- (1.) This petition under Article 32 of the Constitution of India (hereinafter referred to as "the Constitution") has been presented by Sampat Prakash who was the General Secretary of the All Jammu and Kashmir Low-Paid Government Servants Federation. On October 25, 1967, Government employees and teachers of the Jammu Province held a mass meeting making a demand that dearness allowance at Central rates should be paid to them. They further resolved that, if the Government did not accept this demand, the employees and the teachers would go on 'Dharna' on 5th November, 1967. The Revenue Minister of the Jammu and Kashmir State promised dearness allowance at half the rates applicable to Central Government servants. No dharna was started on 5th November, 1967, but, on 17th November, 1967, a notice was given on behalf of the employees to the Government that there would be a hunger strike on 18th November, 1967. On that day, the employees went on a hunger strike for one day outside the residence of the Chief Minister. Then, there was a mass meeting on 27th November, 1967, in which it was announced that, if their demands were not met, the employees would go on a pen-down strike on 2nd December, 1967. The Government failed to comply with this demand. Then, between 4th and 10th December, 1967, the employees went on a strike - first a pen-down strike and, later, a general strike. Between this period, on 5th December, 1967, there was another mass meeting which was addressed by the petitioner. On 11th December, 1967, even the workers of the various industries in the State went on a general strike in sympathy with the Government employees. On that day, the petitioner was dismissed from government service and on 12th December, 1967, he addressed another mass meeting. In view of these activities of the petitioner and the continuance of such a situation the District Magistrate of Jammu, on 16th March, 1968, made an order of detention of the petitioner under Sec. 3 of the Jammu and Kashmir Preventive Detention Act No. 13 of 1964 (hereinafter referred to as "the Act") and, on 18th March, 1968, the petitioner was actually placed under detention. The grounds of detention were served on the petitioner on the 26th March, 1968 and the State Government granted approval to the order of detention on 8th April, 1968. The detention of the petitioner was continued without making a reference to the Advisory Board, as the State Government purported to act under Section 13A of the Act. The present petition was filed by the petitioner on 3rd May, 1968.
(2.) During the preliminary hearing of this petition, Mr. Ramamurthy, representing the petitioner, raised a ground that Section 13A of the Act was ultra vires the Constitution as contravening the provisions of Article 22 of the Constitution. That question was referred by the Constitution Bench of the Court to a larger Bench and came before the Full Court. On this occasion, the Court held that, in view of Clause (c) of Article 35 of the Constitution introduced in the Constitution in its application to the State of Jammu and Kashmir, the point that had been raised stood answered by the addition of this clause and, unless the clause itself was challenged, the point raised on behalf of the detenu did not arise. In this view, that reference was dissolved and the case has been heard by the Constitution Bench.
(3.) On the return of the reference, the main point which has been argued on behalf of the petitioner is based on the fact that Article 35 (c) of the Constitution, as initially introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954 (C. O. 48) had given protection to any law relating to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution for a limited period of five years only. This clause, as introduced in 1954, read as follows: "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." It was urged that the five years mentioned in the clause expired in 1959, and consequently, the Act, which was passed in 1964, did not get immunity from being declared void on the ground of inconsistency with Article 22 of the Constitution. It, however, appears that for the words "five years" in Article 35 (c), the words "ten years" were substituted by the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1959 (C. O. 59), which was passed before the expiry of those five years and, subsequently, for the words "ten years" so introduced, the words "fifteen years" were substituted by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C. O. 69). This modification was also made before the expiry of the period of ten years from the date on which the Constitution (Application to Jammu and Kashmir) Order, 1954 was passed. On these facts, the point raised on behalf of the detenu was that these two modifications in 1959 and 1964, substituting "ten years" for "five years" and "fifteen years" for "ten years", were themselves void on the ground that orders making such modifications could not be validly passed by the President under Article 370 (1) of the Constitution in the years 1959 and 1964.;