# SAMPAT PRAKASH v. STATE OF JAMMU & KASHMIR & ANR

- **Citation:** [1969] 2 S.C.R. 365
- **Court:** Supreme Court of India
- **Decided:** 1968-10-10
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sampat-prakash-v-state-of-jammu-kashmir-anr-4505
- **Pages:** 15

## Headnote

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SAMPAT PRAKASH
v.
STATE OF JAMMU & KASHMIR & ANR.
October 10, 1968
[M.
HIDAYATULLAH, CJ., J. M. SHELAT, V. BHARGAVA,
G. K. MITTER AND C.A. VAIDIALINGAM, JI.]
Constitution of India, 1950 (llf applied to Jammu and Kashmir)
Artz. 35(c) and 370-lammu and Kashmir Preventive Detention A.ct
(J & K 13 of 1964) s. BA-Validity of detention under without
reference to Advisory Board-Scope of A.rt. 370-Power of President to
extend period of immunity of State laws even if fundamental rights are
i11fringed.
After the accession of the State of J ammu and Kashmir to India. in
Art. 35 of the Constitution of India, in its application to the State, cl. (c)
"as introduced in 1954 providing protection to any
law relating
to
preventive detention in the State against invalidity on the ground
of
infringement of any of the fundamental rights guaranteed by Part Ill of
the Constitution. The protection was limited to a period of five vears.
In 1956, the Constituent Assembly of the State completed its work by
framing a Constitution for the State and it came into force on
26th
Januray 1956. In 1959 the period of 5 years in Art. 35(c) was extended
to 10 and in 1964, it was further extended to 15 years by Orders passed
by the President of India under Art. 370(1). On 18th March 1968,
the petitioner was detained by the District Magistrate under the Jammu
and Kashmir Preventive Detention Act, 1964. The State Government
acting under s. 13A of the Act continued the detention without making
any reference to the Advisory Board.
In a petition under Art. 32 challenging his detention the petitionei
contended that, the orders making the modifications in 1959 and 1964
could not be validly passed by the President, because •
(1 ) the Article contained only temporary provisions which ceased to
be effective after the Constituent Assembly of the State had completed
its work by framing a Constitution for the State;
(2) Under Art. 370(2) the, power of the President, depending on
the concurrence of the State Goverrunent, must be exercised before the
dissolution of the Constituent Assembly of the, State;
(3) Under Art. 370(1), at the time of applying any provision of the
Constitution. to the State, the President was competent to make modification and exceptions, but after a provision of the Constitution had been
applied the power under the Article ceased;
( 4) Since Art. 3 68 relating to amendment of the Constitution with
a proviso added to ii is applied to the State Art. 370 was no longer applioable for amending or modifying the provisions of the
Constitution
applied to the State;
( 5) The power of making modifications under the Article should be
limited to making minor alterations and not to abrogate an
Article
applied to the State; and
(6) The modifications made by the Presidential orders
under Art.
370 had the effect of abridging the fundamental rights of citizens of
J66
SUPREME COURT REPORTS
(1969] 2 S.C.R.
Kashmir under Art. 22 and other Articles of Part III, after they had
been applied to the State and so were void under Art. 13 of the Constitution.
HELD: (I) The political situation that existed when Art. 370 was
incorporated in the Constitution had not materially altered either in 1959
or 1964 and the purpose of introducing it was to empower the President
to exercise his discretion in applying the Indian Constitution while that
situation remained unchanged.
Article 370(3) envisages that the Article
will continue to be ope-rative until and can cease to be operative only
if, on the recommendation of Constituent Assembly of the State,
the
President makes a direction to that effect.
No such recommendation
was made nor was any order made by the President.
On the contrary,
the Constituent Assembly of the State made a recommendation that the
Article should be operative with a modified Explanation. Therefore the
Article did not cease to be operative. [372 C-D; 373 A-Bl
(2)Article 370(2) only refers to the concurrence given by the Government of the State

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SAMPAT PRAKASH
v.
STATE OF JAMMU & KASHMIR & ANR.
October 10, 1968
[M.
