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TMI Blog1959 (3) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was conceded on his behalf that the points raised by him against the validity of the Act had been decided by Mr. Justice Kilam and that, in view of the said decision, the appellant could not usefully urge anything more before the District Court. The learned District Judge who was bound by the decision of Mr. Justice Kilam applied it to the suit before him and held that the Act was valid and that the appellant was not entitled to the two declarations claimed by him. In the result the appellant's suit was dismissed. 4. Against this decree the appellant preferred an appeal in the High Court of Jammu Kashmir (Civil Appeal No. 4 of 2009). Maghar Singh whose suit had been dismissed by Mr. Justice Kilam had also preferred an appeal (No. 29 of 2008) before the High Court. The two appeals were heard together by a Division Bench of the High Court which held that the Act was valid and that the appellants were not entitled to any declaration claimed by them. Both the appeals were accordingly dismissed. 5. Against the decree passed by the High Court dismissing his appeal the appellant applied to the High Court for leave to appeal to this Court. The said application was, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9). From the preamble to this Constitution it appears that, before its promulgation, the Maharaja had issued a proclamation on February 11, 1939, in which he had announced his decision as to the further steps to be taken to enable his subjects to make orderly progress in the direction of attaining the ideal of active co-operation between the executive and the Legislature of the State in ministering to the maximum happiness of the people. In accordance with this desire the text of the Constitution contained in Regulation 1 of 1991 was thoroughly overhauled and an attempt was made to bring the amended text into line with that of similar Constitutions of its type. This Constitution is divided into six parts and includes 78 sections. Part 1 is introductory. Part 2 deals with the executive; Part 3 with the Legislature; Part 4 with the Judicature; Part 5 contains miscellaneous provisions; and Part 6 provides for repeal and saving and includes transitional provisions. It is significant that s. 5 of this Act, like s. 3 of the earlier Regulation, recognises and preserves all the inherent powers of His Highness, while s. 4 provides that the State was to be governed by and in the name of His ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, they would soon knock at the doors of Srinagar itself. This act of aggression set in motion a chain of political events which ultimately changed the history and political constitution of Kashmir with unexpected speed. 10. On October 25, 1947, the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion. By the First Clause of the Instrument the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor-General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes only of the Dominion, exercise in relation to the State of Jammu Kashmir such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on August 15, 1947. 11. We may usefully refer to some other relevant clauses of this Instrument. By clause 3 the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this proclamation was issued the Maharaja had already appointed Sheikh Mohammad Abdullah who was then the popular leader of the people as the head of the emergency administration. By the proclamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties and functions pending the formation of a fully democratic constitution. Clause 1 of the proclamation provides for the composition of the Ministry, whereas by clause 2 the Prime Minister and other ministers are required to function as a cabinet and act on the principle of joint responsibility. A Dewan appointed by the Maharaja is to be a member of the Cabinet. Clause 4 provided that the Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National Assembly based on adult franchise having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be proportionate to the population of that area. Clause 5 then lays down that the Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On November 25, 1949, Yuvaraj Karan Singh issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constitution Assembly of India shall, in so far as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between the State and the contemplated Union of India and shall be enforced in the State by him, his heirs and successors in accordance with the tenor of its provisions. He also declared that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State. The preamble to this proclamation shows that it was based on the conviction that the best interests of the State required that the constitutional relationship established between the State and the Dominion of India should be continued as between the State and the contemplated Union of India; and it refers to the fact that the Constituent Assembly of India which had framed the Constitution of India included the duly appointed representatives of the State and that the said Constitution provided a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contemplated that a committee would be appointed to settle the details and other matters incidental to the said agricultural plan. 17. It was presumably in pursuance of this plan adopted by the interim Cabinet that the Act was promulgated by Yuvaraj Karan Singh on October 17, 1950. The