Rehman Shagoo And Others vs State Of Jammu And Kashmir

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 60 of 1958

Decision Date: 10 September 1959

Coram: K.N. Wanchoo, S.K. Das, A.K. Sarkar, M. Hidayatullah

In the matter of Rehman Shagoo and others versus the State of Jammu and Kashmir, the Supreme Court delivered its judgment on 10 September 1959. The opinion was authored by Justice K. N. Wanchoo, and the bench comprised Justices K. N. Wanchoo, S. K. Das, A. K. Sarkar, and M. Hidayatullah. The petitioners, identified as Rehman Shagoo and others, challenged the actions of the respondent State of Jammu and Kashmir. The case was cited as 1960 AIR 1 and 1960 SCR (1) 680. The central statutory provisions concerned the Constitution of Jammu and Kashmir, specifically the legislative competence of the Ruler, and an ordinance promulgated to create the new offence of aiding the enemy, which prescribed trial by special judges and a special procedure. The petitioners raised several contentions: (i) that the ordinance contravened Article 14 of the Constitution of India; (ii) that the Ruler lacked the legislative competence to issue the ordinance because it dealt with defence; (iii) that the repeal of Section 5 of the Jammu and Kashmir Constitution Act on 17 November 1951 terminated the ordinance; (iv) that the ordinance had lapsed because the emergency that justified its issuance had ceased; and (v) that the ordinance was void for being inconsistent with the Emergency provisions of Part XVIII of the Constitution of India. The court examined the historical context of the Jammu and Kashmir Constitution Act, which vested all legislative, executive, and judicial powers in the Ruler, and noted that, upon accession to India on 22 October 1947, the powers relating to defence, external affairs, and communications were transferred to the Union. Under Section 5 of the Constitution Act, the Ruler promulgated the Enemy Agents Ordinance, Section 2005, establishing procedures and punishments for enemy agents and persons assisting the enemy. The ordinance provided for trial by special judges and a procedure distinct from that of regular criminal courts. The appellants had been prosecuted under this ordinance for alleged offences committed on 27 and 28 June 1957.

The Court held that the Enemy Agents Ordinance was intra vires, valid, and remained in force. It concluded that the ordinance was not discriminatory and did not violate Article 14 of the Constitution of India. Considering the prevailing circumstances in the State, the Court found that “enemy agents” and persons aiding the enemy formed a reasonable classification, based on an intelligible differentia that distinguished them from others, and that this differentia bore a rational relation to the purpose of the ordinance, which was to prevent subversion of the government. The Court further observed that the ordinance, by creating an offence and prescribing a stringent procedure and punishment, applied uniformly to all persons who committed the offence, thereby negating any claim of discrimination. The decision referenced the precedent set in Ram Krishna Dalmia v. Justice S. R. Tendolkar, [1959] SCR 279, and affirmed that the ordinance was not legislation concerning defence but fell within the Ruler’s legislative competence. The entry “defence” was interpreted to pertain solely to armed forces and their operations, whereas the ordinance primarily addressed acts intending to aid the enemy, relating more to public order, criminal law, and procedure. Although Section 5 of the Constitution Act had been repealed, the ordinance survived by virtue of Section 6(b) of the same act.

The Court explained that the purpose of the Enemy Agents Ordinance was to prevent subversion of the Government. It observed that if the Ordinance did not create any separate class of persons but merely defined an offence and prescribed a strict procedure and punishment, then no discrimination arose because every individual who committed the offence would be subject to the same procedural regime. The Court cited the case of Ram Krishna Dalmia v. Justice S. R. Tendolkar, [1959] S.C.R. 279, as authority for this proposition. The Court further held that the Ordinance was not legislation concerning defence and therefore fell within the legislative competence of the Ruler. The entry “defence” in the constitutional scheme, the Court said, was limited to matters relating to the armed forces on land, sea or air, including the raising, maintenance and operations of such forces. By contrast, the Ordinance primarily addressed acts intended to aid the enemy, and although it touched indirectly on the armed forces, its main thrust was in the area of public order, criminal law and procedural matters, not defence. Consequently, the Ordinance was a valid exercise of the Ruler’s authority.

