S N DHAR Vs. STATE OF J&K

JUDGEMENT

(1.) A number of doctors in the service of the Government of Jammu and Kashmir and serving in various capacities in different disciplines of medicine and surgery, have through this wit petition, called in question Government Older No. 340 -GR -HME of 1986 dated May 31, 1986, vide which, inter -alia, private practice of all Government doctors in the field of Allopathy including Dental Surgeons was ˜banned with effect from June 1, 1986. Cl. (1) of the order has been styled by the petitioners as a œblanket ban order on the private practice of all the Govt. doctors. Vide Cl. (2) of the impugned order, SRO -156, dated April 23, 1984 and all other SROs and orders issued on the subject earlier, were rescinded with effect from June 1, 1986. The impugned order provides for non -practising allowance to all the Government doctors at the scales mentioned in the order besides special incentive allowance for doctors posted in rural, backward & far flung areas & over & above the incentive allowance, a compensatory allowance for serving in the areas where the conditions of living are extremely difficult. The writ petition as originally presented questioned the aforesaid order on various grounds contained therein but before the start of arguments, a new dimension was added to the controversy by Mr. D.D. Thakur learned counsel for the petitioners who filed an application being C.M.P. (W) No, 1445 of 1986, seeking leave to urge some additional grounds. Through that, application, the very constitutionality of the Government of Jammu and Kashmir after March 7, 1986 (The Governors Rule) was assailed. The validity of Section 92 of the Constitution of Jammu and Kashmir, und which the Proclamation dated March 7, 1986 was issued by the Governor, imposing what is popularly known as the Governors Rule in the State, was questioned on various grounds and it was urged that any action taken by the Governor including the issuance of the impugned order after March 7, 1986 did not have any constitutional validity, According to Mr. Thakur, the Constitution of Jammu and Kashmir had been framed by a Constituent Assembly which had been convened by the Ruler, who had no plenary powers to convene such an Assembly after the application of Article 370 to the State of Jammu and Kashmir and, therefore, the Constitution of Jammu and Kashmir was only an œordinary legislation enacted by a œsubordinate assembly and its provisions, including Section 92, must give way to the provisions, of the Constitution of India & by the application of Article 356 of the Constitution of India to the State the provisions of Section 92 would I deemed to have been repealed Mr. Thakur also urged that with the application of Article 356 of the Constitution, the provisions of Section 92 would be œrepugnant, inoperative and ineffective The doctrine of repugnancy was also pressed into aid in support of the submission. It was also asserted that Section 92 of the State Constitution was unconstitutional on the ground that it destroyed the basic structure of the Constitution of Jammu and Kashmir. Because of these challenges a number of persons came up as intervenors to contest the stand taken by Mr. D.D. Thakur, and, therefore, what initially appeared to be a short and simple case of determining whether the œblanket ban order issued by respondent No. 1 was valid or not turned into a debate on the constitutional position of the State of Jammu and Kashmir vis a -vis the Union of India. Mr. D.D. Thakur, however, addressed arguments only with regard to the additional grounds referred to above and left the other aspects of the case to be argued by M/s K.N. Raina and Z.A. Shah. The learned Advocate General and all the intervenors controverted the stand taken by Mr. Thakur in that behalf and, interalia, it was contended by the Advocate General as also the intervenors that the State Constitution was enacted by a Constituent Assembly of the State which was exercising sovereign powers and had been duly convened by the Ruler of the State in exercise of his sovereign and plenary powers and therefore, it was wrong to style either the Constituent Assembly of the State as ˜subordinate assembly or the Constitution of Jammu and Kashmir s an œordinary law . It was also maintained that even after the application of Article 356 of the Constitution of India to the State of Jammu and Kashmir, the provisions of Section 92 of the State Constitution had neither lost their existence nor its efficacy or utility. The learned Advocate General also maintained that the validity of Section 92 of the State Constitution cannot be tested on the touchstone of the Constitution of India and that the doctrine of repugnancy had no application to the Constitutional provi ­sions of two separate constitutions and that Section 92 and Article 356 can co -exist as their areas were defined. It was also asserted that the theory of œbasic structure had no application to the Constitutional provis ­ions. Mr. S.T. Hussain further added that since the provisions of the State Constitution could only be amended by taking recourse to the provisions of Section 147 of the State Constitution, it was futile to contend that by the application of Article 356 of the Constitution of India, the provisions of Section 92 had been impliedly repealed. Mr. P.L. Handoo (who appeared for Mr. A.G. Lone) and Th. Baldev Singh vehemently urged that both Section 92 and Article 356 have to be harmoniously const ­rued and that the theory of œimpliedly repealed or ˜repugnancy has no application to the provisions of two distinct and separate Constitutions. They argued that Article 370 of the Constitution of India which governs the constitutional relationship of the State of Jammu and Kashmir with rest of the country, was not intended to effect the plenary powers of the Ruler to convene a Constituent Assembly for the State to frame its Constitution and, therefore, the Constitution of Jammu and Kashmir was enacted by a duly convened constituent Assembly and its provisions remain effective and operative till they are repealed in the manner provided in the Consti ­tution of Jammu and Kashmir and in no other manner.

(2.) WITH a view to appreciate the rival contentions on this aspect of the case, it is necessary to notice the evolutionary process which made the Jammu and Kashmir State an integral part of India and yet permitted a special position to be carved out for it in the Indian Union within the frame ­work of the Indian Constitution as also the events leading to, the framing of the Constitution of Jammu and Kashmir.

(3.) PRIOR to 1947, the Indian States, including the State of Jammu and Kashmir, were those areas in the Indian sub -continent, which were for internal purposes, outside the administrative, legislative and judicial sphere of the (British) Government of India. Almost each State had a hereditary Ruler who, subject to the paramountcy of the British Crown, exercised, with some exceptions, unlimited powers over his subjects. These States, covered more than half of the area of the Indian Sub -Continent and were re ­ferred to as œIndian India . The other œIndia was British India, comprising the provinces and certain other areas. The aftermath of the second world war and the assumption of power by a Labour Ministry in England brought about a change in the British Policy towards India. The Secretary of State for India, Lord Pethick -Lawrence announced on February 19, 1946, his Governments decision to send a delegation of three Cabinet Ministers comprising Lord Pathick Lawrence Sir Stafford Cripps and Mr. A.V. Alex ­ander, to India to find out a solution for the problem of India. This delega ­tion came to be known as œCabinet Mission . Besides trying to find a solu ­tion for Indian Problem, the Mission was also entrusted with the responsi ­bility of reviewing the relationship of the Indian native Princes with the par ­amount power. The Commission arrived in India on March 23, 1946, and on May 25, 1946, it issued a memorandum dated May 14, 1946 in regard to the States, treaties and paramountcy In this memorandum, the mission affirmed that the rights of the Indian native States which flow from their relationship with the British Crown, would after the creation of the Domini ­ons of India and Pakistan, no longer exist and the rights surrendered by those States to the paramount power would revert to the States. Paragraph 5 of the Memorandum provided as follows.