- (1.) :- "Whereas, I, Syed Mohammad shafli Andrabi. LAS, District Magistrate Poonch, am satisfied that with a view, to preventing Abdul Gani s/o Asdha Caste Rather Kashmiri Muslim r/o Chohana P/S Surankote District, Poonch, from acting in a manner prejudicial to the security of the State, it is necessary so to do. Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act. 1964, I Syed Mohd. Shaffi Andrabi, IAS, District Magistrate Poonch, hereby direct that the said Abdul Gani on be detained in Central Jail Jammu subject to such conditions as to maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenu General Order of 1968. Issued this day the 9th May, 1970 under my hand and seal. Sd/- S. M. S. Andrabi, IAS District Magistrate, Poonch. " The order was passed on 9th May, 1970, and on the same day, the District Magistrate issued a direction under the proviso to section 8 of the Act which reads as follows: "Whereas Abdul Gani s/o Asdha Caste Rather Kashmiri Muslim r/o Chohana p/s Surankote Dist. Poonch, has been detained in pursuance of order No. 38/PDA/70 dated 9th May, 1970 made by me under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 with a view to preventing him from acting in a manner prejudicial to the security of the State and; Whereas, I consider it against the public interest to disclose the ground of detention to the said Abdul Gani s/o Asdha Caste Rather Kashmiri Muslim r/o Chohana p/s Surankote, District Poonch. Now, therefore, in pursuance of Section 8 read with Section 13-A of the said Act, I hereby direct that the said Abdul Gani be informed it is against the security of the State to disclose to him the grounds on which his detention order was made. Issued this day the 9th of May, 1970 under my hand and seal. Sd/- S. M. S. Andrabi, IAS Distt. Magistrate Poonch." The petitioner was actually detained on the 22nd May, 1970, in pursuance of the detention order and, on the same day he was informed that it is against public interest to disclose to him the grounds on which the detention order was made in pursuance of the direction made by the District Magistrate mentioned above. On this information being conveyed to him, his signatures were taken in token thereof on the back of the paper on which this direction had been issued by the District Magistrate. His detention was subsequently confirmed by the State Government, after the grounds on which the order had been made and the other particulars having bearing on the matter had been examined by the Chief Miinister. On these facts, learned counsel appearing for the petitioner has challenged the validity of the detention on seven different grounds.
(2.) The first ground is that. when the Constitution of India was applied to the State of Jammu and Kashmir by the order of the President under Article 370 of the Constitution, Article 35 was modified in its application to the State of Jammu and Kashmir by adding clause (c) which reads as follows:- "35. (c) 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 fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof." It is by virtue of this Clause (c) of Article 35 as contained in the Constitution applied to the State of Jammu and Kashmir that the provisions of the proviso to Section 8 and Section 13-A of the Act cannot be challenged on the ground of contravening the provisions of Article 22 of the Constitution. This point was considered by a Bench of this Court in Sampat Prakash v. State of Jammu and Kashmir, 1969-2 SCR 365 - (AIR 1969 SC l153) where the validity of the proviso to Section 8 and of Section 13-A of the Act was upheld. Learned counsel has urged that, in that case, the Court left the question open whether Article 35 (c) of the Constitution had been validly or invalidly introduced in the Constitution in its application to Jammu and Kashmir. His argument is that this article was introduced by an order made by the President in exercise of his powers under Article 370 and, by this provision, the fundamental right of a detenu to seek the remedy against the detention in the Supreme Court of India had been abridged, so that the application of this provision was in contravention of Article 32 (4) of the Constitution and consequently, void.
(3.) This submission made by learned counsel, on the face of it, has no substance at all. The introduction of the provision contained in Article 35 (c), when applying the Constitution to the State of Jammu and Kashmir, did not in any way affect the right of a citizen of Jammu and Kashmir to move the Supreme Court of India for an appropriate writ under Article 32. The effect of that amendment only was that, when approaching the Supreme Court, the detain could not challenge the validity of the Act on the ground that any provision of it contravened the provision of Article 22. This modification in the Constitution had, therefore, no bearing at all on Article 32 (4). Further, under Article 370, the President is given the full discretion to apply the Constitution with such exceptions and modifications as he may, by order, specify. It was at the initial stage, when applying the Constitution to the State of Jammu and Kashmir, that this modification was made in Article 35. This was, therefore, not a case where any provision of the Constitution as already applied to Jammu and Kashmir was being modified in which case only a question could arise whether that modification was permissible. The modification at the initial stage of applying the Constitution itself cannot be challenged on the ground that it abridges any of the fundamental rights. At the time of applying the Constitutions, no such fundamental rights existed in the State of Jammu and Kashmir. They came into existence only by virtue of the Order of the President applying the Constitution and at that stage they came into force in the modified form in which they were applied. This point raised by learned counsel, therefore, has no force at all.;