P.L. LAKHANPAL Vs THE STATE OF JAMMU AND KASHMIR

SUPREME COURT OF INDIA JUDGMENTS

(1956) AIR(SC) 197 : (1956) CriLJ 421 : (1956) SCA 706 : (1956) SCJ 236 : (1955) 2 SCR 1101

SUPREME COURT OF INDIA

FULL BENCH

( Before : Sudhi Ranjan Das, Acting C.J.; Syed Jaffer Imam, J; Bhagwati, J; B. P. Sinha, J; B. Jagannadhadas, J )

P.L. LAKHANPAL — Appellant

Vs.

THE STATE OF JAMMU AND KASHMIR — Respondent

Decided on : 20-12-1955

Constitution of India, 1950 – Article 13, Article 21, Article 22, Article 35
Jammu and Kashmir Preventive Detention Act, 2011 – Section 3(1), Section 8(1)

JUDGMENT

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 u/s 3 of the Jammu and Kashmir Preventive 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.

2. 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, he was closely associated with the “Quit Kashmir movement“. Last year he wrote a book entitled “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 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”.

3. 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, he 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 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 he “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 handed 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 he 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 paper-book) 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, u/s 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011.
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”.

4. 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.
Order :
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, Amira Kadal, 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. 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”.

5. 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 Constitution as extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954”.

6. 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 himself 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”.

7. 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.

8. 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”.

9. 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”.

10. 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-section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State if the 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”.

11. 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 interest 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 inconsistency 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.

12. 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 concurrence 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 1 and 370, the specified provisions of the Constitution 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”.

13. 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 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.

14. 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 respondent, 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.

15. Realizing the difficulty in the petitioner’s way in view of the provisions of clause (c) added as aforesaid 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 to specify the exceptions and modifications to the provisions of the Constitution (other than articles 1 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.

16. 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 support 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 appeared 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.

17. 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.

PURANLAL LAKHANPAL Vs. THE PRESIDENT OF INDIA AND OTHERS

SUPREME COURT OF INDIA JUDGMENTS

SUPREME COURT OF INDIA

FULL BENCH

( Before : P. B. Gajendragadkar, J; N. Rajagopala Ayyangar, J; K. N. Wanchoo, J; K. C. Das Gupta, J; A. K. Sarkar, J )

PURANLAL LAKHANPAL — Appellant

Vs.

THE PRESIDENT OF INDIA AND OTHERS — Respondent

Decided on : 30-03-1961

Constitution of India, 1950 – Article 307, Article 307(1), Article 81, Article 81(1)
Cases Referred

In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950, (1951) 2 SCR 747

JUDGMENT

Wanchoo, J.—This petition challenges the constitutionality of a provision in the Constitution (Application to Jammu and Kashmir) Order, 1954 (hereinafter called the Order), made by the President under Art. 370(1) of the Constitution. The case of the petitioner is that he is registered as an elector in the Parliamentary Constituency of Delhi. As such he has a right to stand for election from any Parliamentary constituency in India. Six seats are allotted to the State of Jammu and Kashmir in the House of the People (Lok Sabha). Ordinarily, the election to these seats should have been by direct election from the territorial constituencies in the States as provided by Art. 81(1); but the President modified that Article in so far as it relates to the State of Jammu and Kashmir by Para. 5(c) of the Order in these words :-

“Article 81 shall apply subject to the modification that the representatives of the State in the House of the People shall be appointed by the President on the recommendation of the Legislature of the State.”

2. The petitioner contends that the President had exceeded his powers when he made this modification, for he thereby substituted direct election to the House of the People by nomination which he could not do. This, it is said, was a radical alteration in Art. 81 as applied to the State of Jammu and Kashmir and was not justified as a modification under Art. 370(1). He therefore prays that the modification made may be declared unconstitutional and a writ of quo warranto be issued against the persons nominated to the House of the People on the recommendation of the Legislature of the State of Jammu and Kashmir prohibiting them from acting as members of Parliament.

3. Apart from the question whether the petitioner has any fundamental right to maintain this petition under Art. 32, we are of opinion that there is no force in it. The relevant part of Art. 370 with which we are concerned is in these words :-

“Notwithstanding anything in this Constitution, –

………………………………………………………….
(d) such of the other provisions of this Constitution shall apply in relation to that State (i.e., the State of Jammu and Kashmir) subject to such exceptions and modifications as the President may by order specify.”

