REHMAN SHAGOO Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(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

(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.