PETITIONER:
P. L. LAKHANPAL
Vs.
RESPONDENT:
THE STATE OF JAMMU AND KASHMIR.
DATE OF JUDGMENT:
20/12/1955
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
IMAM, SYED JAFFER
CITATION:
1956 AIR 197 1955 SCR (2)1101
ACT:
Constitution of India, Arts. 13, 21, 22 and 35(c)-Jammu and
Kashmir Preventive Detention Act, 2011 (Act VI of 2011), s.
3(1) (a)(i) and s. 8(1) Proviso-Constitution (Application to
Jammu and Kashmir) Order, 1954-Detention order under the
provisions of ss. 3 (1)(a)(i) and 8(1) Proviso of the Act-
Whether violates fundamental rights guaranteed under Arts.
21 and 22 of the Constitution-Nonsupply of grounds of
detention to Detenu- Whether violates his fundamental right-
Addition of clause (c) to Art. 35 of the Constitution Effect
of.
HEADNOTE:
The petitioner was detained in Kothibagh sub-jail in
Srinagar by the order of Jammu and Kashmir Government under
the provisions of s. 3(1)(a)(i) of the Jammu and Kashmir
Preventive Detention Act, 2011,
1102
The petitioner challenged the order of detention on the
grounds, inter alia, (i) that it encroached on his
fundamental right to life and personal liberty guaranteed to
him under Art. 21 of the Constitution as extended to the
State of Jammu and Kashmir, (ii) that it violated his
fundamental right guaranteed to him under clause (5) to Art.
22 of the Constitution as extended to Jammu and Kashmir
State inasmuch as the petitioner was not supplied with the
grounds on which the order of detention was based. It was
contended that s. 8(1) Proviso, of Jammu and Kashmir
Preventive Detention Act, 2011, under which the grounds of
detention were not supplied to him, was unconstitutional as
being inconsistent with Arts. 21 and 22 of the Constitution
and thus void to the extent of that inconsistency in view of
the provisions of Art. 13 of the Constitution.
Held (overruling the contention) that s. 8 (1) Proviso is
not unconstitutional in view of the provisions of
Constitution (Application to Jammu and Kashmir) Order, 1954
which supersedes the Constitution (Jammu and Kashmir) Order,
1950, and of clause (c) which has been added to Art. 35 of
the Constitution.
The effect of the modification of Art. 35 by the addition of
clause (c) thereto is that such of the provisions of the Act
as are inconsistent with Part III of the Constitution shall
be valid until the expiration of five years from the
commencement of the Order.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 396 of 1955.
Under Article 32 of the Constitution for a writ in the
nature of Habeas Corpus.
R. Patnaik, for the petitioner.
M. C. Setalvad, Attorney-General of India, C. K.
Daphtary, Solicitor-General of India, Raja Jaswant Singh,
Advocate-General, Jammu and Kashmir (-P. A. Mehta and R. H.
Dhebar, with them) for the respondent.
M. C. Setalvad, Attorney-General of India (P. A. Mehta
and R. H. Dhebar, with him) for the Intervener.
1955. December 20. The Judgment of the Court was delivered
by
SINHA J.-This application for a writ of habeas corpus is
directed against the State of Jammu and Kashmir which has by
its order dated the 4th October, 1955, directed the
detention of the petitioner under section 3 of the Jammu and
Kashmir Preven-
1103
tive Detention Act, (Jammu and Kashmir Act IV of 2011),
hereinafter to be referred to as “the Act”. Originally the
sole respondent impleaded was the State of Jammu and
Kashmir. After a rule nisi was issued to the respondent,
the Union of India intervened because the petitioner had
challenged the validity of the Constitution (Application to
Jammu and Kashmir) Order, 1954.
The petitioner, P. L. Lakhanpal, aged approximately 28
years, describing himself as the Chairman, End Kashmir
Dispute Committee, has moved this Court against the order of
the State detaining him in Kothi Bagh sub-jail in Srinagar.