4. Article 370 clearly recognises the special position of the State of Jammu and Kashmir and that is why the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The President thus has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit to make. The contention on behalf of the petitioner is that the modification envisaged in Art. 370(1) did not mean amendment of the Constitution for the purpose of application to that State and would not certainly include such amendment as would make a radical alteration in the provisions of the Constitution. In this connection he relies on the observations of Kania, C.J., and Mahajan, J., in In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950, . Kania, C.J., after dealing with the meaning of the word “modify” seems to have held that the word “modify” as used in the context in which he was speaking only implied alteration without radical transformation. Mahajan, J., also said that the word “modification” used in the context before him did not involve “any material or substantial alteration”. The petitioner therefore urges that as the Order substituted direct election by nomination there has been a radical alteration in Art. 81 by the President in its application to the State of Jammu and Kashmir and therefore is not justified by the word “modification” used in Art. 370(1) and the President had exceeded his power under that Article in making this radical alteration.

5. Before we consider what the word “modification” means in the context of Art. 370(1), let us see what the President has actually done in the matter of modification of Art. 81. The modification prescribes that the six seats in the House of the People from the State of Jammu and Kashmir would be filed by nomination by the President on the recommendation of the Legislature of that State. Now in form the seats will be filled by nomination by the President; but in reality what the modification provides is indirect election in place of direct election to these seats in the House of the People. The modification lays down that the President will nominate members to these six seats on the recommendation of the Legislature of the State. The President must therefore nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected by the Order.

6. But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of Art. 81(1), the question still remains whether such a modification is justified by the word “modification” as used in Art. 370(1). We are here dealing with the provision of a Constitution which cannot be interpreted in any narrow or pedantic sense. The question that came for consideration in In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950, was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it used the word “modification” was that the Central Government would extent certain laws to Part C States without any radical alteration in them. But in the present case we have to find out the meaning of the word “modification” used in Art. 370(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 and 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 the 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 and 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 and 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 Jammu 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. In the Oxford English Dictionary (Vol. VI) the word “modify” means inter alia “to make partial changes in; to change (as object) in respect of some of its qualities; to alter or vary without radical transformation”. Similarly the word “modification” means “the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration”. Stress is being placed on the meaning “to alter or vary without radical transformation” on behalf of the petitioner; but that is not the only meaning of the words “modify” or “modification”. The word “modify” also means “to make partial changes in” and “modification” means “partial alteration”. If therefore the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in Art. 81 and therefore the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word “modify” has even a wider meaning. In “Words and Phrases” by Roland Burrows, the primary meaning of the word “modify” is given as “to limit” or “restrict” but it also means “to vary” and may even mean to “extend” or “enlarge”. 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 and 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 and 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”. We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution.

The petition therefore fails and is hereby dismissed with costs.

7. Petition dismissed.


(1961) AIR(SC) 1519 :  (1962) 1 SCA 560 : (1962) SCD 299 : (1962) 1 SCJ 670 : (1962) 1 SCR 688

Modification

The word “modification” means “the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration”. Stress is being placed on the meaning “to alter or vary without radical transformation” on behalf of the petitioner; but that is not the only meaning of the words “modify” or “modification”. The word “modify” also means “to make partial changes in” and “modification” means “partial alteration”. If therefore the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in Art. 81 and therefore the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word “modify” has even a wider meaning.

In “Words and Phrases” by Roland Burrows, the primary meaning of the word “modify” is given as “to limit” or “restrict” but it also means “to vary” and may even mean to “extend” or “enlarge”. 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 and 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 and 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”.


Puranlal Lakhanpal Vs. The President of India and Others, AIR 1961 SC 1519 : (1962) 1 SCR 688

Article 370 of the Constitution of India

Jammu and Kashmir

The Constitutional Provisions of Article 370

Article 370 of the Constitution is as follows:– 

(1) Notwithstanding anything in this Constitution,–

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to– (i) those matters in the Union List mid the Concurrent List which, in consultations 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 Dominion 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 Jammu and Kashmir 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 exceptions 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 State referred to in paragraph (i) of Sub-clause (b) shall he 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) 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.

(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 PROVISION WAS TEMPORARY

This article contained temporary provisions which ceased to be effective after the Constituent Assembly convened for the purpose of framing the Constitution of the Jammu and Kashmir State had completed its task by framing the Constitution for that State. Reliance was placed on the historical background in which this Article 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 not resort to them after the Constituent Assembly had completed its work by framing the Constitution of the State. The background of the legislative history to which reference was made, was brought to our notice by learned counsel by drawing our attention to the speech of the Minister Sri N. Gopalaswami Ayyangar when he moved in the Constituent Assembly Clause 306A of the Bill, which now corresponds with Article 370 of the 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 and 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 Jammu and 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.

