# M. M. DAMNOO v. J. & K. STATE

- **Citation:** [1972] 2 S.C.R. 1014
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Case number:** Writ Petition No. 144 of 1971
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-m-damnoo-v-j-k-state-5502
- **Pages:** 17

## Headnote

1014
MC)HD. MAQBOOL DAMNOO
v ..
.STATE OF JAMi\IU AND KASHMIR
January, 5, 197'<.--
[S. M. SIKRI, C.J., J. M. SHELAT,
1. D. DUA, H. R. KHANNA
A
AND G. K. MITTER, JJ.]
B
Com•1itu1ion of Jammu and KWihmir (olh Amendment) Act, 1965l'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 StateI-
'
Assent of Goyernor of Ja1nnzu anct Kashuiir 10 Preventive
JJetention
.t
\Amendment) Ac/, 1%7 wlle1/1er resul<s in rulid law-Amendment of
C
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 a1nendmem 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 because it cunftcts with section 103 of Constitution of Jammu and KaslunirWhether detention order violates .Art. 21 and 22 of Com1it11tio11-Whether
detention bad b_ecause detaining autliority had noi applied its mindWhether order of detention served and executed in accordanc:e with law.
D
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-iRiyasat. 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 a Governor in place of Sadar-i-Riyasat.
No consequential change was made in Art. 370(1) of the Constitution of
India, but Article 367 was amended to the effect that references to the
Sadar-i-Riyasat of Jammu and Kashmir shall be construed as reference
to the Governor of J ammu and Kashmir and reference to the Government
of the said St'lte shall be constrncd as including references to the Governor 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 a 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 Constitution: (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
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M. M. DAMNOO V. J. & K. STATE
1015
detention order was bad because the detaining authority had not applied
its mind; and (vi) that the order of detention was bad because it was
not served or executed in accordance with law.
HELD: (i) (a) The essential feature 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 Stat

## Text

_Characters 0–39,978 of 43,101. This is a partial read: ask again with offset=39978 for what follows._

1014
MC)HD. MAQBOOL DAMNOO
v ..
.STATE OF JAMi\IU AND KASHMIR
January, 5, 197'<.--
[S. M. SIKRI, C.J., J. M. SHELAT,
1. D. DUA, H. R. KHANNA
A
AND G. K. MITTER, JJ.]
B
Com•1itu1ion of Jammu and KWihmir (olh Amendment) Act, 1965l'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 StateI-
'
Assent of Goyernor of Ja1nnzu anct Kashuiir 10 Preventive
JJetention
.t
\Amendment) Ac/, 1%7 wlle1/1er resul<s in rulid law-Amendment of
C
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 a1nendmem 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 because it cunftcts with section 103 of Constitution of Jammu and KaslunirWhether detention order violates .Art. 21 and 22 of Com1it11tio11-Whether
detention bad b_ecause detaining autliority had noi applied its mindWhether order of detention served and executed in accordanc:e with law.
D
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-iRiyasat. 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 a Governor in place of Sadar-i-Riyasat.
No consequential change was made in Art. 370(1) of the Constitution of
India, but Article 367 was amended to the effect that references to the
Sadar-i-Riyasat of Jammu and Kashmir shall be construed as reference
to the Governor of J ammu and Kashmir and reference to the Government
of the said St'lte shall be constrncd as including references to the Governor 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 a 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 Constitution: (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
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M. M. DAMNOO V. J. & K. STATE
1015
detention order was bad because the detaining authority had not applied
its mind; and (vi) that the order of detention was bad because it was
not served or executed in accordance with law.
HELD: (i) (a) The essential feature 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 a particular time bas to be determined in the context of the Constitution of Jammu and Kashmir.. The Explanation did no more than recognise the constitutional provision as it existed on that d".lte and the
Explanation as substituted from November 17, 1952 also did not more than
recognise the constitutional provision in the State. Therefore, there IS
no difficulty in holding that Article 370(1) (b J and Article 370(1) (dJ
place no limitation on the framing and amendment of the Constitution
of Jammu and Kashmir. If there is a limitation ·it must be found in the
Constitution of the State.
Section 147 of the Constitution of Jammu
and Kashmir itself provides· that under that 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 Sadari-Riyasat, cannot be accepted. The Constitution itself contains section 18
whicl{ provides that unless the context otherwise requires the General
Clauses Act, Samvat 1977 shall applv for the. interpretation of this Constitutioji 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-iRiyasat 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 a
· successor to the Sadar-i-Riyasat.
Both are heads of the State. [1026 D1027 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 a
responsible government is altered.
