SAMPAT PRAKASH versus STATE OF JAMMU & KASHMIR & ANR.

Citation: [1969] 2 S.C.R. 365 · Decided: 10-10-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Directions issued

Cited by 4 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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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 modifi-
cation 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 appli-
oable 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 Consti-
tution. 
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 Gov-
ernment of the State before the Constituent Assembly was convened 
and makes no mention at all of the completion of the work of the Consti-
tuent 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. 
A 
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c 
Article 367 lays down that, unless the context otherwise requires, 
D 
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the General Clauses A

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