P. L. Lakhanpal vs The State Of Jammu And Kashmir

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 396 of 1955

Decision Date: 20 December 1955

Coram: Bhuvneshwar P. Sinha, Natwarlal H. Bhagwati, B. Jagannadhadas, Syed Jaffer Imam

The case titled P. L. Lakhanpal versus the State of Jammu and Kashmir was decided on 20 December 1955 by the Supreme Court of India. The judgment was authored by Justice Bhuvneshwar P. Sinha, and the bench comprised Justices Bhuvneshwar P. Sinha, Natwarlal H. Bhagwati, B. Jagannadhadas and Syed Jaffer Imam. The petitioner, P. L. Lakhanpal, challenged a detention order issued by the Government of Jammu and Kashmir, while the respondent was the State of Jammu and Kashmir. The decision date was 20 December 1955 and the bench composition was reiterated as Justice Sinha, Justice Bhuvneshwar P. Sinha, Justice Das, Justice Sudhi Ranjan Bhagwati, Justice Natwarlal H., Justice Jagannadhadas, Justice B. Imam and Justice Syed Jaffer. The citation for the case is recorded as 1956 AIR 197 and 1955 SCR (2) 1101.

The legal provisions in issue were Article 13, Article 21, Article 22 and clause (c) to Article 35 of the Constitution of India, as they related to the Jammu and Kashmir Preventive Detention Act, 2011 (Act VI of 2011). Specific sections of that Act that were examined included section 3(1)(a)(i) and section 8(1) Proviso, together with the Constitution (Application to Jammu and Kashmir) Order, 1954. The court considered whether a detention order made under sections 3(1)(a)(i) and 8(1) Proviso of the Act violated the fundamental rights guaranteed under Articles 21 and 22 of the Constitution, and whether the failure to supply the grounds of detention to the detenu infringed his personal liberty. The effect of adding clause (c) to Article 35 of the Constitution was also a point of analysis.

According to the headnote, the petitioner had been confined in Kothibagh sub-jail, Srinagar, pursuant to an order issued under section 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011. He contested the detention on several grounds. First, he alleged that the order encroached upon his fundamental right to life and personal liberty protected by Article 21, as extended to Jammu and Kashmir. Second, he claimed that the order violated his right under clause 5 of Article 22, also extended to the state, because the authorities had not disclosed the grounds on which his detention was based. The petitioner further contended that the provision of section 8(1) Proviso, which permitted nondisclosure of the grounds, was unconstitutional because it conflicted with Articles 21 and 22 and thus should be void to the extent of that inconsistency under Article 13.

The Court held, overturning the petitioner’s contention, that section 8(1) Proviso was not unconstitutional. The Court explained that the Constitution (Application to Jammu and Kashmir) Order, 1954 superseded the earlier Constitution (Jammu and Kashmir) Order, 1950, and that clause (c) added to Article 35 altered the effect of the constitutional provision. Consequently, any part of the Act that conflicted with Part III of the Constitution would remain valid for a period of five years from the commencement of the Order.

The judgment was delivered under original jurisdiction in Petition No. 396 of 1955, filed under Article 32 of the Constitution for a writ of habeas corpus. Counsel appearing for the petitioner included R. Patnaik. Representing the Union of India were M. C. Setalvad, Attorney-General of India; C. K. Daphtary, Solicitor-General of India; and Raja Jaswant Singh, Advocate-General of Jammu and Kashmir.

