REHMAN SHAGOO Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) THIS is a petition linger Section 103 of the Constitution of Jammu and Kashmir and Article 32 (2-A) of the Constitution of India filed by Rahman Shagoo. Ghulam Ganai, Sidiq Sheikh, Sheer Abdul Aziz, Fazal Din Abdul Hamid Kara, Peerzada Ali Shah, Mohd, Amin Nehvi, Ghulam Mohiuddin Zargar at present in Judicial lock-up Central Jail Srinagar praying for a writ in the nature of mandamus to the State of Jammu and Kashmir not to enforce the Enemy Agents Ordinance being void against the petitioners, or an order in the nature of prohibition prohibiting the Special Judge from proceeding with the prosecution of the petitioners in cases, F. I. Rule 108 and F. I. Rule 53 of 1957, for a writ of certiorari quashing the proceedings in the Court of the Special Judge in the aforesaid cases and lastly for a writ in the nature of habeas corpus for setting the petitioners at liberty forthwith.

(2.) THE petitioners allege that they are being prosecuted for offences under Section 3 of the Enemy Agents Ordinance, Sections 3, 4 and 5 of the Explosive Substances Act and Section 120-B of the Ranbir Penal Code, Section 29 of the Public Security Act and Rules 28/32 of the Public Security Rules in the court of Special Judge, Srinagar, who has been appointed as such by Notification No. 1 of 1st October, 1957, by the Government of Jammu and Kashmir in exercise of powers under Section 5 (1) of the Enemy Agents Ordinance.

(3.) THE petitioners challenge the Enemy Agents Ordinance as being ultra vires of Section 5 of the Constitution of Jammu and Kashmir and as offending against Article 246 of the Constitution of India as applied to the State. It is stated that the aforesaid Ordinance, being of the nature of an emergency provision, is also ultra vires of the legislature of the State inasmuch as it offends against Article 352 and other allied Articles of the Constitution of India as applied to the State. Lastly they impugn die Ordinance on the ground that its provisions violate Article 14 of the Constitution of India as applied to the State of Jammu and Kashmir and are void under Article 13 of the said Constitution.