preamble to the Act shows that it was promulgated because no lasting improvement in agricultural production and efficiency was possible without the removal of the intermediaries between the tiller of the soil and the State, and so, for the purpose of improving agricultural production, it was expedient to provide for the abolition of such proprietors as own big landed estates and to transfer the land held by them to the actual tiller. The Yuvaraj enacted the law in exercise of the powers vested in him under s. 5 of the Constitution Act of 1996 and the proclamation issued by Maharaja Hari Singh on June 20, 1949. The Act consists of 47 sections and purports to carry out its policy of improving the agricultural production of the State by providing for the extinction of the proprietors' titles and the transfer of the lands to the tillers, and by setting up a self-contained machinery for the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the said Constituent Assembly would be elected and makes provisions for the holding of the said elections. It also authorised the Constituent Assembly to frame its own agenda and make rules for regulating its procedure and the conduct of its business. The preamble to this proclamation shows that the Yuvaraj was satisfied that it was the general desire of the people that a Constituent Assembly should be brought into being for the purpose of framing a Constitution for the State and that it was commonly felt that the convening of the said Assembly could no longer be delayed without detriment to the future well-being of the State. The Yuvaraj also felt no doubt that the proclamation issued by the Maharaja on March 5, 1948, in regard to the convening of the national assembly as per cls. 4 to 6 no longer met the requirements of the situation in the State. Thus this proclamation was intended to meet expeditiously the popular demand for the framing of a democratic constitution; and it indicates that a decisive stage had been reached in the political history of the State. 20. In accordance with this proclamation a Constituent Assembly was elected and it framed the Constitution for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that at the time when Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20, 1949, he was himself no more than a constitutional monarch and as such he could convey to Yuvaraj Karan Singh no higher powers. Let us first deal with this argument. Prior to the passing of the Independence Act, 1947, the sovereignty of Maharaja Hari Singh over the State of Jammu Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government. It cannot be disputed that so far as the internal administration and governance of the State were concerned Maharaja Hari Singh, like his predecessors, was an absolute monarch; and that all powers legislative, executive and judicial in relation to his State and its governance inherently vested in him. This position has been emphatically brought out by s. 3 of Regulation 1 of 1991 (1934). Though by this Regulation Maharaja Hari Singh gave effect to his intention to provide for the association of his subjects in the matter of legislation and administration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y s. 72 expressly preserves the inherent power and prerogative of His Highness. Thus there can be no doubt that though this Act marked the second step taken by His Highness in actively associating his subjects with the administration of the State, it did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Sabha. So far as the said powers are concerned, the constitutional position under this Act is substantially the same as under the earlier Act. 25. It is contended by Mr. Chatterjee that the prerogative rights which are preserved by Sections 5 and 72 of this Act represent only such rights as had not been entrusted to the Praja Sabha; and in support of this contention he referred us to the observation made by Dicey that the discretionary authority of the Crown originates generally not in Act of Parliament, but in the prerogative - a term which has caused more perplexity to students than any other expression referring to the constitution. The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Instrument of Accession itself; and clause 6 of the Instrument clearly and expressly recognised the continuance of the sovereignty of His Highness in and over his State. We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State. 27. There is one more argument which has been urged before us on the question of Maharaja Hari Singh's powers. It is said that when Maharaja Hari Singh issued his proclamation on March 5, 1948, replacing the emergency administration by a popular interim government headed by Sheikh Mohammad Abdullah and constituting a Council of Ministers who were to function as a Cabinet and act on the principle of joint responsibility, he virtually introduced a popular democratic government in the State, surrendered his sovereign rights, and became a constitutional monarch. There is no substance in this argument. The proclamation merely shows that, under pressure of public opinion and as a result of the difficult and delicate problem raised by the tribal raid, the Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative functions or even create new bodies conferring on them power to make laws ; and the learned Judge added that whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it . In his judgment Mukherjea, J., has also made similar observations after quoting the words of Sri Edward Coke in regard to the transcendent and absolute power and jurisdiction of Parliament . What is true of the British Parliament would be truer about an absolute and despotic monarch, the exercise of whose paramount power as a sovereign is not subject to any popular and legislative control. If that be the true position, the proclamation issued by Maharaja Hari Singh authorising Yuvaraj Karan Singh to exercise all his powers would clothe him with all such powers and he would be in the same position as his father so long as the proclamation stood. 