ABDUL GHANI Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) :-

(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:-

(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.