The Court noted that although section 5 of the Jammu and Kashmir Constitution Act had been repealed, the Ordinance was saved by section 6(b) of the Jammu and Kashmir General Clauses Act. Section 6(b) preserved, among other things, “anything duly done” under a repealed enactment, and the Ordinance qualified as a thing duly done under the now‑repealed section 5. The Court therefore described the Ordinance as a permanent piece of legislation. It acknowledged that the Ordinance was originally drafted in response to an emergency, but clarified that the emergency served only as the occasion for its enactment; the Ordinance itself was not limited to the emergency period. As a permanent law, it could cease to operate only by repeal enacted by a competent authority. The Court further held that the Emergency Provisions in Chapter XVIII of the Constitution of India bore no relevance to the validity of the Ordinance, and that no question of inconsistency between the Ordinance and those provisions arose. The judgment proceeded to set out the procedural background: it was a criminal appeal numbered 60 of 1958, arising from the judgment and order of 19 February 1958 of the Jammu and Kashmir High Court in Writ Petition No. 53 of 1957. Counsel for the appellants and for the State were listed, and the appeal was presented under a certificate granted pursuant to article 132 of the Constitution. The appellants also sought permission under article 132(3) to raise additional grounds beyond constitutional interpretation, and the Court allowed that application, permitting the appellants’ counsel to make further submissions.

In this appeal, the Court noted that the appellants were being tried before a Special Court created under the Enemy Agents Ordinance for alleged violations of section 3 of that Ordinance, sections 3, 4 and 5 of the Explosive Substances Act 1908, section 120‑B of the Penal Code and section 29 of the Public Security Act read with rules 28 and 32 made under that Act. The factual incidents that gave rise to the prosecution occurred on 27 June 1957 and 28 June 1957. The Court then described the historical background that led to the enactment of the Ordinance. It explained that hostile raiders from outside began attacking the region of Kashmir on 22 October 1947, and that the State of Jammu and Kashmir acceded to the Union of India on 26 October 1947. Shortly after the accession, the Enemy Agents Ordinance No. XIX of 1948 was passed in January 1948. A formal cease‑fire was declared on 1 January 1949 and the raids ceased. The present Ordinance was subsequently enacted on 24 January 1949, and its preamble declared that an emergency had arisen because of the wanton attacks by outside raiders and enemies of the State, which made it necessary to provide for the trial and punishment of enemy agents and of persons committing offences with the intent to assist the enemy. The preamble further indicated that the Ordinance was intended to amend and consolidate the earlier Ordinance XIX, thereby repealing the earlier law. The appellants, before the High Court, argued that the Ordinance was unconstitutional and void because it violated article 14 of the Constitution, that His Highness lacked the legislative competence to enact it, and that the Ordinance should have ceased to operate when section 5 of the Constitution‑Act was repealed in 1951. The High Court, however, held that the classification made by the Ordinance was reasonable, founded on an intelligible differentia that distinguished those within the class from those outside it, and that this differentia bore a rational relation to the purpose of the Ordinance. Consequently, the High Court concluded that the Ordinance did not offend article 14. The Court also found that His Highness possessed the legislative authority to promulgate the Ordinance at the time it was made, and that even after certain subjects were transferred to the Government of India by the Instrument of Accession, the State retained the power to legislate on those subjects so long as the State law was not repugnant to any central law, thereby recognising a concurrent legislative competence. Finally, the High Court ruled that the repeal of section 5 of the Constitution‑Act did not terminate the Ordinance because section 6 of the Jammu and Kashmir General Clauses Act preserved it, and therefore the writ petition filed by the appellants was dismissed.