29. Besides, it would be permissible to observe that though the proclamation purports to have been issued on the ground that M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had become merely a constitutional monarch of the State without any legislative authority or powers. Indeed it is this part of the case on which Mr. Chatterjee placed considerable emphasis. In this connection, it would be relevant to recall that by the Constitution Order 10, an addition to the provisions of Art. 1 and Art. 370, certain other provisions of the Constitution were made applicable to the State with exceptions and modifications as specified in the Second Schedule. Articles 245, 254 and 255 as will as Art. 246 as modified from Pt. XI of the Constitution were applied to the State. Similarly from Pt. XIX Art. 366 was applied, and from Pt. XXI Arts. 370 and 385 were applied. In this connection it is also necessary to bear in mind that Pt. VI which deals with the States in Pt. A of the First Schedule has not been applied, nor has Pt. VII which consisted of Art. 238 been applied. Art. 238 provides for the application of provisions of Pt. VI to States in Pt. B of the First Schedule. Schedule Seven which consists of the three Legislative Lists has also not been applied. It is thus clear that though by the application of Art. 1 the State became a part of the territory of India a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify : Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. 34. Clause (1)(b) of this Article deals with the legislative power of the Parliament to make laws for the State; and it prescribes limitation in that behalf. Under paragraph (1) of sub-clause (b) of clause (1) Parliament has power to make laws for the State in respect of matters in the Union List and the Concurrent List whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall cease to be operative or shall be operative only with specified exceptions or modifications; but this power can be exercised by the President only if the Constituent Assembly of the State makes recommendation in that behalf. Thus the proviso to clause (3) also emphasises the importance which was attached to the final decision of the Constitution Assembly of Kashmir in regard to the relevant matters covered by Art. 370. 38. The appellant contends that the scheme of this Article clearly shows that the person who would be recognised by the President as the Maharaja of Jammu Kashmir was treated as no more than a constitutional Ruler of the State. In regard to matters covered by this Article he could not function or decide by himself and in his own discretion. The consultation contemplated by this Article had to be with the Maharaja acting on the advice of the Council of Ministers and the concurrence prescribed by it had to be similarly obtained and given, and that brings out the limitations on the powers of the Maharaja. It is also urged that the final decision in these matters has been deliberately left to the Constituent Assembly which was going to be convened for the fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession. It would therefore be reasonable to assume that the application of Art. 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State. In our opinion, the appellant's contention based on this Article must therefore be rejected. 41. The application of Arts. 245, 254 and 255, and of Art. 246 as modified, does not seem to have any bearing on the question of the authority and powers of the Ruler of the State. Their application merely serves to provide for the legislative powers of the Parliament to make laws in respect of matters covered by Art. 370. Incidentally we may point out that the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to rely on the rule of construction set out in Maxwell that a thing which is within the letter of a statute unless it is also the real intention of the Legislature (Maxwell on Interpretation of Statutes , 10th Ed., p. 17.). It is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner. The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed. 44. It is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensation. For one thing s. 26 of the Act did contemplate the payment of compensation. Besides, as the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the Constitution because it is inconsistent with the two earlier Acts, No. 10 of 1990 and No. 4 of 1977. It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers. In our opinion the argument based on the provisions of Art. 254 must he rejected on the preliminary ground that it is impossible to invoke the assistance of this Article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under Art. 254(1) if there is repugnancy between any provision of a law made by the Legislature of a State and any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of clause (2) of Art. 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole Article would in substance be inapp ..... 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