RELATION WITH ARTICLE 35(c) 

Article 35(c) of the Constitution, as initially introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954 (C. O. 48) had given protection to any law relating to preventive detention in Jammu and 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 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,”

It was said that the five years mentioned in the 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 Article 22 of the Constitution. It, however, appears that for the words “five years” in Article 35(c), the words “ten years” were substituted by the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1959 (C. O. 59), which was passed 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, that these two modifications in 1959 and 1964, substituting “ten years” for “five years” and “fifteen years” for “ten years”, were themselves void on the ground that orders making such modifications could not be validly passed by the President under Article 370(1) of the Constitution in the years 1959 and 1964.

In this back ground, Article 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 and. 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 law. 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 Article 370 were void. It was also urged that the provisions of Clause (2) of Article 370 support this view, because it directs that, if the concurrence of the Government of the State is given under paragraph (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 purpose 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 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.

STATUS OF UNDER THE LAW 

The article370 continued in force and remained effective 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 recommendation of the Constituent Assembly of the State, the President 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 kid 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 agreement 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 Article 368 of the Constitution in its application to the State of Jammu and Kashmir, under which an amendment to the Constitution made in accordance with Article 368 is to have no effect in relation to the State of Jammu and Kashmir unless applied by order of the President under Clause (1) of Article 370. The proviso, thus, clearly requires that the powers of the President under Article 370 must be exercised from time to time in order to bring into effect in Jammu and Kashmir amendments made by Parliament in the Constitution in accordance with Article 368. In view of these provisions, it must be held that Article 370 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 POWER OF PRESIDENT

Under Article 370(1)(d), the power of the President is expressed by laying down that provisions of the Constitution, other than Article (1) and Article 370 which, under Article 370(1)(c), became applicable when the. Constitution came into force, shall apply in relation to the State of Jammu and Kashmir subject to such exceptions and modifications as the President may by order specify. What the President is required to do is to specify the provisions of the Constitution which are to apply to the State of Jammu and Kashmir and, when making such Specification, he is also empowered to specify exceptions and modifications to those provisions. As soon as the President makes such specification, the provisions become applicable to the State with the specified exceptions and modifications: The specification by the President has to be in consultation with the Government of the State if those provisions relate to matters in the Union List and the Concurrent List specified in the Instrument of Accession governing the accession of the State to the Dominion of India as matters with respect to which the Dominion Legislature may make laws for that State. The specification in respect of all other provisions of the Constitution under Sub-clause (d) of Clause (1) of Article 370 has to be with the concurrence of the State Government. Any specification made after such consultation or concurrence has the effect that the provisions of the Constitution specified with the exceptions and modifications become applicable to the State of Jammu and Kashmir. It cannot be held that the nature of the power contained in this provision is such ‘that Section 21 of the General Clauses Act must be held to be totally inapplicable.

In this connection, it may be noted that Article 367 of the Constitution lays down that, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. This provision made by the Constitution itself in Article 367, thus, specifically applied the provisions of the General Clauses Act to the interpretation of all the articles of the Constitution which include Article 370. Section 21 of the General Clauses Act is as follows :

“Where by any Central Act of Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”

This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to any Central Act or Regulation. On the face of it, the submission that Section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies which can only be avoided by holding that the rule laid down in this section is fully applicable to all the provisions of the Constitution. As an example, under Article 77(3), the President, and, under Article 166(3) the Governor of a State are empowered to make rules for the more convenient transaction of the business of the Government of India or the Government of the State, as the case may be, and for the allocation among Ministers of the said business. If, for the interpretation of these provisions, Section 21 of the General Clauses Act is not applied, the result would be that the rules once made by the President or a Governor would become inflexible and the allocation of the business among the Ministers would for ever remain as laid down in the first rules. Clearly, the power of amending these rules from time to time to suit changing situations must be held to exist and that power can only be found in these articles by applying Section 21 of the General Clauses Act. There are other similar rule-making powers, such as the power of making service rules under Article 309 of the Constitution. That power 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 Section 21 of the General Clauses Act cannot be held to be applicable for interpretation of the Constitution must, therefore, be rejected. It appears to us that there is nothing in Article 370 which would exclude the applicability of this section when interpreting the power granted by that article.