The application is based on the following allegations. The
petitioner is normally a resident of 9821, Nawabganj, Delhi
6. He went to Kashmir on a permit on the 24th September this
year “on a study-cum-pleasure trip”. He has been evincing
keen interest in Kashmir politics since the year 1946, when
as General Secretary of the Congress Socialist Party,
Lahore, be was closely associated with the “Quit Kashmir
movement”. Last year he wrote a book entitled I ‘Communist
Conspiracy in Kashmir”, copies of which had been seized by
the Delhi Police but were subsequently released. The
petitioner in the book aforesaid, as also elsewhere in the
press and on the platform, claims to have been making
“trenchant criticism of the Kashmir cabinet headed by Bakshi
Ghulam Mohammed and also of the Government of India’s policy
in regard to Kashmir”. He claims to be known as the
supporter of Sheikh Mohd. Abdullah, the former Prime
Minister of Kashmir, and to have expressed the opinion that
he “has been the victim of a heinous conspiracy motivated by
lust for power between the communists and the rightists on
the one hand and Bakshi Ghulam Mohammed, the present Kashmir
Prime Minister, on the other”. He also claims to have been
advocating the cause of the ex-Prime Minister aforesaid of
Kashmir whose detention has been severely criticized by him.
He has “also publicly exposed and denounced the brutal
excesses committed by the police and authorities under the
Bakshi Government throughout
1104
the State”. He has characterized the State Constituent
Assembly as having forfeited the confidence of the people.
He claims to have “declared that the Bakshi cabinet, which
in his view is dominated by the communists, is the
corruptest, the most tyrannical and the most hated
Government that the State has ever had”. Similar views were
expressed by him in telegrams said to have been sent to the
Sadar-i-Riyasat of Jammu and Kashmir, to the President of
India and to the Prime Minister of India. He claims to have
organized a “persistent campaign to secure support for his
views on Kashmir among the public and leaders of political
thought”. The aforesaid activities of the petitioner, he
further claims, have “provoked a bitter controversy between
him and the Indian Prime Minister”. In this connection he
makes reference to certain statements said to have been made
by the Prime Minister of India which it is not necessary to
detail here except the following:-
“During the last few months, however, I have become aware of
his (the petitioner’s) activities and have inquired into
them. These inquiries led me to the conclusion that these
activities are of a most objectionable character which can
only help the enemies of our country”.
The petitioner also claims to be the General Secretary of
the World Democratic Peace Congress. In this connection he
makes certain other allegations against the Prime Minister
of India which are not relevant to the case. He also makes
a grievance that it was reported in a daily newspaper of
Srinagar called Khidmat that the present Prime Minister of
Jammu and Kashmir had described him as “a traitor and an
enemy of the nation”. He then describes his activities
during three days in Srinagar meeting people from various
walks of life, including editors of the newspapers and
members of the State Assembly. On the 29th September, he
says, be left Srinagar for Anantnag in the company of the
alleged leader of the opposition in the Assembly and
President of the Jammu and Kashmir Plebiscite Front, named
Mirza Afzal Mohd. Beg, who, it may be added, has also
1105
been in detention under the orders of the Jammu and Kashmir
Government, as stated by the Advocate General of that State.
At Anantnag he claims to have spent two days as the guest of
Mr. Beg meeting people of the town and neighbouring areas
“listening to their harrowing tales of woe”. On the 30th
September be ”addressed an informal meeting of the
Plebiscite Front Workers at Mr. Beg’s residence”. He came
back to Srinagar on the 1st October and left for Sopore on
the 2nd October. There he addressed an informal gathering
of a few hundred workers on the same lines as he had done at
Anantnag. On the 3rd October he personally banded to the
P.A. to the Chief Secretary of Jammu and Kashmir an
application seeking permission for an interview with Sheikh
Abdullah in the Kud jail where he has been in detention.
During his stay in Srinagar, he states, he made unsuccessful
attempts to contact the State Prime Minister for a meeting.
