- (1.) This application for a writ of 'hebeas corpus is directed against the State of Jammu and Kashmir which has by its order dated 4-10-1955, directed the detention of the petitioner under S. 3, Jammu and Kashmir Preventive Detention Act, (Jammu and Kashmir Act 4 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 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 Sadari-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 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 the 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 reporter 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 Stale 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 to 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 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 :- JUDGEMENT_197_AIR(SC)_1956_1.html The order actually served on the petitioner is an annexure to the cabinet order (Annecure 'E' at page 21 of the paper-book) which is in these terms : "GOVERNMENT OF JAMMU AND KASHIMIR". Annexure to Cabinet Order No. 1644-C of 1955, dated 4-10-1955. 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. 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 Art. 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 cl. (5) of Art. 22 of the Constitution as extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954".
(3.) 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". 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.;