HIDAYATULLAH, CJ., J. M. SHELAT, V. BHARGAVA,
G. K. MITTER AND C.A. VAIDIALINGAM, JI.]
Constitution of India, 1950 (llf applied to Jammu and Kashmir)
Artz. 35(c) and 370-lammu and Kashmir Preventive Detention A.ct
(J & K 13 of 1964) s. BA-Validity of detention under without
reference to Advisory Board-Scope of A.rt. 370-Power of President to
extend period of immunity of State laws even if fundamental rights are
i11fringed.
After the accession of the State of J ammu and Kashmir to India. in
Art. 35 of the Constitution of India, in its application to the State, cl. (c)
"as introduced in 1954 providing protection to any
law relating
to
preventive detention in the State against invalidity on the ground
of
infringement of any of the fundamental rights guaranteed by Part Ill of
the Constitution. The protection was limited to a period of five vears.
In 1956, the Constituent Assembly of the State completed its work by
framing a Constitution for the State and it came into force on
26th
Januray 1956. In 1959 the period of 5 years in Art. 35(c) was extended
to 10 and in 1964, it was further extended to 15 years by Orders passed
by the President of India under Art. 370(1). On 18th March 1968,
the petitioner was detained by the District Magistrate under the Jammu
and Kashmir Preventive Detention Act, 1964. The State Government
acting under s. 13A of the Act continued the detention without making
any reference to the Advisory Board.
In a petition under Art. 32 challenging his detention the petitionei
contended that, the orders making the modifications in 1959 and 1964
could not be validly passed by the President, because •
(1 ) the Article contained only temporary provisions which ceased to
be effective after the Constituent Assembly of the State had completed
its work by framing a Constitution for the State;
(2) Under Art. 370(2) the, power of the President, depending on
the concurrence of the State Goverrunent, must be exercised before the
dissolution of the Constituent Assembly of the, State;
(3) Under Art. 370(1), at the time of applying any provision of the
Constitution. to the State, the President was competent to make modification and exceptions, but after a provision of the Constitution had been
applied the power under the Article ceased;
( 4) Since Art. 3 68 relating to amendment of the Constitution with
a proviso added to ii is applied to the State Art. 370 was no longer applioable for amending or modifying the provisions of the
Constitution
applied to the State;
( 5) The power of making modifications under the Article should be
limited to making minor alterations and not to abrogate an
Article
applied to the State; and
(6) The modifications made by the Presidential orders
under Art.
370 had the effect of abridging the fundamental rights of citizens of
J66
SUPREME COURT REPORTS
(1969] 2 S.C.R.
Kashmir under Art. 22 and other Articles of Part III, after they had
been applied to the State and so were void under Art. 13 of the Constitution.
HELD: (I) The political situation that existed when Art. 370 was
incorporated in the Constitution had not materially altered either in 1959
or 1964 and the purpose of introducing it was to empower the President
to exercise his discretion in applying the Indian Constitution while that
situation remained unchanged.
Article 370(3) envisages that the Article
will continue to be ope-rative until and can cease to be operative only
if, on the recommendation of Constituent Assembly of the State,
the
President makes a direction to that effect.
No such recommendation
was made nor was any order made by the President.
On the contrary,
the Constituent Assembly of the State made a recommendation that the
Article should be operative with a modified Explanation. Therefore the
Article did not cease to be operative. [372 C-D; 373 A-Bl
(2)Article 370(2) only refers to the concurrence given by the Government of the State before the Constituent Assembly was convened
and makes no mention at all of the completion of the work of the Constituent Assembly or its dissolution.
(3) The1 power under the Article is to be exercised from time to
time and includes within it the power to add, amend, vary o'r rescind.
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Article 367 lays down that, unless the context otherwise requires,
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the General Clauses Act, 1897, shall apply for the interpretation of the
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Constitution. Therefore s. 21 of the General Clauses Act, under which
a power to issue a rioti:fication or order includes a power to add, amend,
vary or rescind it, is applicable to the power of the President under Art.
3 70 : If it were held that s. 21 of the General Clauses Act is not to be
applied to the interpretation of the Constitution, it will lead to the anomaly
that when once rules are made under the ruie making powers under
various Articles such as Arts. 77(3), 166(3) and 309, they would be
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inflexible.