HISTORICAL CONNECTION

It was because of the special situation existing in Jammu and Kashmir that the Constituent Assembly framing the Constitution decided that the Constitution should not become applicable to Jammu and Kashmir under Article 394, under which it came into effect in the rest of India, and preferred to confer on the President the power to apply the various provisions of the Constitution with exceptions and modifications. It was envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferring on the President the power of making orders from time to time under Article 370 and this power must, therefore, be held to have been conferred on him by applying the provisions of Section 21 of the General Clauses Act for the interpretation of the Constitution.

CONSTRUCTION OF ARTICLE 370

Article 368 of the Constitution having been applied to Jammu and Kashmir with a proviso added to ft, there now exists a provision relating to amendment of the Constitution as applied to Jammu and Kashmir under this article and, consequently, while such special provision for this purpose exists, we should interpret Article 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. Article 368 has been applied to Jammu and 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 and Kashmir. The proviso, when applying this article, serves the purpose that those amendments made should be made applicable to the State of Jammu and 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 Article 370 of the Constitution. Thus, Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and 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 and Kashmir. Even, in this process, the powers of the President under Article 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 Article 370.

The power of making modifications and exceptions in the orders made under Article 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 Article 35(c) introduced in the Constitution as applied to Jammu and Kashmir on this ground was repelled by this Court in P.L. Lakhanpal Vs. The State of Jammu and Kashmir .

Subsequently, the scope of the powers of making exceptions and modifications was examined in greater details by this Court in Puranlal Lakhanpal Vs. The President of India and Others,  Dealing with the scope of the word “modification” as used in Article 370(1), the Court held:–

“But, in the present case, we have to find out the meaning of the word “modification” used in Article 370(1) in the context of the Constitution. As we have said already, the object behind enacting Article 370(1) was to recognise the special position of the State of Jammu and 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 the 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 and 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 and 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 Jammu and Kashmir. It seems to us that when the Constitution used the word “modification” in Article 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.”

Proceeding 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 Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and 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 and 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 Article 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation”.

The modifications made in Article 35(c) by the Constitution (Application to Jammu and Kashmir) Orders of 1959 and 1964 had the effect of abridging the fundamental right of the citizens of Kashmir under Article 22 and other articles contained in Part III after they had already been applied to the State of Jammu and Kashmir and an order of the President under Article 370 being in the nature of law, it would be void under Article 13 of the Constitution. Article 35(c) as originally introduced in the Constitution as applied to Jammu and Kashmir laid down that no law with respect to preventive detention made by the Legislature of that State could be declared void on the ground of inconsistency with any of the provisions of Part III, with the qualification that such a law to the extent of the inconsistency was to cease to have effect after a period of five years. This means that, under Clause (c) of Article 55, immunity was granted to the preventive laws made by the State Legislature completely, though the life of the inconsistent provisions was limited to a period of five years. The extension of that life from five to ten years and ten to fifteen years cannot, in these circumstances, be held to be an abridgement of any fundamental right, as the fundamental rights were already made inapplicable to the preventive detention law. On the other hand, if the substance of this provision is examined, the proper interpretation would be to hold that, as a result of Article 35(c), the applicability of the provisions of Part III for the purpose of judging the validity of a law relating to preventive detention made by the State Legislature was postponed for a period of five years, during which the law could not be declared void. As already stated Article 370(1)(d), in terms, provides for the application of the provisions of the Constitution other than Articles 1 and 370 in relation to Jammu and Kashmir with such exceptions and modifications as President may by order specify. It was not disputed that the President’s Order of 1954, by which immunity for a period of five years was given to the State’s preventive detention law from challenge on the ground of its being inconsistent with Part III of the Constitution was validly made under and in conformity with Clause (d) of Article 370(1).

We may say that the power to modify in Clause (d) also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in Section 21 of the General Clauses Act. If the order of 1954 is not invalid on the ground of infringement or abridgement of fundamental rights under Part III, it is difficult to appreciate how extension of period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or abridgement of any of the provisions of Part III. The object of the subsequent Orders of 1959 and 1964 was to extend the period of protection to the preventive detention law and not to infringe or abridge the fundamental rights, though the result of the extension is that a detenu cannot, during the period of protection, challenge the law on the ground of its being inconsistent with Article 22. Such extension is justified prima facie by the exceptional state of affairs which continue to exist as before.

 The provision made in Article 35(c) has the effect that the validity of the Act cannot be challenged on the ground that any of the provisions of the Act are inconsistent with Article 22 of the Constitution.


P.L. Lakhanpal Vs. The State of Jammu and Kashmir, AIR 1956 SC 197 : (1956) CriLJ 421 : (1955) 2 SCR 1101
Puranlal Lakhanpal Vs. The President of India and Others, AIR 1961 SC 1519 : (1962) 1 SCR 688