Just as a change in the designation
of the head of the government was earlier brought about b<\< the introduction o~ the. offic~ of .Saclar-i-Riyasat, so too a 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
1016
SUPREME COURT REPORT~
[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 a democratic to a non·
democratic system. [1027 G-1028 BJ
A
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)
B
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 a definition clause.
What bas been done is that by adding clauses (aa) and (b) a definition
is supplied which th., Courts would have in any event given. [1028 D-EJ
C
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 a 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 cannot be held that the proviso is ultra vires because the proviso and the
Act do not bar the High Court or this Court from looking into the validity
of the detention. The High Court and this Court are free to exercise the
jurisdiction by calling upon the State 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] ·
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M. M. DAMNOO V. J. & K. STATE (Sikri, C.J.)
1017
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 a writ in the
B
nature of habeas corpus.
R. K. Garg, S. C. Agarwal, A. K. Gupta and R. K. Jain for
the petitioner.
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Ishwar Si1agh Bakshi, Advocate-General for the State of Jammu
and Kashmir, M. C. Chag/a, R. N. Sachthey and S. K. Dho/akia,
c
for the respondent.
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!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 a 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 passed the impugned detention order in the following terms :
"OFFICE OF THE DISTRICT
MAGISTRATE,
BARAMULLA
ORDER
No. PDA/IMB/81
Dated 24-6-1970
Whereas I, S. S. Rizvi, District Magistrate, Baramula,
ain satisfied that with a 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 necessary so to do;
Now, therefore, in exercise of the powers conferred
by Section 3 (2) read with section 5 of the Jammu and
Kashmir Preventive Detention Act, 1964, I, S. S. Rizvi,
District Magistrate, Baramulla hereby direct that the said
Mohammad Maqbool Damnoo be detained in the C~n
tral Jail Srinagar, subject to such conditions as to mam-
1018
SUPREME COURT REPORTS
[1972] 2 S.CR.
tenance, discipline and punishment for breaches of discipli:ne as have been specified in the J & K Detenus
General Order, 1968.
No. Con/826-30
Dated 24-6-1970
Sd/-
District Magistrate,
Baramulla.
Copy forwarded :-
1. Sbri Abdul Majid Lone. Dy. S.P. Sopore in
duplicate for execution ol the order as provided by section 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.
"
B
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On the same date, the District Magistrate passed an order
under s. 8, read with s. 13-A of the Act directing that the petitioner be informed that it was against the public interest to disclose to him the grounds on which his detention was based. On
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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
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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
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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 a comprehensive
amended
petition. On October 9, 1971, thi: amended writ petition was filed
ltll this .Court. The State filed ·another affidavit in reply.
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M. M. DAMNOO V. J. & K. STATE (Sikri, C.J,)
1019
Mr. Garg, who appeared on behalf of the petitioner, raised
the following points before us :
( 1) that the J ammu & Kashmir Preventive Detention (Amendment)
Act, 1967
(J&K Act VIII of
1967 )-hereinafter referred to as the Amending Actwas invalid as it was not assented to by the Sadar-iRiyasat;
(2) that the proviso inserted by s. 4(2) in sub-s.
( 1) of s. 8 is bad because it suffers from excessive delegation;
(3) there has been violation oi Art. 21 and Art. 22
of the Constitution;
( 4) at any rate, the proviso is bad because it conflicts with s. 103 of the Cqnstitution of J ammu &
Kashmir;
( 5) that the detention order is bad because the detaining authority has not applied its mind; and
( 6) that the order of detention is bad because it
was not served or 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 contemplates 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 a Governor in place of the Sadar-i-Riyasat, and therefore, the Govemor
was competent to give assent to the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967.
H
In order to appreciate the points raised before us it is necessary to give a brief history of the various constitutional changes
which took
place in the State of Jammu and Kashmir.
H. H.
1020
SUPREME COURT REPC!RTS
[1972] 2 S.C.R.
the Maharaja of Jammu & Kashmir, in a 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 a proclamation forming a responsible Govt. of a Council of Ministers
headed by the Prime Minister which was to take steps to constitute
a National Assembly based on adult franchise to form a separate
Constitution for the State.
On June 20, 1949 Maharaja Sir Hari
Singh entrusted his legjsJative, executive and judicial functions
to his son, Yuvraj Karatll Singh for a temporary period~
On November 25, 1949 a proclamation was issued by Yuvraj
Karan Singh directing that the Constitution of India to be adopted by the Constituent Assembly of India be adopted by the Constituent Assembly in so far as it was applicable in Jammu and
Kashmir in order to govern the relationship of the State and the
contemplated Union of India.