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Further the legislative history of the Article shows that it was en•
visaged that the President would have to take into account the situation
existing in the State when applying a provision of the Constitution and
that such situations arise from time to time : There was the possibility
that, when applying a particular provision, the situation might demand
an exception or modification of the provision applied; but
subsequent
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changes in the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferrinJI
on the President the power of making Orders from time to time under
Art. 370. [375 E-Hl
(4) The proviso to Art. 368, serves the purpose that amendments
.to the Constitution should be made applicable to the State only with the
concurrence of the State Government and that after such concurrence
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is available the amendments should take effect when an order is mado
under Art. 370 of the Constitution. Therefore, the powers of the Presi·
dent under Art. 370 have to be exercised and the applicability of Art.
368 to the State does not curtail the President's power under Art. 370.
[376 D-F]
(5) There is no reason to limit the word 'modification' in Art. 370(1)
only to such modification as do not make any 'radical transformation'.
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[377 HJ
Puranlal Lakhanpal v. The President of India, [1962] 1 S.C.R. 688,
692, followed.
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SAMPAT v. J. & K. STATE (Bhargava, J.)
367
(6) Under Art. 35(c) as originally enacted, the applicability of the
provisions of Part Ill for the purpose of judging the validity of a law
relatmg to preventive detention made by the State Legislature was postponed for a period of five years.
The object ol the suosequent Orders
of 1959 and 1964 was to extend the period of protection. The result
of the extension is that a detenu cannot, during the period of protection
challenge the law on the groun.d of its being inconsistent with Art 22.,
and not to infringe or abridge fundamental rights. [378 E, H]
ORIGINAL Ju&rsmcnoN : Writ Petition No. 11 of 1968.
Petition under Art. 32 of the Constitution of India for the
enforcement of the fundamental rights.
M. K. Ramamurthi, Baroobhai Mehta, Vineet Kumar and
Shyama/a Pappu, for the petitioner.
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C. K. Daphtary, Attorney-General, B. R. L.
I~engar and
R. N. Sachthey, for the respondents.
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R. K. Garg, for intervener No. 1.
R. V. S. Mani, for intervener No. 2.
The Judgment of the Court was delivered by
Bhargava, J. This petition under Article 32 of the Constitution of India (hereinafter referred to as "the Constitution") has
/been presented by Sampat Prakash who was the General Secretary of the All Jammu & Kashmir Low-Paid Government Servants Federation. On October 25, 1967, Government employees
and teachers of the Jammu Province held a mass meeting making
a demand that dearness allowance at Central rates should be paid
to them. They further resolved that, if the Government did not
accept this demand, the employees and the teachers would go
on 'Dharna' on 5th November 1967. The Revenue Minister of
the Jammu & Kashmir State promised dearness allowance at half
the rates applicable to Central Government servants. No dhama
was started on 5th November 1967, but, on 17th November, 1967,
a notice was given on behalf of the employees to the Government that there would be a hunger strike on 18th November, 1967.
On that day, the employees went on a hunger strike for one day
outside the residence of the Chief Minister. Then, there was a
mass meeting on 27th November 1967, in which it was announced
that, if their demands were not met, the employees would go on
a pen-down strike on 2nd December, 1967. The Government
failed to comply with this demand. Then, between 4th and 10th
Decem~r, 1967, the employees went on a strike-first a pendown stnke and, later, a general strike. Between this period, on
5th December, 1967, there was another mass meeting which was
addressed by the petitioner. On 1 lth December, 1967, even the
workers of the various industries in the State went on a general
strike i!1. sympathy v:ith. the Government employees. On that day,
the pelltioner was d1sm1ssed from government service and on 12th
December, 1967, he addressed another mass meeting. In view
368
SUPREME COURT REPORTS
[1969] 2 S.C.R.
of these activities of the petitioner and the continuance of such a
situation, the District Magistrate of Jammu, on 16th March,
1968, made an order of detention of the petitioner under section
3 of the Jammu & Kashmir Preventive Detention Act No. 13 of
1964 (hereinafter referred to as "the Act") and, on 18th March,
1968, the petitioner was actually placed under detention. The
grounds of detention were served on the petitioner on the 26th
March, 1968 and the State Government granted approval to the
order of detention on 8th April, 1968. The detention of the
petitioner was continued without making a reference to the Advisory Board, as the State Gove=ent purported to act under
s. 13A of the Act. The present petition was filed by the petitioner on 3rd May, 1968.