In the afternoon of the 4th October be held a press
conference at which he “made a written statement”
complaining of “such barbaric brutalities, such-insecurity
of life, property and honour and such callousness on the
part of the administration as are evidenced in your valley
only go to show that the Bakshi Government is just another
name for legalized lawless, disorder, corruption and
nepotism”. In the early hours of the morning of the 5th
October the Superintendent of Police, Srinagar, read out to
him the order of detention passed by the Cabinet and took
him into custody and detained him in the sub-jail Kothi
Bagh. The order of detention (Annexure “D” at page 20 of
the paperbook) is in these terms:-
“GOVERNMENT OF JAMMU AND KASHMIR CHIEF SECRETARIAT (GENERAL
DEPARTMENT)
Subject:-Detention of P. L. Lakhanpal, Chairman, End Kashmir
Dispute Committee at present residing in Kashmir Guest
House, Lal Chowk, Amira Kadal, Srinagar, under section
3(1)(a)(i) of the Jammu and Kashmir Preventive Detention
Act, 2011.
1106
Read:-Memorandum No. IS-164-D/55 dated 4-10-1955, from the
Minister Incharge, Law and
Order.
Order No. 1644-C of 1955
Dated 4th October, 1955.
The Government having considered the facts stated in the
memo of the Minister Incharge, Law and Order are satisfied
that it is necessary to detain P. L. Lakhanpal, Chairman,
End Kashmir Dispute Committee at present residing in Kashmir
Guest House, Lal Chowk, Amira Kadal, Srinagar, with a view
to preventing him from acting in any manner prejudicial to
the security of the State. Accordingly the Government
hereby accord sanction to the Order annexed hereto and
authorize the Chief Secretary to Government to issue the
same over his signature.
By Order of the Cabinet, , Sd. G.M. Bakshi
Prime Minister”.
The order actually ‘served on the petitioner is an annexure
to the cabinet order (Annexure ‘E’ at page 21 of the paper-
book) which is in these terms:
“GOVERNMENT OF JAMMU AND KASHMIR. Annexure to Cabinet Order
No. 1644-C of 1955,
dated 4-10-1955.
O r d e r.
Whereas the Government are satisfied with respect to P. L.
Lakhanpal, Chairman, End Kashmir Dispute Committee, at
present residing in Kashmir Guest House, Lal Chowk,
Amirakadal, Srinagar that with a view to preventing him from
acting in a manner prejudicial to the security of the State
it is necessary to make an order directing that the said P.
L.Lakhanpal be detained:
Now, therefore in exercise of the powers conferred by sub-
section (1) of section 3 of the Jammu and Kashmir Preventive
Detention Act, 2011, the Government are pleased to order
that the said P. L.
1107
Lakhanpal be detained in sub-jail, Kothibagh, Srinagar;
Notice of this Order shall be given to the said
P. L. Lakhanpal by reading over the same to him.
By order of Government.
Sd. Ghulam Ahmad
Chief Secretary to Government”.
It is this order which the petitioner challenges as
“malicious, mala fide, vague and capricious, illegally
depriving the petitioner of his fundamental right to life
and personal liberty guaranteed under article 21 of the
Constitution as extended to the State of Jammu and Kashmir”.
The order of the petitioner’s detention is also challenged
as unwarranted and illegal as the order sent to the jail
authorities does not bear the signature of the Prime
Minister of Jammu and Kashmir and also because the
petitioner has not been supplied, in spite of demands made
by him, with the grounds on which the order of his detention
is based, “in clear violation of his fundamental rights
guaranteed under clause (5) of article 22 of the Con-
stitution as extended to the State of Jammu and Kashmir by
the Constitution (Application to Jammu and Kashmir) Order,
1954″.
The State has filed an answer to the petitioner’s affidavit
in support of his petition. The affidavit filed on behalf
of the State is sworn to by Shri Pirzada Ghulam Ahmad, Chief
Secretary to the Government. In this affidavit he denies
that the petitioner had come to Kashmir on a study-cum-
pleasure trip as alleged by him. He further states that the
petitioner during his stay in Kashmir “actually engaged him-
self in activities prejudicial to the security of the State”
and that the Government was “satisfied that it is not in the
public interest to communicate to the petitioner the grounds
of the said detention order”. The affidavit further states
that the petitioner’s “detention was ordered by the Cabinet
not for any collateral purpose but because the Government
was satisfied that the activities of the petitioner were
calculated to prejudice the security of the State”
140
1108
The allegations of improper motive and mala fides made by
the petitioner are denied as wholly “unfounded and
baseless”. It is also denied that the petitioner’s
detention was illegal or that the provisions of the Act
under which the order had been passed were unconstitutional.