Advocates for the respondent appeared on behalf of the State of Jammu and Kashmir, while an advocate for the Intervener represented the Attorney-General of India. The judgment was delivered by Justice Sinha. The petition before the Court was an application for a writ of habeas corpus directed against the State of Jammu and Kashmir. The State had issued an order on 4 October 1955 directing the detention of the petitioner under section 3 of the Jammu and Kashmir Preventive Detention Act, cited as Jammu and Kashmir Act IV of 2011, and the order was therefore referred to as “the Act.” At the outset the State of Jammu and Kashmir was the sole respondent. After a rule nisi had been issued to the State, the Union of India entered the proceedings as an intervener because the petitioner challenged the validity of the Constitution (Application to Jammu and Kashmir) Order, 1954. The petitioner, identified as P. L. Lakhanpal, was described as being about twenty-eight years of age and as the Chairman of the End Kashmir Dispute Committee. He sought relief from his detention in Kothi Bagh sub-jail in Srinagar. The application set out a series of factual allegations concerning the petitioner’s residence, his travel to Kashmir, and his political activities, all of which formed the basis of his claim that the detention order was unlawful.

The petitioner asserted that he ordinarily resided at 9821, Nawabganj, Delhi 6, and that he had entered Kashmir on a permit dated 24 September of the same year for a “study-cum-pleasure trip.” He stated that his involvement in Kashmiri politics began in 1946 when, as General Secretary of the Congress Socialist Party in Lahore, he had been closely associated with the “Quit Kashmir movement.” He further claimed that he had authored a book titled “Communist Conspiracy in Kashmir,” copies of which were initially seized by the Delhi Police but later released. In the book and in various public statements, the petitioner said that he had offered trenchant criticism of the cabinet headed by Bakshi Ghulam Mohammed as well as of the Government of India’s policy on Kashmir. He described himself as a supporter of Sheikh Mohammad Abdullah, the former Prime Minister of Kashmir, and alleged that a “heinous conspiracy” motivated by the desire for power existed between the communists and right-wing elements on one side and Bakshi Ghulam Mohammed on the other. He claimed to have campaigned for the former Prime Minister, denounced police excesses under the Bakshi Government, and asserted that the State Constituent Assembly had lost the confidence of the people. He further declared that the Bakshi cabinet, which he said was dominated by communists, was “the most corrupt, the most tyrannical and the most hated Government that the State has ever had.” The petitioner said that similar opinions were expressed in telegrams purportedly addressed to the Sadar-i-Riyasat of Jammu and Kashmir, the President of India, and the Prime Minister of India, indicating a persistent campaign to secure public support for his views on Kashmir.

In his own account, the petitioner asserted that he had organised a persistent campaign aimed at gaining public and political support for his views on Kashmir. He claimed that this campaign had created a sharp controversy between him and the Prime Minister of India. He referred to statements that the Prime Minister had allegedly made, noting that it was unnecessary to repeat them in full, but he quoted one passage in which the Prime Minister said, “During the last few months, however, I have become aware of his activities and have inquired into them. These inquiries led me to the conclusion that these activities are of a most objectionable character which can only help the enemies of our country.” The petitioner also said that he held the position of General Secretary of the World Democratic Peace Congress and that he had made further accusations against the Prime Minister of India, although he considered those accusations to be irrelevant to the present case. In addition, he complained that a daily newspaper of Srinagar called Khidmat had reported that the current Prime Minister of Jammu and Kashmir had described him as “a traitor and an enemy of the nation.” He then narrated a series of movements and meetings that he conducted over a three-day period. On 29 September he departed Srinagar for Anantnag in the company of Mirza Afzal Mohammed Beg, who was described as the leader of the opposition in the State Assembly and President of the Jammu and Kashmir Plebiscite Front, and who was also reported to be detained under the orders of the Jammu and Kashmir Government as communicated by the Advocate General. During his stay in Anantnag, the petitioner said he spent two days as a guest of Mr Beg, meeting people from the town and surrounding areas and listening to their accounts of hardship. On 30 September he addressed an informal gathering of Plebiscite Front workers at Mr Beg’s residence. He returned to Srinagar on 1 October, left for Sopore on 2 October, and there addressed an informal assembly of several hundred workers, repeating the themes he had expressed in Anantnag.

