WANCHOO, J. - (1.) THIS appeal, on a certificate granted under Art. 132 of the Constitution of India (hereinafter called the Constitution) by the High Court of Jammu and Kashmir, raises the constitutionality of the Enemy Agents Ordinance, No. VIII of S. 2005 (hereinafter called the Ordinance), promulgated by His Highness under S. 5 of the Jammu and Kashmir Constitution Act, S. 1996, (hereinafter called the Constitution Act). The appellants also made an application under Art. 132(3) of the Constitution to this Court for permission to urge other grounds taken by them in the High Court besides those relating to the interpretation of the Constitution. We intimated at the outset of the arguments that this application was being allowed and learned counsel for the appellants was permitted to make his submissions on all points raised in the High Court.
(2.) THE appellants are being prosecuted before a Special Court constituted under the Ordinance for offences under S. 3 of the Ordinance, Ss. 3, 4 and 5 of the Explosive Substances Act, No. VI of 1908, S. 120-B of the Indian Penal Code, 1860 and S. 29 of the Public Security Act read with R.28 and R.32 of the Rules thereunder. THE incidents out of which this prosecution arose took place on 27/6/1957 and 28/6/1957 The circumstances in which the Ordinance came to be passed were these: Outside raiders began attacking Kashmir on 22/10/1947. The State acceded to India On 26/10/1947. It appears that the enemy Agents Ordinance, No. XIX of S. 2004 was enacted soon after in January 1948. There was "cease-fire" on 1/01/1949, and the raids came to an end. This was followed by the present Ordinance which became law on 24/01/1949. The preamble to the Ordinance says that an emergency had arisen as a result of wanton attacks by outside raiders and enemies of the State which made it necessary to provide for the trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy and as it was necessary to amend Ordinance XIX of S. 2004, therefore, the Ordinance was passed consolidating the law and repealing the earlier Ordinance. The main contentions of the appellants in the High Court were that the Ordinance was unconstitutional and void by reason of the violation of Art. 14 of the Constitution and that His Highness had no legislative competence to enact it and that in any case it came to an end when S. 5 of the Constitution Act was repealed in 1951.
(3.) THE High Court was of the view that there was a reasonable classification and that the classification was founded on an intelligible differentia which distinguished persons or things that were grouped together from those left out of the group and the differentia had a rational relation with the object sought to be achieved by the Ordinance. It, therefore, held that the Ordinance was not hit by Art. 14. It was further of the view that His Highness had legislative competence to promulgate the Ordinance when he did so and that when certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its powers to legislate even on these subjects so long as the State law was not repugnant to any law made by the Central Legislature, thus holding that there was concurrent power in the State of legislate even on the subjects transferred to the government of India. Finally, the High Court held that the repeal of S. 5 of the Constitution Act did not result in the Ordinance coming to an end, as S. 6 of the Jammu and Kashmir General Clauses Act saved it. It, therefore, dismissed the writ petition filed by the appellants. The main contentions of the appellants before us are these: 1. The Ordinance is unconstitutional as it violates Art. 14 of the Constitution. 2. There was no legislative competence in His Highness to issue the Ordinance under S. 5 of the Constitution Act, as His Highness had executed the Instrument of Accession on 26/10/1947, surrendering his powers regarding Defence, Communications and External Affairs to the Government of India and the Ordinance came under the head "Defence". 3. S. 5 of the Constitution Act was repealed by an amending Act, No. XVII of S. 2005, passed on 17/11/1951, and therefore the Ordinance also came to an end therfore the day S. 5 was repealed. 4. The Ordinance has in any case lasped as the conditions under which it was enacted had become obsolete and did not exist any more. 5. The Ordinance was void as it was inconsistent with Art. 352 of the Constitution and the Articles following.;