The affidavit ends by stating that it is apprehended that if
the petitioner were to be released, he is “likely to indulge
further in activities which would greatly jeopardize the
security of the State” and that the detention order had been
made solely with a view to preventing the petitioner from
doing any further mischief.
The Act impugned in this case provides that it shall remain
in force for a period of five years from the date of its
commencement. The relevant portion of section 3 is in these
terms:-
(1) The Government may-
(a) if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial
to-
(i) the security of the State; or…….. it is necessary so
to do, make an order directing that such person be
detained”.
The main attack against the orders served upon the
petitioner is against the following paragraph in the order
dated the 7th October 1955:-
“Now, therefore, the Government, in exercise of the powers
conferred by the proviso to sub-section (1) of section 8 of
the said Act, hereby declare that it would be against the
public interest to communicate to the said P. L. Lakhanpal
the grounds on which the detention order has been made”.
That part of the order of detention passed against the
petitioner is in consonance with section 8 of the Act which
is in these terms:-
“(1) When a person is detained in pursuance of a detention
order, the authority making the order shall, as soon as may
be, communicate to him the grounds on which the order has
been made, and shall afford him the earliest opportunity of
making a representation against the order to the Government;
Provided that nothing contained in this sub-sec-
1109
tion shall apply to the case of any person detained with a
view to preventing him from acting in any manner prejudicial
to the security of the State if the Government by order
issued in this behalf declares that it would be against the
public interest to communicate to him the grounds on which
the detention order has been made.
(2)Nothing in sub-section (1) shall require the authority to
disclose facts which it considers to be against the public
interest to disclose”.
The proviso to the section just quoted makes provision for
such cases as come within the purview of section 3(1) (a)
(i) of the Act; that is to say, a person in the position of
the petitioner who has been detained for preventing him from
acting in any manner prejudicial to the security of the
State of Jammu and Kashmir is outside the general rule laid
down in section 8(1) if the Government declares as it has
done in this case, that it would be against the public inte-
rest to communicate to him the grounds on which the
detention order has been made. It is not contended that the
orders served upon the petitioner are not justified by the
terms of the section quoted above. But it has been argued
by the learned counsel for the petitioner that the terms of
the section are unconstitutional inasmuch as they are
inconsistent with the provisions of articles 21 and 22 of
the Constitution and are therefore to the extent of such in
consistency void in view of the provisions of article 13 of
the Constitution. This argument presupposes that the
petitioner can invoke the aid of those articles. It has not
been contended on behalf of the petitioner that apart from
the provisions of Part III of the Constitution the
petitioner has any fundamental rights guaranteed to him,
Therefore, if articles 21 and 22 are out of the way, as will
presently appear, the argument is without any force.
The Constitution does not apply to the State of Jammu and
Kashmir in its entirety. On the 14th May, 1954, the
President of India in exercise of the powers conferred by
clause (1) of article 370 of the Constitution made and
promulgated with the concur-
1110
rence of the Government of the State of Jammu and Kashmir,
the Constitution (Application to Jammu and Kashmir) Order,
1954 (which shall be described hereinafter as “The Order”).
It came into force on the same day and superseded the
Constitution (Application to Jammu and Kashmir) Order,
1950.. By its terms the Order provides that in addition to
articles I and 370, the specified provisions of the Consti-
tution shall apply to the State of Jammu and Kashmir subject
to the exceptions and modifications indicated therein. In
so far as those exceptions and modifications are relevant to
our present purpose, it is provided that in clauses (4) and
(7) of article 22 “The Legislature of the State of Jammu and
Kashmir” shall be substituted for “Parliament”, so that the
Legislature of the State of Jammu and Kashmir is competent
to legislate in respect of preventive detention. In article
35, clause (c) has been added, which is in these terms:-
“No law with respect to preventive detention made by the
Legislature of the State of Jammu and Kashmir, whether
before or after the commencement of the Constitution
(Application to Jammu and Kashmir) Order, 1954, shall be
void on the ground that it is inconsistent with any of the
provisions of this Part, but any such law shall, to the
extent of such inconsistency, cease to have effect on the
expiration of five years from the commencement of the said
Order, except as respects things done or omitted to be done
before the expiration thereof”.