The appellants raised five principal arguments before the Court. First, they contended that the Ordinance violated the equality principle guaranteed by Article 14 of the Constitution and was therefore unconstitutional. Second, they argued that His Highness lacked legislative authority to promulgate the Ordinance under section 5 of the Constitution Act because he had previously executed the Instrument of Accession on 26 October 1947, thereby surrendering his powers over defence, communications and external affairs to the Government of India, and the Ordinance pertained to the head of defence. Third, they maintained that section 5 of the Constitution Act had been repealed by Amendment Act No. XVII of 2005, enacted on 17 November 1951, and consequently the Ordinance should have ceased to operate on the date of that repeal. Fourth, they claimed that the Ordinance had, in any event, become defunct because the factual conditions that justified its enactment were no longer present. Fifth, they asserted that the Ordinance was void for being inconsistent with Article 352 of the Constitution and the subsequent articles.

The Ordinance, as drafted, contains several substantive provisions. Section 2 provides definitions for the terms “enemy” and “enemy agent.” Section 3 stipulates that any person who is an enemy agent, or who with intent to assist the enemy, does, attempts, or conspires with another to perform any act designed or likely to aid the military or air operations of the enemy, or to obstruct the military or air operations of Indian forces, the forces of His Highness, or the forces of any Indian State, or who endangers life or commits arson, shall be liable to punishments specified therein. Section 4 declares that any offence punishable under section 3 shall be tried under the Ordinance, and where an additional offence is committed alongside an offence under section 3, the same special Judge who tries the section‑3 offence shall also try the other offence according to the procedure laid down by the Ordinance. Section 5 deals with the appointment and jurisdiction of Special Judges. Section 6 empowers the State government to transfer a proceeding from one Special Judge to another and sets out the procedure to be followed by the Judge to whom the case is transferred. Section 7 prescribes that Special Judges shall follow the procedure for trial of warrant cases and that no commitment proceedings shall be required; the provision also grants Special Judges powers to record evidence, summon witnesses, grant adjournments, and treats the Special Judge as a Court of Session. Section 8 provides for the sentencing powers of the Special Judge. Section 9 authorises a Judge of the High Court, designated by the Government, to review decisions, and declares the review decision to be final. Section 10 allows the Special Judge and the reviewing Judge to conduct proceedings in camera when it is expedient for public safety or the defence of the State.

The judgment recorded that Section 11 of the Ordinance allowed an accused person who was triable under the Ordinance to be defended by a pleader only when the Special Judge or the Reviewing Judge granted permission for such representation, and it also empowered those judges to appoint a pleader for an accused who had not engaged one on his own. Section 12 created a special rule of evidence whereby the Special Judge could admit certain statements that had been recorded by a magistrate when the person who made those statements was dead, could not be found, or was otherwise incapable of giving evidence. Section 13 gave the Special Judge powers to deal with situations that arose from the intransigent conduct of accused persons during the trial. Section 14 removed the power of all other courts to interfere with the proceedings or orders of the Special Judge, to transfer any case pending before him, or to make any order under section 491 of the Code of Criminal Procedure. Section 15 prohibited the making of copies of the records of any case before a Special Judge to anyone except the accused or his pleader, and it made it an offense for an accused or pleader to show such a copy to another person or to disclose its contents to anyone other than in the course of the proceedings for which the copy was obtained; the provision further required that any copies be returned within ten days after the conclusion of the proceedings before the Special Judge. Section 16 provided that the Code of Criminal Procedure or any other law in force would apply to proceedings under the Ordinance insofar as such laws were not inconsistent with its provisions. Section 17 made disclosure of information prohibited under Section 15 punishable. Section 18 gave the Government authority to make rules necessary to give effect to the purposes of the Ordinance. Section 19 repealed the Enemy Agents Ordinance, XI of 2004, but stipulated that all rules made, orders issued, prosecutions taken, actions pursued, and punishments awarded under the repealed Ordinance would be deemed to have been made, issued, taken, and awarded under the present Ordinance. The Court observed that, from this analysis, the procedure established by the Ordinance differed materially from the ordinary procedure of criminal courts dealing with offences. The appellants contended that this difference amounted to discrimination, rendering the Ordinance void and unconstitutional because it violated Article 14 of the Constitution. The Court noted that the principles of Article 14 have been discussed in numerous decisions and that, while Article 14 forbids class legislation, it does not forbid reasonable classification for legislative purposes. To satisfy the test of permissible classification, two conditions must be met: first, the classification must be founded on an intelligible differentia that distinguishes the persons or things grouped together from those left out; second, that differentia must have a rational relation to the object sought to be achieved by the statute. The Court further explained that classification may be based on geography, objects, occupations, or similar bases, but there must be a nexus between the basis of classification and the purpose of the Act. Moreover, the Court reiterated that Article 14 condemns discrimination not only in substantive law but also in procedural law.