On 3 October, the petitioner claimed that he personally submitted an application to the private secretary of the Chief Secretary of Jammu and Kashmir, seeking permission to interview Sheikh Abdullah, who was then detained in the Kad jail. He further stated that, while in Srinagar, he had made several unsuccessful attempts to obtain a meeting with the State Prime Minister. The following afternoon, 4 October, he held a press conference during which he issued a written statement in which he complained of “such barbaric brutalities, such insecurity of life, property and honour, and such callousness on the part of the administration as are evidenced in your valley only go to show that the Bakshi Government is just another name for legalized lawlessness, disorder, corruption and nepotism.” This statement formed part of the narrative he presented in support of his claims and allegations against the authorities.

On the morning of 5 October, the Superintendent of Police in Srinagar read to the petitioner the detention order that had been issued by the Cabinet and then took him into custody, placing him in the sub-jail at Kothi Bagh. The detention order, reproduced as Annexure “D” on page 20 of the paper-book, is worded as follows: “GOVERNMENT OF JAMMU AND KASHMIR CHIEF SECRETARIAT (GENERAL DEPARTMENT) Subject – Detention of P. L. Lakhanpal, Chairman, End Kashmir Dispute Committee, presently residing in Kashmir Guest House, Lal Chowk, Amira Kadal, Srinagar, under section 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011. Read – Memorandum No. IS-164-D/55 dated 4-10-1955, from the Minister In-charge, Law and Order. Order No. 1644-C of 1955 dated 4th October, 1955. The Government having considered the facts stated in the memorandum of the Minister In-charge, Law and Order, is satisfied that it is necessary to detain P. L. Lakhanpal, Chairman, End Kashmir Dispute Committee, at present residing in Kashmir Guest House, Lal Chowk, Amira Kadal, Srinagar, with a view to preventing him from acting in any manner prejudicial to the security of the State. Accordingly the Government hereby accords sanction to the Order annexed hereto and authorises the Chief Secretary to Government to issue the same over his signature. By Order of the Cabinet, Sd. G. M. Bakshi Prime Minister.” The actual document served on the petitioner is annexed to the cabinet order as Annexure “E” on page 21 of the paper-book and reads: “GOVERNMENT OF JAMMU AND KASHMIR. Annexure to Cabinet Order No. 1644-C of 1955, dated 4-10-1955. Order. Whereas the Government are satisfied with respect to P. L. Lakhanpal, Chairman, End Kashmir Dispute Committee, presently residing in Kashmir Guest House, Lal Chowk, Amira Kadal, Srinagar, that with a view to preventing him from acting in a manner prejudicial to the security of the State it is necessary to make an order directing that the said P. L. Lakhanpal be detained: Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Jammu and Kashmir Preventive Detention Act, 2011, the Government are pleased to order that the said P. L. Lakhanpal be detained in sub-jail, Kothi Bagh, Srinagar; Notice of this Order shall be given to the said P. L. Lakhanpal by reading over the same to him. By order of Government. Sd. Ghulam Ahmad Chief Secretary to Government.” The petitioner challenges this order on the grounds that it is malicious, mala-fide, vague and capricious, and that it unlawfully deprives him of his fundamental right to life and personal liberty guaranteed under article 21 of the Constitution as extended to the State of Jammu and Kashmir. He also contends that the detention order is unwarranted and illegal because the communication addressed to the jail authorities lacks the Prime Minister’s signature and because, despite repeated demands, he has not been provided with the specific grounds on which the detention was based, thereby violating his statutory right to be informed of the reasons for his confinement.

