LexMOHD. MAQBOOL DAMNOO versus STATE OF JAMMU AND KASHMIR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1014
MC)HD. MAQBOOL DAMNOO
v ..
.STATE OF JAMi\IU AND KASHMIR
January, 5, 197'<.--
[S. M. SIKRI, C.J., J. M. SHELAT,
1. D. DUA, H. R. KHANNA
A
AND G. K. MITTER, JJ.]
B
Com•1itu1ion of Jammu and KWihmir (olh Amendment) Act, 1965-
l'ruvullng }or appointnU.tnt of <iovernor in pJa,:e uf :>adar-i-J:{iyc.sat_J
Validity .of amendment in view o} /;,xpJa11u11on to Amel<' 3700) of
t;onslltllltWn oj lntlia still re)ernng to Sadar-i~Kiyasat as Head of State-
I-
'
Assent of Goyernor of Ja1nnzu anct Kashuiir 10 Preventive
JJetention
.t
\Amendment) Ac/, 1%7 wlle1/1er resul<s in rulid law-Amendment of
C
Art. 367 Uf Cu11stitutio11 Of India tu tile enect I/Jal reference to Sadar-i-
'Riyasat shall be read as re/eren1.:e to Goveruur whc:ther amounts to a1nend-
mem of A:rl. 370\1) by backdoor-l'roviso to sectio11 8(1) of De1en1ion
Act WIJef/ier suiJers jrv11i
exce~·sive delegalivn-Proviso whether bad be-
cause it cunftcts with section 103 of Constitution of Jammu and Kaslunir-
Whether detention order violates .Art. 21 and 22 of Com1it11tio11-Whether
detention bad b_ecause detaining autliority had noi applied its mind-
Whether order of detention served and executed in accordanc:e with law.
D
Under the Explanation to Article 370(1) as originally enac,'ted the
Gowrnment of the State of Jammu and Kashmir meant the person for
the time being reco&nised by the President of 1ndia as Maharaja of Jammu
and Kashmir acting on the advice of his Council of Ministers. In 1952
the Constituent Assembly oi the State resolved that the Maharaja ohall
be replaced by an elected head of the State designated as the Sadar-i-
Riyasat. Conse'luential ahangcs were made in Article 370(i) of
the
Constitution of India and in the Explanation to the Arlicle the Government
of the State of Jammu and Kashmir was defined to mean the person for
the time being recognised as the Sadar-i-Riyasat o1 Jammu and Kashmir
acting on the advice of the Council of Ministers. By the Constitution.
of Jammu and Kashmir (6th Amendment Act) 1965 which receiyed the
assent of the Sadar-i-Riyasat the Constitution of Jammu and Kashmir
provided for the appointment of a Governor in place of Sadar-i-Riyasat.
No consequential change was made in Art. 370(1) of the Constitution of
India, but Article 367 was amended to the effect that references to the
Sadar-i-Riyasat of Jammu and Kashmir shall be construed as reference
to the Governor of J ammu and Kashmir and reference to the Government
of the said St'lte shall be constrncd as including references to the Gover-
nor of J ammu and Kashn1ir acting on the ad...-ice of his Council
of
Minist-ers.
l~he Jammu and Kashmir Preventive Detention (Amendment)
Act, 1967 (J & K Act 8 of 1967) alter being passed bv the Legislative
Assembly _received the assent of the Governor of Jammu anJ Kashmir.
The petitioner was detained under the provisions of this Act by the order
of the District Magistrate .dated June 24. 1970. In a writ petition under
article 32 of the Constitution the petitim"r contended (i) that the hmmu
and Kashmir Preventive Detention (Amendment) Act. 1967 was invalid
as it was not assented to by thr.! Sadar-i-Riyasat \Vho alone was mentioned
as Head of the State in the Explanation to Article 370( I); (ii) that the
proviso inserted by "'ction 4( 2) in sub-section (I) of Section 8 of the
Detention Act was bad because it suffcrred from excessi\"e delegation;
(iii) that the<e had been violation of Articles 21 and 22 of the Constitu-
tion: (iv) that '3t any rate. the proviso was bad because it conflicted with
Section !03 of the Constitution of Jammu and Kashmir; (v) that the
E
F
G
H
/" '
A
B
c
D
E
t
G
H
M. M. DAMNOO V. J. & K. STATE
1015
detention order was bad because the detaining authority had not applied
its mind; and (vi) that the order of detention was bad because it was
not served or executed in accordance with law.
HELD: (i) (a) The essential feature o'f Article 370 sub-clause (1) (b)
and ( d) is the peo,ssity of concurrence of the State Government or t~e
consultation of the State Government. What the State Government rs
at a particular time bas to be determined in the context of the Constitu-
tion of Jammu and Kashmir.. The Explanation did no more than recog-
nise the constitutional provision as it existed on that d".lte and the
Ex-
planation as substituted from November 17, 1952 also did not more than
recognise the constitutional provision in the State. Therefore, there ISExcerpt shown. Read the full judgment & AI analysis in Lexace.