The Court explained that for a classification to satisfy Article 14 of the Constitution, two requirements must be met. First, the classification must be based on an intelligible differentia that distinguishes the persons or things that are grouped together from those that are excluded from the group. Second, that differentia must have a rational connection to the purpose that the statute seeks to achieve. The Court noted that the basis of classification may rest on varying criteria, such as geography, the nature of objects, occupations, or similar considerations, but there must always be a clear nexus between the chosen basis and the object of the legislation. In addition, the Court reiterated that Article 14 condemns discrimination not only in substantive law but also in procedural law, a principle established by earlier decisions, including the case of Sri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1). Accordingly, the Court emphasized that the test of reasonable classification applies to both the substance and the procedure of any enactment.

Applying this test, the Court examined the Ordinance that was enacted in January 1949, shortly after the cease‑fire that ended the overt attacks by external raiders and enemies of the State. Although the raids had ceased, the authorities believed that the emergency situation persisted, requiring a special mechanism for the trial and punishment of enemy agents and others who committed offences with the intent to assist the enemy. The Ordinance therefore defined “enemy” as any person, directly or indirectly, who participated in or assisted the recent campaign carried out by external raiders to subvert the government established by law in the State. An “enemy agent” was defined as a person who, while not a member of an enemy armed force, was employed by, worked for, or acted on instructions received from the enemy. These definitions created a distinct class of individuals, thereby satisfying the requirement of an intelligible differentia. Section 3 of the Ordinance prescribed punishment for any enemy agent or for a person who performed certain acts with the intention of aiding the enemy. The Court found no doubt that, given the circumstances prevailing at the time, the classification was reasonable because it distinguished those covered by the Ordinance from all others. Moreover, the differentia bore a rational relationship to the Ordinance’s objective of preventing subversion of the lawful government. Even after the raids ended, the danger of subversion remained, and the threat from persons intent on assisting the enemy persisted. Consequently, the special procedural regime established by the Ordinance for trying enemy agents or persons acting with the intent to aid the enemy was justified and did not infringe the equal‑ protection guarantee of Article 14.

The Court observed that the Ordinance does not claim to create any classification of individuals but merely defines an offence and establishes a stringent procedure for punishing that offence; therefore, there is no discrimination because anyone who commits the offence is subjected to the same rigorous process. It was further noted that, to defeat an allegation of discrimination, a permissible classification need not be limited to persons; certain crimes may be so grave that they can appropriately be treated as a distinct class and tried by a separate procedure. The offence created by section 3 of the Ordinance does not exist in the Penal Code; it is a new aggravated offence which, given the circumstances prevailing in the State, may be regarded as different from ordinary crimes and may justifiably be dealt with by a drastic procedure without violating the equal‑protection clause. Consequently, the Court held that, applying the principles laid down in the numerous cases summarised in the Dalmia case (1), the Ordinance cannot be described as discriminatory nor as contravening Article 14 of the Constitution, and the challenge to its constitutionality on that ground must be dismissed. Regarding the second point, the Court noted that the Ordinance claims to have been promulgated under section 5 of the Constitution‑Act, which declares that all legislative, executive and judicial powers relating to the State and its government were always inherent in and retained by His Highness, and that nothing in the Act was intended to affect the prerogative of His Highness to enact laws, proclamations, orders or ordinances by virtue of his inherent authority. However, it was submitted that, because the State acceded to India on 26 October 1947, certain matters were transferred to the Government of India, leaving His Highness without legislative power over those surrendered matters. Those matters are listed in the Schedule to the Instrument of Accession (2), which comprises twenty items grouped under four heads: (A) Defence, (B) External Affairs, (C) Communications and (D) Ancillary. The Court clarified that heads (B) and (C) are not relevant here and only the items under heads (A) and (D) need consideration. Under the head “Defence” there are four items: (i) the naval, military and air forces of the Dominion and any other armed force raised or maintained by the Dominion, including forces raised or maintained by an acceding State that are attached to or operating with the Dominion’s forces; (ii) naval, military and air‑force works and the administration of cantonment areas; (iii) arms, firearms and ammunition; and (iv) explosives. Similarly, four items fall under the head “Ancillary,” which were to be examined in the subsequent discussion.