The Constitution of India was adopted on November 26, 1949
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;
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B
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(b) the power of ~arliament to make laws for the
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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
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governing the accession of the State to the
Dominion of India as the matters with respect to which the Dominion Legislature
may make laws for tha~ State; and
(ii) such other matters in the said Lists as,
with the concurrence of the Government of
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the . State, the President may by order
specify.
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M. M. DAMNOO v. J. & K. STATE (Sikri, C.J,)
1021
Explanation-For the purposes of this article the Government
of the State means the person for the time being recognised by the
President as the Maharaj a 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 President may by order specify :
Provided that no such order which relates to
the matters specified in the Instrument of Accession of the Sta~ referred to in paragraph (i) of
sub-clause (b) shall be issued except in consultation with the Government of the State;
Provided further that no such order which relates to matters other than those referred to in
the last preceding proviso shall be issued except
with the concurrence of that Government.
E
(2) If the concurrence of the Government of the State referred
to in paragraph (ii) of sub-clause (b) of clause (1) or in the second
proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of
the State is convened, it shall be placed before such Assembly. for
such decision as it may take thereon.
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(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 Assembly of the State referred to in clause (2) shall be necessary before
the President issues such a notification.
On January 26, 1950 the Constitution (Application to Jammu
and Kashmir) Order, 1950 was made by the President. On April
~O, 1_95 L the Maharaj a ?f Jammu & Kashmir issued a proclamation m pursuance of which the Constituent Assembly of Jammu
and Kashmir was convened on November 5, 1951. On June 10,
1022
SUPREME COURT REPORTS
[1972) 2 s.c.R.
1952 the Basic Principles Committee of Jammu and Kaslun!r
Constituent Assembly submitted 1Jhe interim report to the Constituent Assembly and recommended that :-
(a) the form of the future constitution of Jammu &
Kashmir shall be wholly democratic,
( b) the· institution of hereditary Rulership shall be terminated, and
( c) the office of the Head of .the State shall be elective.
A
B
The <;:onstituent Assembly by a resolution adopted these recommendations. The following part of the resolution is rele".ant :
c
"Now, therefore, in pursuance of the resolution,
dated the 12th June, 1952, and having considered the
report of the Drafting Committee, this Assembly resolves:
1. (i) that the Head of the State shall be 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 a 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.
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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 November, 1952, the said art. 370 shall be operative with the
modification that for the Explanation in cl. (1) thereof,
the following Explanation is substituted, namely :-
"Explanation.-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 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."
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On May 14, 1954, in exercise of the powers conferred by cl.
( 1) of art. 370 of the Constitution, the President with the concurrence of the Government of the State of Jammu and Kashmir. made
the Constitution (Application to Jammu and Kashmir) Order,
1954. It superseded the Constitution (Application to Jammu and
Kashmir) Order, 1950. It applied various provisions of the Indian
.E
Constitution to the State of Jammu and Kashmir. Under Art. 35,
after clause (b) the following clause ( c) was added :
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"(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 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
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 a Rajpramukh, but without
prejudice to the provisions of the Constitution of that
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1024
SUPREME COURT REPORTS
[1972) 2 S.C:R,
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 provisions thereof shall be construed as references to the
Constitution or the provisions thereof as applied in relation to the said State;
(b) references ·to the Govemment of the said State
shall be construed as including references to the Sadari-Riyasat acting on the advice of his Council of Ministers ......... "
To art. 368 was added the following proviso:
"Provided further that no such amendment shall
have effect in relation to the State of Jammu and
Kashmir unless applied by order of the President under
clause (1) of article 370."
We may mention that, as far as the State of Jammu and
Kashmir was concerned, some entries in t'he Union List were
modified, entry 97 was omitted, and the State List and the Concurrent List were omitted.
On November 17, 1956 the Jammu and Kashmir Constitution
was adopted. Some sections came into force on that date and the
remaining sections 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 Government of the State of Jammu. and Kashmir, made the Constitution
(Application to Jammu and Kashmir) Second Amendment Order,
1965. Under this Order, for sub-cl. (b) of cl. (4) of art. 367 the
following clauses were inserted :
"( aa) references to the person for the time being recognised by the President on the recommendation of the
Legislative Assembly of the State as the Sadar-i-Riyasat
of Jammu and Kashmir, acting on the advice of the,
Council of Ministers of the State for the time being in
office, shall be construed as references to the -Governor
of Jammu & Kashmir;
'(b) references to the Government of the said State
shall be construed as including references' to the Gov~-
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M. M. DAMNOO v. J. & K. STATE (Sikri, C.J.)
nor of Jammu and Kashmir acting on the advice of his
Council of Ministers;
Provided that in respect of any period prior to the
10th day of April, 1965, such references shall be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers."