During the preliminary hearing of this petition, Mr. Ramamurthy, representing the petitioner, raised a ground that s. 13A
of the Act was ultra vires the Constitution as contravening the
provisions of Art. 22 of the Constitution. That question was
referred by the Constitution Bench of the Court to a larger Bench
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and came before the Full Court. On this occasion, the Court
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held that, in view of clause ( c) of Art. 35 of the Constitution
introduced in the Constitution in its application to the State of
Jammu & Kashmir, the point that had been raised stood answered
by the addition of this clause and, unless the clause its.elf was
challenged, the point raised on behalf of the detenu did not arise.
In this view, that reference was dissolved and the case has been
heard by the Constitution Bench.
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On the return of the reference, the main point which has been
argued on behalf of the petitioner is based on the fact that Art.
35 ( c) of the Constitution, as initially introduced by the Constitution (Application to Jammu & Kashmir) Order, 1954 (C.0. 48),
had given protection to any law relating to preventive detention
in J ammu & Kashmir against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III
of the Constitution for a limited period of five years only.
This
clause, as introduced in 1954, read as follows :-
"No law with respect to preventive detention, made
by the Legislature of the State of Jammu & Kashmir,
whether before or after the commencement of the Constitution (Application to Jammu & 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."
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SAMPAT v. J. & K. STATE (Bhargava, J.)
369
It was urged that the five years mentioned in this clause expired
in 1959, and, consequently, the Act, which was passed in 1964,
did not get immunity from being declared void on the ground of
inconsistency with Art. 22 of the Constitution.
It, however,
appears that for the words "five years" in Art. 35 ( c), the words
"ten years" were substituted by the Constitution (Application fo
Jammu & Kashmir) Second Amendment Order, 1959 (C.0. 59),
which was pass.eel before the expiry of those five years and, subsequently, for the words "ten years" so introduced, the words
"fifteen years" were substituted by the Constitution (Application
to Jammu and Kashmir) Amendment Order, 1964 (C.O, 69).
This modification was also made before the expiry of the period
of ten years from the date on which the Constitution ( Application to Jammu and Kashmir) Order, 1954 was passed. On these
facts, the point raised on behalf of the detenu was that these two
modifications in 1959 and 1964, substituting "ren years" for
"five years'', and "fifteen years" for "ten years", were themselve~
void on the ground that orders making such modifications could
not be validly passed by the President under Art. 370(1) of the
Constitution in the years 1959 and 1964.
Article 370 of the Constitution is as follows .-
"370. ( l) Notwithstanding anything in this Constitution,-
(a) the provisions of article 238 shall not apply in
relation io the State of J ammu & Kashmir;
(b) the power of Parliament to make laws for the
said State shall be limited to--
( i) those matters in the Union List and the
Concurrent List which,
in
consultation
with the Government of the State,
are
declared by the President to correspond to
matters specified in
the Instrument of
Accession governing the accession of the
State to the Dominion of India as
the
matters with respect to which the Dcminion Legislature may make laws for that
State; and
(ii) such other matters in the said Lists
as,
with the concurrence of the
Government
of the State, the President may by order
specify.
Explanation.-For the purposes of this article, the
Government of the State means the person for the time
being recognised by the President as the Maharaja of
J ammu & Kashmir acting on the advice of the Council
370
SUPREME COURT REPORTS
[1969] 2
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) of that clause be given before the
Constituent
shall apply in relation to that State subject to
such exceptions and modifications as the President may be order specify :
Provided that no such order which relates to
the matters specified in the Instrument of Accession of the State 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.
( 2) If the concurrence of the Government of the
State referred to in paragraph (ii) oJ sub-clause (b)
of clause ( 1) or in the second proviso to sub-clause
( d) of that clause be given before the Constitutent
Assembly for the purpose of framing the Constitution
of the State is convened, it shall be placed before such
Assembly for such decision as it may take thereon.
( 3) Notwithstanding anything
in the foregoing
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."
The first argument was that this article contained temporary
provisions which ceased to be effective after the Constituent
Assembly convened for the purpose of framing the Constitution
-0f the Jammu & Kashmir State had completed its task by framing the Constitution for that State. Reliance was placed on the
historical background in which this Art. 370 was included in
the Constitution to urge that the powers under this article were
intended to be conferred only for the limited period until the
Constitution of the State was framed, and the President could
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SAMPAT V, J. & K. STATE (Bhargava, /.)
