This is a petition under S. 103 of the Constitution of Jammu and Kashmir and Art. 32 (2-A) of the Constitution of India filed by Rahman Shagoo, Ghulam Ganai, Sidiq Sheikh, Sheer Abdul Aziz, Fazal Din Abdul Hamid Kara, Peerzada Ali Shah, Mohd. Amin Nehvi, Ghulam Mohiuddin Zargar at present in Judicial lock-up Central Jail Srinagar praying for a writ in the nature of mandamus to the State of Jammu and Kashmir not to enforce the Enemy Agents Ordinance being void against the petitioners, or an order in the nature of prohibition prohibiting the Special Judge from proceeding with the prosecution of the petitioners in cases, F. I. R. 108 and F. I. R. 53 of 1957, for a writ of certiorari quashing the proceedings in the Court of the Special Judge in the aforesaid cases and lastly for a writ in the nature of habeas corpus for setting the petitioners at liberty forthwith.

(2) The petitioners allege that they are being prosecuted for offences under S. 3 of the Enemy Agents Ordinance, Ss. 3, 4 and 5 of the Explosive Substances Act and S. 120-B of the Ranbir Penal Code, S. 29 of the Public Security Act and Rules 28/32 of the Public Security Rules in the court of Special Judge, Srinagar, who has been appointed as such by Notification No. 1 of 1st October, 1957, by the Government of Jammu and Kashmir in exercise of powers under S. 5 (1) of the Enemy Agents Ordinance.

(3) The petitioners challenge the Enemy Agents Ordinance as being ultra vires of S. 5 of the Constitution of Jammu and Kashmir and as offending against Art. 246 of, the Constitution of India as applied to the State. It is stated that the aforesaid Ordinance, being of the nature of an emergency provision, is also ultra vires of the legislature of the State inasmuch as it offends against Art 352 and other allied Articles of the Constitution of India as applied to the State. Lastly they impugn the Ordinance on the ground that its provisions violate Art. 14 of the Constitution of India as applied to the State of Jammu and Kashmir and are void under Art. 13 of the said Constitution.

(4) The petition is resisted by the State on the ground that the Enemy Agents Ordinance under which the Special Judge is trying the petitioners is intra vires and a valid piece of legislation and that the provisions contained in the Ordinance did not violate Art. 14 of the Constitution of India as applied to the State and are not void under Art 13 of the said Constitution.

(5, The Enemy Agents Ordinance was promulgated by his Highness under S. 5 of the Jammu and Kashmir Constitution Act, 1996, in S. 2005 which corresponds to 1949 A. D. At the time when the ordinance was promulgated, S.5 of the Constitution of Jammu and Kashmir Act, 1996, was on the I statute book and His Highness had the power to make the ordinance.

(6) The counsel appearing on behalf of the petitioners argued that the Jammu and Kashmir State-acceded to the Dominion of India by virtue of the Maharaja having signed the instrument of accession in the year 1947 and he ceded to the Dominion three subjects, namely defence, foreign affairs and communications. After the accession, His Highness had no power to legislate upon subjects pertaining to defence and as the Enemy Agents Ordinance was a defence subject, His Highness had no power to promulgate an ordinance pertaining to that subject after he had signed the Instrument of Accession.

(7) The first question for determination, there~ fore, is whether His Highness was competent to promulgate the ordinance.

(8) The Jammu and Kashmir Constitution Act was passed in S. year 1996. Under S. 4 His Highness-exercised all powers appertaining to the Government of Jammu and Kashmir and S. 5 of the Constitution Act declared the inherent powers of His Highness in executive, judicial and legislative matters. At the time when the ordinance was passed S. 5 was on the statute book and His Highness, therefore, had plenary powers to promulgate the Ordinance.

(9) The question whether after accession Hi