learned counsel for the petitioner that the terms  of the  section  are  unconstitutional  inasmuch  as  they  are inconsistent  with the provisions of articles 21 and  22  of the Constitution and are therefore to the extent of such  in consistency void in view of the provisions of article 13  of the  Constitution.   This  argument  presupposes  that   the petitioner can invoke the aid of those articles.  It has not been  contended on behalf of the petitioner that apart  from the   provisions  of  Part  III  of  the  Constitution   the petitioner  has  any fundamental rights guaranteed  to  him, Therefore, if articles 21 and 22 are out of the way, as will presently appear, the argument is without any force. The  Constitution does not apply to the State of  Jammu  and Kashmir  in  its  entirety.   On the  14th  May,  1954,  the President  of India in exercise of the powers  conferred  by clause  (1)  of  article 370 of the  Constitution  made  and promulgated with the concur- 1110 rence  of the Government of the State of Jammu and  Kashmir, the  Constitution (Application to Jammu and Kashmir)  Order, 1954 (which shall be described hereinafter as "The  Order"). It  came  into  force on the same  day  and  superseded  the Constitution  (Application  to  Jammu  and  Kashmir)  Order, 1950..  By its terms the Order provides that in addition  to articles I and 370, the specified provisions of the  Consti- tution shall apply to the State of Jammu and Kashmir subject to  the exceptions and modifications indicated therein.   In so far as those exceptions and modifications are relevant to our present purpose, it is provided that in clauses (4)  and (7) of article 22 "The Legislature of the State of Jammu and Kashmir" shall be substituted for "Parliament", so that  the Legislature  of the State of Jammu and Kashmir is  competent to legislate in respect of preventive detention.  In article 35, clause (c) has been added, which is in these terms:- "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". The  effect  of  this  modification in  article  35  of  the Constitution  is that such of the provisions of the  Act  as are inconsistent with Part III of the Constitution shall  be valid   until  the  expiration  of  five  years   from   the commencement  of the Order.  This is an exception which  has



been engrafted on the Constitution in respect of fundamental rights  relating to personal liberty for the limited  period of  five years.  The Act itself has a limited life  of  five years.   Thus the exception aforesaid is  co-extensive  with the  life  of  the Act itself.  Hence, so long  as  the  Act continues  in force in its present form, the  provisions  of articles 21 and 22 in 1111 so far as they are inconsistent with the Act are out of  the way  of  the  respondent  and  the  petitioner  cannot  take advantage  of  those  provisions.  Therefore,  there  is  no question  of  the provisions of section 8 of the  Act  being unconstitutional by reason of their being inconsistent  with articles  21  and 22 of the Constitution;  and  consequently article 13 is of no assistance to the petitioner. We  have assumed that article 32 of the  Constitution  under which  this  application  has been made  to  this  Court  is available to the petitioner, though the Attorney-General who appeared  to show cause on behalf of the respondents,’  went to the length of suggesting that even the benefit of article 32  of the Constitution is not available to the  petitioner. As  he  did  not raise this point by way  of  a  preliminary objection and as we did not hear the petitioner’s counsel on this  aspect  of the case, because in our  view  clause  (c) added  to article 35 of the Constitution by the  President’s Order was enough to deprive the petitioner of the benefit of articles  21  and  22  at least,  we  have  not  thought  it necessary  to  examine  and  pronounce  upon  that   extreme proposition. Realizing the difficulty in the petitioner’s way in view  of the  provisions  of  clause (c) added  as  a  afore-said  to article 35 of the Constitution, the learned counsel for  the petitioner  faintly suggested that clause (c) of article  35 added  by the President’s Order was itself bad inasmuch  as, so the argument further ran, that provision was in excess of the powers conferred on the President by article 370 of  the Constitution.   No  attempt  was  made  on  behalf  of   the petitioner  to  show  how  the  Order  promulgated  by   the President  was in excess of his powers under article 370  of the  Constitution.  It was not contended that  that  article did  not  authorise the President to promulgate  the  Order. What was suggested was that in promulgating the Order  which the  President was authorized to make under article  370  he had  exceeded  his powers.  Beyond saying  so,  no  tangible reason was adduced in support of this extreme position.   It is  manifest that article 370(1)(c) and (d)  authorizes  the President by Order 1112 to   specify  the  exceptions  and  modifications   to   the provisions  of the Constitution (other than articles  I  and 370)  subject to which the Constitution shall apply  to  the State  of Jammu and Kashmir.  Clause (c) as indicated  above has been added to article 35 of the Constitution only so far as  the State of Jammu and Kashmir is concerned.  Section  8 of  the  Act is not in excess of or  inconsistent  with  the provisions  of  clause  (c) so added to article  35  of  the Constitution.   That being so the orders as served upon  the petitioner  are not inconsistent with or in excess  of  such provisions  of Part III of the Constitution as apply to  the State of Jammu and Kashmir.  It must therefore be held  that the  petitioner  was not entitled to know the  grounds  upon which  he had been detained beyond what is disclosed in  the order itself It  was  argued that the order of detention  served  on  the petitioner or the order sent to the officer in charge of the



jail  where he was detained, did not bear the  signature  of the Prime Minister of Jammu and Kashmir.  But no  provisions of  any  law have been brought to our notice  which  require that the Prime Minister himself should have signed the  copy of  the order to be served on the detenu or the copy of  the order  which was forwarded to the officer in charge  of  the jail.   Even the long petition submitted by  the  petitioner which is not characterized by sobriety of language or strict accuracy  does not contain any the least suggestion to  that effect; and no material in sup-port of it has been shown  to us.    We  cannot,  therefore,  take  notice  of   such   an irresponsible  and unfounded suggestion.  It must  therefore be  held that all the grounds of law urged or  suggested  in support  of the petition are without any substance.  We  may add  that  we  did not call upon  the  Attorney-General  who appeard  on  behalf of the respondents to  show  cause  with reference  to  the allegations of the order  impugned  being malicious or wanting in bona fides because no foundation had been  laid  in  the  petition on the  facts  stated  in  the affidavit which could lead us even remotely to make such  an inference, 1113 For  the reasons aforesaid it must be held that there is  no merit  in  the  application  and  the  rule  is  accordingly discharged, and the application is dismissed.