In the Schedule attached to the Instrument of Accession, four specific matters were listed. The first item dealt with elections to the Dominion Legislature, subject to the provisions of the Act and any order made under it. The second item concerned offences against laws relating to any of the aforesaid matters. The third item covered inquiries and statistics required for the purposes of any of the aforesaid matters. The fourth item addressed the jurisdiction and powers of all courts with respect to any of the aforesaid matters, but only with the consent of the Ruler of the acceding State and not in a way that would confer jurisdiction or powers on any courts other than those ordinarily exercising jurisdiction in or in relation to that State. The appellants argued that the provisions of the Ordinance fell within item (1) under the head “Defence”. They also contended that the High Court erred in holding that there was concurrent jurisdiction in both the State and the Central Legislature even for items listed in the Schedule, and that a proper construction of the Instrument of Accession gave the Central Legislature alone the authority to legislate on the matters enumerated in the Schedule. The Court did not consider it necessary to decide whether the State possessed concurrent power to legislate on the Schedule matters; instead it proceeded on the assumption that only the Central Legislature had the power to legislate on those matters. The immediate question that arose was whether the Ordinance was covered by item (1) under the head “Defence”. The other items under either the head “Defence” or the head “Ancillary” were deemed irrelevant for this purpose. If the Ordinance was not covered by item (1) under the head “Defence”, then it would be within the competence of the State Legislature or of His Highness to promulgate it, because all matters not falling within the twenty items of the Schedule remained with the State. Item (1) under the head “Defence” concerned the naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion, and also included any armed forces raised or maintained by an acceding State that were attached to or operating with the Dominion’s forces. No matter how broadly this entry was interpreted, it dealt solely with armed forces—whether on land, sea or air—and their raising, maintenance and operations. The Court found that the Ordinance bore no relation to the matters covered by this entry. Although the Ordinance defined “enemy” and “enemy agent” and created offences linked to acts intended to aid the enemy, including assistance to the enemy’s military or air operations or hindrance of the Indian forces’ military or air operations, the substance of the Ordinance was unrelated to the scope of item (1) under the head “Defence”.

In this case the Court observed that the Ordinance was only indirectly connected with the operations of the armed forces. Its principal aim was to address individuals who, with the intention of assisting the enemy, performed certain acts such as providing assistance to the enemy’s military or air operations or obstructing the military or air operations of the Indian armed forces. Apart from this reference to military or air activities, the remaining provisions of the Ordinance bore no relation to the armed forces. When the substance of the Ordinance is examined, it becomes clear that it targets persons who engage in subversive conduct against the law‑established government by becoming enemy agents or by carrying out acts intended to aid the enemy. Accordingly, the Ordinance principally concerns matters of public order, criminal law and criminal procedure. The Court therefore held that a mere indirect impact upon the armed forces, as found in section 3 of the Ordinance, does not transform the law in its essential character into a legislation that falls under item (1) of the “Defence” head in the Schedule. Consequently, the contention that the Ordinance exceeded the legislative competence of His Highness, on the ground that certain powers were ceded to the Government of India by the Instrument of Accession dated 26 October 1947, was rejected.