371
not resort to them after the Constituent Assembly had completed
its work by framing the Constitution of the State. The background or the legislative history, to which reference was. made,
was brought to our noiice by learned counsel by drawmg
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attention to the speech of the Minister, Sri N.
Gopalaswam1
Ayyangar when he moved in the Constitue~t As~embly clause
306A of the Bill, which now corresponds with Arttcle 370 of t~e
Constitution.
It was stated by him that conditions in Kashmir
were special and required special treatment. The special circumstances, to which reference was made by him were :-
( 1 ) that there had been a war going on within the
limits of Jammu & Kashmir State;
(2) that there was a cease-fire agreed to at the
beginning of the year and that cease-fire was still on;
( 3) that the conditions in the State were still unusual and abnormal and had not settled down;
( 4) that part of the State was still in the hands of
rebels and enemies;
( 5) that our country
was
entangled
with
the
United Nations in regard to J ammu & Kashmir and it
was not possible to say when we would be free from
this entanglement;
(6) that the Government of India had committed
themselves to the people of
Kashmir in certain respects which commitments
included
an
undertaking
that an opportunity would be given to the people of the
State to decide for themselves whether they would remain with the Republic or wish to go out of it; and
( 7) that the will of the people expressed through
the Instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere
of Union Jurisdiction over the State.
Learned counsel urged that, in this background, Art. 370 of the
Constitution could only have been intended to remain effective
until the Constitution of the State was framed and the will of
the people of Jammu & Kashmir had been expressed and, thereafter, this article must be held to have become ineffective, so
that the modifications made by the President in exercise of the
powers under this article, subsequent to the enforcement of the
Constitution of the State, would be without any authority of Jaw.
The Constitution of the State came into force on 26th January,
1956 and, therefore, the two Orders of 1959 and 1964 passed
by the President in purported exercise of the power under Art. 370
were void. It was also urged that the provisions of clause (2) of
Art. 370 support
this view, because it directs
that, if the
372
SUPREME COURT REPORTS
(1969] 2 S.C.R.
concurrence of the Government of the State is given under para
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(ii) of sub-clause (b) of clause ( 1) or under the second proviso to
sub-clause ( d) of that clause before the Constituent Assembly
for the purpos.e of framing the Constitution of the State is convened, that concurrence has to be placed before such Assembly
for such decision as it may take thereon. From this, it was sought
to be inferred that the power of the President, depending on the
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concurrence of the Government of the State, must be exercised
before the dissolution of the Constituent Assembly of the State,
so that the concurrence could be placed for its decision, and that
power must be held to cease to exist after the dissolution of the
Constituent Assembly when that course became impossible.
·
Wr; are not impressed by either of these two arguments advanced by Mr. Ramamurthy. So far as the historical background
is concerned, the Attorney-General appearing on behalf of the
Government also relied on it to urge that the provisions of
Art. 370 should be held to be continuing in force, because the
situation that existed when this article was incorporated in the
Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his
discretion in applying the Indian Constitution while that situation
remained unchanged.
There is considerable force in tliis
submission.
The legislative history of this article cannot, in these
circumstances, be of any assistance for holding that this article
became ineffective after the Constituent Assembly of the State
had framed the Constitution for the State.
The second submission based on clause (2} of Art. 370 does
not find support even from the language of that clause which
only refers to the concurrence given by the Government of the
State before the Constituent Assembly was convened, and makes
no mention at all of the completion of the work of the Constituent Assembly or its dissolution.
There are, however, much stronger reasons for holding that
the provisions of this article continued in force
and remained
effe.ctive even after the Constituent Assembly of the State had
passed the Constitution of the State. The most important provision in this connection is that contained in clause
( 3) of the
article which lays down that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as the President may specify by public notification, 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.
This
clause clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommenaation of the Constituent Assembly of the State, the President
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SAMPAT v. J, & K. STATE (Bhargava, !.)
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makes a direction to that effect. In fact, no such recommendation
was made by the Constituent Assembly of the State, nor was any
Order made by the President declaring that the article shall cease
to be operative. On the contrary, it appears that the Constituent Assembly of the State made
a recommendation
that the
article should be operative with one modification to be incorporated in the Explanation to clause ( 1) of the article. This modification in the article was notified by the President by Ministry of
Law Order No. C.O. 44 dated 15th November,
1952, and laid
down that, from the 17th November, 1952, the article was to
be operative with substitution of the new Explanation for the old
Explanation as it existed at that time.
