A law enacted under a Constitution Act does not lose its vitality and would continue even though there may be repeal of parts of the Constitution Act under which it was enacted so long as the law is not inconsistent with the Constitution Act as it emerges after the amendment and repeal of certain provisions thereof.

Headnote:
ENEMY AGENTS ORDINANCE - CONSTITUTIONALITY - ARTICLE 14 - LEGISLATIVE COMPETENCE - REPEAL - LAPSING - INCONSISTENCY WITH CONSTITUTIONAL PROVISIONS - ARTICLE 20(1) AND 22(1) - JURISDICTION OF SPECIAL JUDGE - [ENEMY AGENTS ORDINANCE, NO. VIII OF S. 2005, SS. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 - JAMMU AND KASHMIR CONSTITUTION ACT, S. 1996, S. 5 - JAMMU AND KASHMIR GENERAL CLAUSES ACT, NO. XX OF S. 1977, S. 6(B) - CONSTITUTION OF INDIA, ARTS. 14, 20(1), 22(1), 352]
Fact of the Case:

Appellants were being prosecuted before a Special Court constituted under the Enemy Agents Ordinance, No. VIII of S. 2005, for offenses under S. 3 of the Ordinance, Ss. 3, 4, and 5 of the Explosive Substances Act, No. VI of 1908, S. 120-B of the Penal Code, and S. 29 of the Public Security Act read with Rr. 28 and 32 of the Rules thereunder. The incidents out of which this prosecution arose took place on June 27 and 28, 1957.
Finding of the Court:

1. The Ordinance was not discriminatory and, therefore, not violative of Art. 14 of the Constitution. 2. His Highness had legislative competence to promulgate the Ordinance under S. 5 of the Constitution Act, as the matters covered by the Ordinance were not surrendered to the Government of India in the Instrument of Accession. 3. The Ordinance did not come to an end on the repeal of S. 5 of the Constitution Act, as it was saved by S. 6(b) of the Jammu and Kashmir General Clauses Act. 4. The Ordinance did not lapse as the conditions in the State had changed since 1949, as it was a permanent piece of legislation that could only be brought to an end by repeal by competent authority. 5. The Ordinance was not unconstitutional as it was not inconsistent with Art. 352 and the subsequent Articles in Part XVIII of the Constitution.
Issues: 1. Whether the Ordinance was discriminatory and violative of Art. 14 of the Constitution. 2. Whether His Highness had legislative competence to promulgate the Ordinance under S. 5 of the Constitution Act. 3. Whether the Ordinance came to an end on the repeal of S. 5 of the Constitution Act. 4. Whether the Ordinance lapsed as the conditions in the State had changed since 1949. 5. Whether the Ordinance was unconstitutional as it was inconsistent with Art. 352 and the subsequent Articles in Part XVIII of the Constitution.
Ratio Decidendi: 1. The Ordinance was not discriminatory as it created a reasonable classification of persons for the purpose of the Ordinance, and the classification had a rational relation to the object sought to be achieved by the Ordinance. 2. His Highness had legislative competence to promulgate the Ordinance as the matters covered by the Ordinance were not surrendered to the Government of India in the Instrument of Accession. 3. The Ordinance did not come to an end on the repeal of S. 5 of the Constitution Act, as it was saved by S. 6(b) of the Jammu and Kashmir General Clauses Act. 4. The Ordinance did not lapse as the conditions in the State had changed since 1949, as it was a permanent piece of legislation that could only be brought to an end by repeal by competent authority. 5. The Ordinance was not unconstitutional as it was not inconsistent with Art. 352 and the subsequent Articles in Part XVIII of the Constitution.
Final Decision: The appeal was dismissed.

Judgment

WANCHOO, J. : This appeal, on a certificate granted under Art. 132 of the Constitution of India (hereinafter called the Constitution) by the High Court of Jammu and Kashmir, raises the constitutionality of the Enemy Agents Ordinance, No. VIII of S. 2005 (hereinafter called the Ordinance), promulgated by His Highness under S. 5 of the Jammu and Kashmir Constitution Act, S. 1996, (hereinafter called the Constitution Act). The appellants also made an application under Art. 132(3) of the Constitution to this Court for permission to urge other grounds taken by them in the High Court besides those relating to the interpretation of the Constitution. We intimated at the outset of the arguments that this application was being allowed and learned counsel for the appellants was permitted to make his submissions on all points raised in the High Court.

2. The appellants are being prosecuted before a Special Court constituted under the Ordinance for offences under S. 3 of the Ordinance, Ss. 3, 4 and 5 of the Explosive Substances Act, No. VI of 1908, S. 120-B of the Penal Code and S. 29 of the Public Security Act read with Rr. 28 and 32 of the Rules thereunder. The incidents out of which this prosecution arose took place on June 27 and 28, 1957.

3. The circumstances in which the Ordinance came to be passed were these: Outside raiders began attacking Kashmir on October 22, 1947. The State acceded to India On October 26, 1947. It appears that the enemy Agents Ordinance, No. XIX of S. 2004 was enacted soon after in January 1948. There was "cease-fire" on January 1, 1949, and the raids came to an end. This was followed by the present Ordinance which became law on January 24, 1949. The preamble to the Ordinance says that an emergency had arisen as a result of 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 persons committing certain offences with intent to aid the enemy and as it was necessary to amend Ordinance XIX of S. 2004, therefore, the Ordinance was passed consolidating the law and repealing the earlier Ordinance.

4. The main contentions of the appellants in the High Court were that the Ordinance was unconstitutional and void by reason of the violation of Art. 14 of the Constitution and that His Highness had no legislative competence to enact it and that in any case it came to an end when S. 5 of the Constitution Act was repealed in 1951.

5. The High Court was of the view that there was a reasonable classification and that the classification was founded on an intelligible differentia which distinguished persons or things that were grouped together from those left out of the group and the differentia had a rational relation with the object sought to be achieved by the Ordinance. It, therefore, held that the Ordinance was not hit by Art. 14. It was further of the view that His Highness had legislative competence to promulgate the Ordinance when he did so and that when certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its powers to legislate even on these subjects so long as the State law was not repugnant to any law made by the Central Legislature, thus holding that there was concurrent power in the State of legislate even on the subjects transferred to the government of India. Finally, the High Court held that the repeal of S. 5 of the Constitution Act did not result in the Ordinance coming to an end, as S. 6 of the Jammu and Kashmir General Clauses Act saved it. It, therefore, dismissed the writ petition filed by the appellants.

6. The main contentions of the appellants before us are these:

1. The Ordinance is unconstitutional as it violates Art. 14 of the Constitution.

2. There was no legislative competence in His Highness to issue the Ordinance under S. 5 of the Constitution Act, as His Highness had executed the Instrument of Accession on October 26, 1947, surrendering his powers rega

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1959 Supreme(SC) 154

Cases Referred (1)