The Court then turned to the argument that the repeal of section 5 of the Constitution‑Act on 17 November 1951 rendered the Ordinance, which had been enacted under that section, void. The Court dismissed this argument as untenable. It pointed out that clause (b) of section 6 of the Jammu and Kashmir General Clauses Act (J.K. XX of 1977) expressly preserves the effect of any enactment that had previously been lawfully made. The clause states that when an Act repeals any earlier enactment, the repeal shall not, unless a different intention appears, affect the prior operation of the repealed enactment or any act duly done under it. The promulgation of the Ordinance was such a “thing duly done” under the authority of section 5 of the Constitution‑Act. Hence, the later repeal of section 5 only withdrew the legislative power from the date of repeal and could not invalidate actions taken while that power existed. A law enacted under a constitutional provision retains its validity after the repeal of that provision, provided it is not inconsistent with the Constitution as amended. The Ordinance therefore continued to draw its authority from the fact that it was within the legislature’s competence at the time of its passage and, being a permanent measure, would remain in force until formally amended or repealed under the amended Constitution‑Act.

The Ordinance, having been passed as a permanent law, would continue until it was amended or repealed under the amended Constitution‑Act. Accordingly, the Court held that the Ordinance did not cease to operate when section 5 of the Constitution‑Act was repealed and that it remained a valid piece of legislation pursuant to section 6(b) of the Jammu and Kashmir General Clauses Act. Re (4). The appellants argued that conditions in the State had changed significantly since 1949 and therefore the Ordinance should be considered to have lapsed. The Court observed that even assuming the conditions were not identical to those of 1949, the argument contained no substance. The Ordinance was enacted as a permanent law; although it was introduced in response to an emergency, the emergency was only the occasion for its passage. The purpose of the Ordinance was to address a deeper evil, namely subversion of the law‑established government in collaboration with the State’s enemies. Because it was permanent, the only way to terminate it was by repeal by a competent authority. The appellants had not shown that any competent authority had repealed the Ordinance. Consequently, the Court held that the Ordinance remained in force until such a repeal, even if present conditions differed from those of 1949. This contention therefore failed. Re (5). The appellants further contended that the Ordinance was unconstitutional because it conflicted with Article 352 and the subsequent articles of the Constitution. The Court remarked that Article 352 and the emergency provisions in Part XVIII of the Constitution bore no relevance to the validity of the Ordinance. The Court could not discern any inconsistency between the Ordinance and the provisions of Part XVIII, and therefore dismissed this contention. The Court then noted three additional points raised by the appellants during argument: first, that section 4(1) of the Ordinance was violative of Article 20(1) of the Constitution; second, that section 11(1) was violative of Article 22(1); and third, that the Special Judge lacked jurisdiction to try an offence under the Explosive Substances Act. The Court observed that these points had not been raised in the writ petition nor before the High Court, and therefore the Court was reluctant to allow them to be introduced for the first time. In passing, the Court pointed out that the offences alleged to have been committed by the appellants occurred in June 1957 and that the appellants had been permitted to retain counsel of their choice, so they could not claim any grievance concerning the first two points.

The Court noted that the first two objections raised by the appellants could be addressed only in a proceeding where a specific grievance was demonstrably established. It emphasized that, because those objections had not been presented in the original writ petition nor before the High Court, they could not be entertained in the present appeal without a concrete grievance. Concerning the third objection, the Court examined the claim that the Special Judge lacked jurisdiction under the Explosive Substances Act and found that the contention possessed no substantive merit. Having determined that none of the three points supplied a viable ground for relief, the Court concluded that the appeal was devoid of any legal force or effect. Accordingly, the Court ordered that the appeal be dismissed in its entirety and that no further proceedings be taken on the matter. The dismissal of the appeal means that the orders of the lower courts remain undisturbed and the petitioners obtain no relief from this forum. Should the petitioners later establish a specific injury and raise the same objections in a fresh proceeding, the Court indicated that such matters could be revisited.