This makes it very clear
that the Constituent Assembly of the State did not desire that this
article should cease to be operative and, in fact,
expressed its
azreement to the continued operation of this article by _making a
recommendation that it should be operative with this modification
only.
Further reference may also be made to the proviso added to
Art. 368 of the Constitution in its application to the State of
Jarnmu & Kashmir, tmder which an amendment to the Constitution made in accordance with Art. 368 is to have no effect in
relation to the State of J ammu & Kashmir unless applied l:y Order
of the President under clause ( 1) of Article 370. The proviso,
thus, clearly requires that the powers of the President under Art.
370 must be exercised from time to time in order to bring into
effect in Jammu & Kashmir amendments made by Parliament in
the Constitution in accordance with Art. 368. In view of these
provisions, it must be held that Art. 3 70 of the Constitution has
never ceased to be operative and there can be no challenge on this
ground to the validity of the Orders passed by the President in
exercise of the powers conferred by this Article.
The nexL§ubmission 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 Art. 370 of the Constitution, the power that is conferred on the President is for the
purpose of applying the provisions of the Constitution to J ammu
& Kashmir and not for the purpose of making amendments in the
Constitution as applied to that State. The interpretation sought
to be placed was that, at the time of applying any provision of
the Constitution to the State of J ammu & Kashmir, the President
is competent to make modifications and exceptions therein· but
once any provision of the Constitution has been applied, the ~wer
under Art. 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 & Kashmir. It was
374
SUPREME COURT REPORTS
(1969] 2 S.C.R.
further urged that the P1esident's power under Art. 370 should
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not be interpreted by applying section 21 of the General Clauses
Act, because a Constitutional power cannot be equated with a
power conferred by an Act, rule, bye-law, etc.
The argument, in our opinion, proceeds on an entirely incorrect basis. Under Art. 370(l)(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 Art.
370(1) (c), became applicable when the Constitution came into
force, shall apply in relation to the State of Jammu & 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 & 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 Art. 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 & 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 Art. 367 of the Constitution lays down that, unless the context otherwise requires, the
General Clauses Act, 1897, shall, subject to any adaptations and
modifications that may be made therein under article 372, apply
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for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of Dominion of India. This
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provision made by the Constitution itself in Art. 367, thus, specifically applied the provisions of the General Clauses Act to the
interpretation of all the articles of the Constitution which include Art. 370. Section 21 of the General Clauses Act is as
follows :-
"Where, by any Central Act or Regulation, a power
to issue notifications, orders, rules, or by-laws is conferred, then that power includes a power, exercisable in
the like manner and subject to the like sanction and
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SAMPAT v. J. & K. STATE (Bhargava, I.)
375
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 s. 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 Cot;IBtitution.
As an example,
under Art. 77 ( 3), the President, and, under Art. 166 ( 3), the
Governor of a State are empowered to make rules for the more
convenient transaction of the business of th.e
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 Art. 309 of the Con.
stitution. That power must 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 s. 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 Art. 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 & Kashmir that the Constituent Assembly framing the
Constitution decided that the Constitution should not become
applicable to Jammu & Kashmir under Art. 394, under which it
came into effect in the rest of India, and preferr.ed 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
v.:a~ clearly ~e i;iossibi.lity that, when applyin~ a particular proV!Slon, 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.
376
SUPREME COURT REPORTS
[1969) 2 sc.R.
This could only be brought about by conferring on the President
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the power of making orders from time to time under Art. 370 and
this power must, therefore, be held to have been conferred on
him by applying the provisions of s. 21 of the General Clauses
Act for the interpretation of the Constitution.
The next point urged was that Art. 3 68 of the Constitution
having l;>een applied to J ammu & Kashmir with a proviso added
to it, there now exists a provision relating to amendment of the
Constitution as applied to J ammu & Kashmir under this article
and, consequently, while such special provision for this purpose
exists, we should interpret Art. 370 as being no longer applicable
for amending or modifying the provisions of the Constitution
applied to that State. This argument, in our opinion, is based on
a wrong premise. Art. 368 has been applied to Jammu &
Kashmir primarily with the object that amendments made by the
Parliament in the Constitution of India as applicable in the whole
of the country should also take effect in the State of Jammu &
Kashmir. The proviso, when applying this article, serves the purpose that those amendments made should be made applicable to
the State of J ammu & Kashmir only with the concurrence of the
State Government and, after such concurrence is available, these
amendments should take effect when an order is made under
'Art. 370 of the Constitution. Thus, Art. 368 is not primarily
intended for amending the Constitution as applicable in J ammu
& Kashmir, but is for the purpose of carrying the amendments
made in the Constitution for the rest of India into the Constitution as applied in the State of Jammu & Kashmir. Even, in this
process, the powers of the President under Art. 370 have to be
exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Art. 370.