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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 a mere definition
inserted for the purpose of the article in accordance with the constiWtional 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 President were competent to impair the functioning of the Sadar-iRivasat 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 a fresh Constituent Assembly has to be convened to amend the Explanation.
He said that if the text of the
Constitution is explicit, effect must be given to it and it is not the
duty of the Courts to improve upon the Constitution because the
constitution-makers had not anticipated such a change.
It seems to us that the essential feature of art. 370, sub-clauses
l(b) and (d) is the necessity of concurrence of the State Government or the consultation of the State Government.
What the
Stak Government is at a particular time has to be determined in
the context of the Constitution of Jammu and Kashmir. The Explanation did no more 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 constitutional 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 amendment of the Constitution of Jammu anrl Kashmir.
Tf there is a
limitation it must be found in the Constitution of the State. Section
147 of the Constitution of Jammu and 'Kashmir itself provides that
under that section the Indian Constitution cannot be amended.
The learned counsel, relying on Sampat Prakash v. State of
Jammu and Kashmir( 1) contended that the only way of modifying
art. 370 is specified in art. 370(3) itself. He said that this was
(I) [19681 2 S.C.R.365.
1026
SUPREME COURT REPORTS
[1972] 2 S.C.R.
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 contained in the Explanation cannot apply to the words "government
of the State" then the meaning given in art. 367 ( 4), as amended,
will have to be given to it. If this meaning is given, it is quite
clear that the Governor is ·competent to give the concurrence stipulated in 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 Sadari-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 a Bill for the purpose in the
Legislative Assembly, and when the Bill is passed in each House
by a majority of not less than two-thirds of the total membership
of that House, it shall be presented to the Sadar-i-Riyasat for his
·assent and, upon such assent being given to the Bill,' the 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 :
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"18. In any Act made after the commencement of
this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of .any functionaries or of corporations having perpetual succession.
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to express its relation to the functionaries or corporations."
By virtue of this Act, if the ·Governor is the successor to the Sadari-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
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M. M. DAMNOO v. J, & K. STATE (Sikri, C.J.)
1027
State shall be vested in the Sadar-i-Riyasat and shall be
exercised by him either directly or through officers subordinate to him in accordance with this Constitution ..
,,
....
Section 27 provided for the election of the Sadar-i-Riyasat aud
s. 28 for the term of office.
It is quite clear from these provisions that the Sadar-i-Riyasat is really the name given to the head
of the State.
Under the State Constitution as amended the Head
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-iRivasat. ·but the mode of appointment would not make him any
th~ less a successor to the Sadar-i-Riyasat.
Both are heads of
the State.
Mr. Garg argued that the amendment of ss. 26 and 27 of the
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 a positive and a
negative content and that in exercise of the power of
amendment Parliament cannot destroy the structure of
the Constitution, but it can only modify the provisions
thereof within the framework of the original instrument
for its better effectuation. If the fundamentals would .
be amenable to the ordinary process of amendment with
a special majority, the argument proceeds, the institution of the President can be abolished, the parliamenWry executive can be removed. the fundamental rights
can be abrogated, the concept of federalism can be
obliterated and in short - the
sovereign
democratic
republic can be converted into a totalitarian system of
go\ern'l'lent.
There is considerable force in this argument."
"
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 alteration 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 a council of ministers,
and the only change effected is in his designation and the mode
(J) [1967! 2 S.C.R. 762.
1028
SUPREME COURT REPORTS
[1972] 2 S.C.R.
-Of his appointment.
It is not as if the State Government, by such
.a change, is made irresponsible to the State Legislature, or its
fundamental character as a responsible Government is alterad.
Just as a change m the designation of the head of that Government was earlier brought about by the introduction of the office
-0f Sadar-i-Riyasat, so too a change had been brought about in
his designation from that of Sadar-e-Riyasat to
the Governor.
That was necessitated by reason of the Governor having been
substituted in place of Sadar-e-Riyasat.
There is no quesfion of
such a change being one in the character of that Government
from a democratic to a non-dem9cratic system.
A comprehensive 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 a definition clause.
What
has been done is that by adding els. ( aa) and (b) a definition is
supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of art.
370(1) by the back-door.
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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
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M. M. DAMNOO v. J. & K. STATE (Sikri, C.J.)
1029
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 himself.
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 writing 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.