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Right of a Citizen of Jammu and Kashmir to move Supreme Court under Art. 32

The Supreme Court of India on 18 December 1970 in Abdul Ghani Vs. State of Jammu & Kashmir, AIR 1971 SC 1217 : 1971 (3) SCR 275 : (1971) 3 SCC 225 has held that “When the petitioner was informed that it was not in the public interest to disclose the grounds to him there was no need to serve on him the copy of the direction under which be was so informed”.

A bench comprising of Justice Bhargava and Justice Vishishtha observed that “the proviso to s. 8 uses the words ‘public interest’. Any action in the interest of the security of the State is clearly in public interest and so the direction was fully covered by the proviso”.

Jammu and Kashmir Preventive Detention Act, 1964

By an order under s. 3(2) read with s. 5 of the Jammu and Kashmir Preventive Detention Act, 1964, dated 9th May 1970, the petitioner was detained on 22nd May, 1970. On the same day, in pursuance of a direction made by the District Magistrate on 9th May 1970, under the proviso to s. 8, the petitioner was informed that it was against the interests of the security of the State to disclose to him the grounds on which the detention order was made. The detention was confirmed by the State Government.

In a petition under Art. 32, the Apex Court held that the introduction of the provision contained in Art. 35(c), when applying the Constitution to the State of Jammu and Kashmir did not in any way affect the right of a citizen of Jammu and Kashmir to move the Supreme Court of India for an appropriate writ under Art. 32. Its effect was only that when approaching this Court the detenu could not challenge the validity of the Act on the ground that any of its provisions contravened Art. 22. Therefore, it has no bearing on Art. 32(4).

Further, under Art. 370 the President is given full discretion to apply the Constitution with such exceptions and modifications as he may, by Order, specify. At the time of applying the Constitution, no fundamental rights existed in the State of Jammu & Kashmir and they came into existence in the modified form only by virtue of the Order of the President applying the Constitution. ‘Such a modification at the initial stage cannot be challenged on the ground that it abridges any of the fundamental rights.

The present case was not a case where the District Magistrate could be held to have passed the order without any material at all. The order recites that the District Magistrate is satisfied that it is necessary to detain the petitioner with a view to preventing him ‘from acting in a manner prejudicial to the security of the State. That the satisfaction was based on materials is clarified by the order of the Government confirming the detention which mentions that the District Magistrate had with his report sent to the Government the grounds on which he made the order as well as other relevant particulars.

The expression ‘acting in any manner’ used in the Act covers a case where the satisfaction of the District Magistrate is that the person, in ‘respect of whom the order is going to be made, is to be prevented from acting in a manner’ prejudicial to the security of the State. The District Magistrate, by using the word ‘a’ instead of word ‘any’ as used in the statute has, therefore, not made an order which is outside the scope of the statute.

The order of detention under s. 3 and the direction under the proviso to s. 8 were passed by the District Magistrate on 9th May, out the petitioner was actually detained on 22nd May. The District Magistrate committed a mistake by reterning to the petitioner as a person who “has been detained”, in the direction, but that would not imply that the detention was illegal.

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