It was also urged that the power of making modifications and
exceptions in the orders made under Art. 370(1) (d) should at
least be limited to making minor alterations and should ·not cover
the power to practically abrogate an article of the Constitution
applied in that State. That submission is clearly without force.
The challenge to the validity of Art. 35(c) introduced in the
Constitution as applied to Jammu & Kashmir on this ground was
repelled by this Court in P. L. Lakhanpal v. The State of Jammu
& Kashmir('). Subsequently, the scope of the powers of making
exceptions and modifications was examined in greater details by
this Court in Puranlal Lakhanpal v. The President of India and
Others(').
Dealing with the scope of the word "modification"
as used in Art. 370(1), the Court held :-
"But, in the present case, we have to find out the
meaning of the word "modification" used in Art. 370
(!) [195'] 2 S.C.ll. 1101.
(2) [1962] S.C.R. 688, 692.
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SAMPAT v. J. Ji;. K. STATE (Bhargava, J.)
377
( 1) in the context of the Constitution.
As we have
said already, the object behind enacting Art. 370(1)
was to recognise the special position of the State of
Jammu & Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by
order specify.
We have already pointed out that the
power to make exceptions implies that President can
provide that a particular provision of the Constitution
would not apply to that State. If, therefore, the power
is given to the President to efface in effect any provision
of the Constitution altogether in its application to the
State of Jammu & Kashmir, it seems that when he is
also given the power to make modifications that power
should be considered in its widest possible amplitude.
If he could efface a particular provision of the Constitution altogether in its
application to
the State of
Jammu & Kashmir, we see no reason to think that the
Constitution did not intend that he should have the
power to amend a particular provision in its application
to the State of J ammu and Kashmir. It seems to
us
that when the Constitution used the word "modification" in Art. 370 (1), the intention was that the President would have the power to amend the provisions of
the Constitution if he so thought fit in their application to the State of Jammu and Kashmir."
Proceed\ng further, and after discussing the meaning of the word
"modify'', the Court held :-
"Thus, in law, the word "modify" may just mean
"vary", i:e., amend, and when Art. 370( 1) says that
the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he
may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu & Kashmir.
We are, therefore, of opinion that in the context of the
Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370( 1)
and in that sense it includes an amendment. There is
no reason to limit the word "modifications" as used in
Art. 370(1) only to such modifications as do not make
any "radical transformation".
This decision being binding on us, it is not possible to accept the
submission urged by counsel.
L3 Sup. Cl/69-i
378
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Lastly, it was argued that the modifications made in Art.
35(c) by the Constitution (Application to Jammu ~ Kashmir)
Orders of 1959 and 1964 had the effect of abridging .the fundamental right of the citizens of Kashmir under Art. 22 and other
article contained in Part III after they had already been applied
to the State of Jammu & Kashmir, and an order of the President
under Art. 370 being in the nature of law, it would be void under
Art. 13 of the Constitution. Article 35 ( c) as originally introduced in the Constituion as applied to Jammu & Kashmir laid
down that no law with respect to preventive detention maae 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 tl1e 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 fundaJJ].ental 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 Art. 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, Art.
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 &
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 Art. 370(1). We have already held that the power to modify
in clause ( d) also includes the power to subsequendy 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 appredata 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 subseque;nt Orders
of 1959 and 1964 was to extend the period of protection to the
preventive detention law and not to infringe or abridge the fundaA
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SAMPAT v. J. & IC STATE (Blwrgava, J.)
379
mental rights, though the result of the extension is th3t a det~nu
cannot, during the period of protection, challenge the law on the
ground of its being inconsistent with Art. 22. Such <::lxtenslon is
justified prima facie by the exceptional state of affairs which
continue to exist as before .
The provision made in Art. 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 Art.