In the petition, the applicant contended that the failure to provide him with the grounds for his detention violated his fundamental rights guaranteed under clause (5) of article 22 of the Constitution as extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954. The State responded by filing an answer to the petitioner’s affidavit. The answer was presented in an affidavit sworn by Shri Pirzada Ghulam Ahmad, who was then the Chief Secretary to the Government. In that affidavit the State denied the petitioner’s claim that he had come to Kashmir merely on a study-cum-pleasure trip. The affidavit asserted that during his stay the petitioner actually engaged in activities that were prejudicial to the security of the State, and that the Government was satisfied that it was not in the public interest to disclose to the petitioner the grounds on which the detention order was based. The affidavit further explained that the Cabinet ordered the petitioner’s detention not for any collateral purpose but because the Government was convinced that the petitioner’s activities were calculated to prejudice the security of the State. The State rejected the petitioner’s allegations of improper motive and mala fides, describing them as wholly unfounded and baseless. It also denied that the detention was illegal or that the provisions of the Act under which the order was made were unconstitutional. The affidavit concluded by stating that the Government apprehended that, if the petitioner were released, he was likely to indulge in further activities that would greatly jeopardise the security of the State, and that the detention order was issued solely to prevent the petitioner from committing any further mischief. The Act that is being challenged is said to remain in force for five years from the date of its commencement. Section 3 of the Act provides, in relevant part, that the Government may, if satisfied that it is necessary to prevent any person from acting in any manner prejudicial to the security of the State, make an order directing that such person be detained. The principal challenge to the orders served on the petitioner centres on a paragraph in the order dated 7 October 1955, which states: “Now, therefore, the Government, in exercise of the powers conferred by the proviso to sub-section (1) of section 8 of the said Act, hereby declares that it would be against the public interest to communicate to the said P. L. Lakhanpal the grounds on which the detention order has been made.” That portion of the detention order is consistent with section 8 of the Act, which provides that when a person is detained pursuant to a detention order, the authority making the order shall, as soon as possible, communicate the grounds for the order, unless the Government, by order, declares that communicating those grounds would be contrary to the public interest, and that no disclosure of facts deemed against the public interest shall be required.

Section 8(1) required the authority making a detention order to, as soon as may be, communicate to the detained person the grounds on which the order had been made and to afford him the earliest opportunity of making a representation against the order to the Government. However, the provision included a qualification stating that nothing in that sub-section would apply to any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State if the Government, by order issued for that purpose, declared that it would be against the public interest to communicate to him the grounds of the detention. Sub-section (2) further clarified that nothing in sub-section (1) required the authority to disclose facts which it considered to be against the public interest to disclose. The proviso to this section was intended to cover cases that fell within the scope of section 3(1)(a)(i) of the Act; consequently, an individual such as the petitioner, who had been detained to prevent him from acting in any manner prejudicial to the security of the State of Jammu and Kashmir, fell outside the general rule of section 8(1) because the Government had declared, as it did here, that public interest forbade communication of the grounds of his detention. It was not disputed that the detention orders served on the petitioner were justified under the terms of the quoted section. Nevertheless, counsel for the petitioner argued that the terms of the section were unconstitutional because they were inconsistent with articles 21 and 22 of the Constitution and therefore void to the extent of such inconsistency under article 13. This argument assumed that the petitioner could rely on those constitutional provisions. The petitioner did not contend that, apart from the provisions of Part III of the Constitution, he possessed any other fundamental rights. Accordingly, if articles 21 and 22 were set aside, as the Court would later find, the argument would lose its force. Moreover, the Constitution did not apply in its entirety to the State of Jammu and Kashmir. On 14 May 1954, the President of India, exercising the powers conferred by clause (1) of article 370 of the Constitution and with the concurrence of the Government of the State of Jammu and Kashmir, issued the Constitution (Application to Jammu and Kashmir) Order, 1954 ("the Order"). The Order came into force on the same day, superseding the Constitution (Application to Jammu and Kashmir) Order, 1950. By its terms, the Order stipulated that, in addition to articles I and 370, specified provisions of the Constitution would apply to the State of Jammu and Kashmir subject to the exceptions and modifications indicated therein.