The effect of this modification in article 35 of the
Constitution is that such of the provisions of the Act as
are inconsistent with Part III of the Constitution shall be
valid until the expiration of five years from the
commencement of the Order. This is an exception which has
been engrafted on the Constitution in respect of fundamental
rights relating to personal liberty for the limited period
of five years. The Act itself has a limited life of five
years. Thus the exception aforesaid is co-extensive with
the life of the Act itself. Hence, so long as the Act
continues in force in its present form, the provisions of
articles 21 and 22 in
1111
so far as they are inconsistent with the Act are out of the
way of the respondent and the petitioner cannot take
advantage of those provisions. Therefore, there is no
question of the provisions of section 8 of the Act being
unconstitutional by reason of their being inconsistent with
articles 21 and 22 of the Constitution; and consequently
article 13 is of no assistance to the petitioner.
We have assumed that article 32 of the Constitution under
which this application has been made to this Court is
available to the petitioner, though the Attorney-General who
appeared to show cause on behalf of the respondents,’ went
to the length of suggesting that even the benefit of article
32 of the Constitution is not available to the petitioner.
As he did not raise this point by way of a preliminary
objection and as we did not hear the petitioner’s counsel on
this aspect of the case, because in our view clause (c)
added to article 35 of the Constitution by the President’s
Order was enough to deprive the petitioner of the benefit of
articles 21 and 22 at least, we have not thought it
necessary to examine and pronounce upon that extreme
proposition.
Realizing the difficulty in the petitioner’s way in view of
the provisions of clause (c) added as a afore-said to
article 35 of the Constitution, the learned counsel for the
petitioner faintly suggested that clause (c) of article 35
added by the President’s Order was itself bad inasmuch as,
so the argument further ran, that provision was in excess of
the powers conferred on the President by article 370 of the
Constitution. No attempt was made on behalf of the
petitioner to show how the Order promulgated by the
President was in excess of his powers under article 370 of
the Constitution. It was not contended that that article
did not authorise the President to promulgate the Order.
What was suggested was that in promulgating the Order which
the President was authorized to make under article 370 he
had exceeded his powers. Beyond saying so, no tangible
reason was adduced in support of this extreme position. It
is manifest that article 370(1)(c) and (d) authorizes the
President by Order
1112
to specify the exceptions and modifications to the
provisions of the Constitution (other than articles I and
370) subject to which the Constitution shall apply to the
State of Jammu and Kashmir. Clause (c) as indicated above
has been added to article 35 of the Constitution only so far
as the State of Jammu and Kashmir is concerned. Section 8
of the Act is not in excess of or inconsistent with the
provisions of clause (c) so added to article 35 of the
Constitution. That being so the orders as served upon the
petitioner are not inconsistent with or in excess of such
provisions of Part III of the Constitution as apply to the
State of Jammu and Kashmir. It must therefore be held that
the petitioner was not entitled to know the grounds upon
which he had been detained beyond what is disclosed in the
order itself
It was argued that the order of detention served on the
petitioner or the order sent to the officer in charge of the
jail where he was detained, did not bear the signature of
the Prime Minister of Jammu and Kashmir. But no provisions
of any law have been brought to our notice which require
that the Prime Minister himself should have signed the copy
of the order to be served on the detenu or the copy of the
order which was forwarded to the officer in charge of the
jail. Even the long petition submitted by the petitioner
which is not characterized by sobriety of language or strict
accuracy does not contain any the least suggestion to that
effect; and no material in sup-port of it has been shown to
us. We cannot, therefore, take notice of such an
irresponsible and unfounded suggestion. It must therefore
be held that all the grounds of law urged or suggested in
support of the petition are without any substance. We may
add that we did not call upon the Attorney-General who
appeard on behalf of the respondents to show cause with
reference to the allegations of the order impugned being
malicious or wanting in bona fides because no foundation had
been laid in the petition on the facts stated in the
affidavit which could lead us even remotely to make such an
inference,
1113
For the reasons aforesaid it must be held that there is no
merit in the application and the rule is accordingly
discharged, and the application is dismissed.