For the purpose of this decision, the Court noted that the Order issued under Article 370 made specific exceptions and modifications to the Constitution as they applied to Jammu and Kashmir. First, the Order replaced the word “Parliament” with the expression “The Legislature of the State of Jammu and Kashmir” in clauses (4) and (7) of Article 22. By this substitution, the Court observed that the State Legislature acquired the power to enact laws concerning preventive detention. Secondly, the Order inserted a new clause (c) into Article 35. The text of that clause read as follows: “No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.” The Court explained that the practical effect of this amendment was to permit any provision of the Act that conflicted with Part III of the Constitution to remain valid for a period of five years measured from the date the Order came into force. The Court characterized this as a temporary exception grafted onto the Constitution, specifically concerning fundamental rights related to personal liberty, and emphasized that the Act itself was designed to have a life of five years. Consequently, the Court held that the temporal scope of the exception coincided exactly with the life of the Act. As long as the Act continued to operate in its original form, the Court concluded that the provisions of Articles 21 and 22, to the extent that they were inconsistent with the Act, could not be invoked by the petitioner. Accordingly, the Court found no basis to declare section 8 of the Act unconstitutional for being at odds with Articles 21 and 22, and therefore determined that Article 13 offered no assistance to the petitioner. The Court further assumed that Article 32, under which the petition was filed, was available to the petitioner, although the Attorney-General, appearing for the respondents, had suggested that even Article 32 might not be applicable. Because that contention was not raised as a preliminary objection and because the petitioner’s counsel was not heard on that point, the Court did not examine or rule on the extreme proposition. In the Court’s view, the inclusion of clause (c) to Article 35 by the President’s Order already deprived the petitioner of the benefit of Articles 21 and 22, rendering any additional analysis unnecessary. The Court therefore recognized the difficulty faced by the petitioner in light of the operation of clause (c).

In this case the counsel for the petitioner modestly advanced the proposition that clause (c) of article 35, which had been inserted by the President’s Order, was itself invalid because it allegedly exceeded the powers granted to the President by article 370 of the Constitution. The petitioner, however, did not attempt to demonstrate in any concrete manner how the Presidential Order transgressed the limits of article 370. No contention was raised that article 370 failed to authorize the President to issue the Order; rather, the argument was that, although the President was empowered under article 370 to make the Order, he nevertheless went beyond the scope of that authority. Beyond this assertion, the petitioner offered no tangible reasons or supporting material to sustain such an extreme view.

The Court observed that article 370(1)(c) and (d) expressly permit the President, by Order, to delineate the exceptions and modifications applicable to the Constitution—excluding articles I and 370 themselves—under which the Constitution will operate in the State of Jammu and Kashmir. Accordingly, clause (c) that was added to article 35 applies solely to the State of Jammu and Kashmir. The Court found that Section 8 of the Act does not exceed or conflict with the provisions of the added clause (c) to article 35. Consequently, the detention orders served on the petitioner are consistent with, and not beyond, the provisions of Part III of the Constitution that are applicable to Jammu and Kashmir. The Court therefore held that the petitioner was not entitled to be informed of any grounds for his detention beyond those disclosed in the order itself.

The petitioner further argued that the detention order served on him, or the copy sent to the jail officer, lacked the signature of the Prime Minister of Jammu and Kashmir. The Court noted that no statutory provision requiring the Prime Minister’s signature on either the detainee’s copy or the copy forwarded to the jail officer had been identified. Moreover, the lengthy petition filed by the petitioner, which lacked sobriety of language and precise accuracy, contained no suggestion to that effect, and no supporting material had been produced. As a result, the Court could not give any consideration to this unfounded and irresponsible contention. In the Court’s view, all the legal grounds raised in support of the petition were without substance. The Court also observed that it had not called upon the Attorney-General, who appeared for the respondents, to address any allegation that the impugned order was malicious or acted in bad faith.

The Court observed that the petition showed a lack of bona fides because the factual material set out in the accompanying affidavit failed to establish any foundation on which the Court could, even in the slightest degree, draw the inference that had been suggested. In examining the affidavit, the Court noted that no factual basis was articulated that would permit a reasonable inference in support of the relief sought, and therefore the petition could not be said to be made in good faith. Having considered these observations, the Court concluded that the application possessed no substantive merit. Accordingly, the Court held that, in view of the foregoing reasons, the rule that had been invoked by the applicant could not be sustained and was therefore discharged. The Court further directed that the application be dismissed in its entirety.