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Sufi Mohd. Akbar and ors. Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1960CriLJ223
AppellantSufi Mohd. Akbar and ors.
RespondentState of Jammu and Kashmir and anr.
Cases ReferredInder Singh v. State of Rajasthan
Excerpt:
- .....opinion that they only denote that the bill shall acquire the status or quality of law, in other words become i jaw.it is only after a bill has become law that it can be brought into force. to put it in other words, only a piece of legislation which has acquired the force of law can be brought into force as law. section 31(3) of the constitution act speaks of a bill becoming law, that is to say acquiring the force of law. it does not deal with the question of bringing that jaw into force. the two things are different. in 82 corpus juris secundum in section 399 dealing with the time of the taking effect of statutes, it is stated as follows:-when a bill has been passed by the legislature and signed by the governor, it becomes a law in the sense that it may not be changed or modified by.....
Judgment:
ORDER

K.V. Gopalakrishnan Nair, J.

1. This is a petition asking for writs of Habeas Corpus, prohibition and certiorari.

2. The petitioners who are eight in number are some of the persons against whom a prelimi- nary inquiry under Chapter XVIII of the Code of Criminal Procedure, 1989, is being held by the second respondent, in respect of offences punishable Under Sections 121-A and 120-B of the Ranbir P.O. read with Rule 32 of the Jammu and Kashmir Security Rules and the said Rule 32. Some of the accused persons raised a contention before the committing Magistrate that the Criminal Procedure Code Amendment Act), 1956, (Act No. XLII of 1956) was in force in the State and that the inquiry should, therefore, be held in accordance with. its provisions.

The committing Magistrate by his order dated 7-2-1959 overruled the contention holding that Act XLII of 1956 has not come into force. The petitioners allege that they are aggrieved by that order. They say that by virtue of Sub-section (3) of Section 31 of the Jammu and Kashmir Constitution Act 1996, Act XLII of 1956 came into force on the date it was published in the Gazette after having received the assent of tile Sadar-i-Riyasat. The proceedings taken by the committing Magistrate on the basis that Act XLII of 1956 is not in force are therefore without jurisdiction and liable to be quashed on certiorari, A writ of prohibition is also asked for to restrain the Magistrate from proceeding with the inquiry. The petitioners also claim a writ of Habeas Corpus because they are being proceeded against and detained otherwise then in accordance with the procedure established by law.

3. The State of Jammu and Kashmir which is the first respondent opposes the petition on the ground that it is wholly devoid of merit. The order of the second respondent holding that Act XLII of 19.56 is not in force is absolutely correct. It is pointed out that Sub-section (2) of Section 1 of Act XLII of 1956 expressly provides that the Act shall come into force only on such date as the Government may by Notification in the Government Gazette appoint. No such Notification having been issued by the Government, it is totally wrong to contend that Act XLII of 1956 has come into force. It is also urged that Sub-section (3) of Section 31 of the Jammu and Kashmir Constitution Act, 1996, has no bearing on the question and that it does not at all deal with the subject of bringing an Act into operation.

4. It is common ground that Act XLII of 1956 received the assent of the Sadar-i-Riyasat on 6th November 1956 and was published in the Government Gazette on 29th December 1956, Sub-section (2) of Section 1 of that Act reads:-

It shall come into force on such date as the Government may, by Notification in the Government Gazette, appoint.

It is admitted that the Government has not yet Issued any Notification appointing the date for the coming into force of the Act. This circumstance alone would ordinarily be sufficient for holding that Act XLII of 1956 has not come into force But the petitioners have strenuously contended that Sub-section (2) of Section 1 of Act XLII of 1956 is void as it is clearly opposed to the mandatory provisions contained in Sub-section (3) of Section 31 of the Jammu and Kashmir Constitution Act, 1996. It is, therefore, necessary to examine the provisions of Section 31(3) of the Constitution Act. That provision as it stood at the time of the passing of Act XLII of 1956 reads as under:-

A Bill which is assented to under the last preceding Sub-section shall be published in the Gazette in Urdu and English and shall become an Act and have the force of law as soon as it is published in ether of the aforesaid languages.

The case of the petitioners is based entirely on the interpretation of this provision. The first part of that argument is that the words 'shall have the force of law' in Section 31(3) mean nothing more and nothing less then 'shall come into force.' The second part of the argument runs; Section 31(3) of the Constitution Act has enacted in Mandatory terms that a Bill assented to by the Sadar-i-Riyasat and published in the Gazette shall come into force on such publication. The Constitution Act is tile paramount law.

Any legislation undertaken after the coming into force of the Constitution Act has necessarily to comply with its provisions. If any provision of a subsequent enactment is in any manner repugnant to any provision of die Constitution Act, the former will be void. Sub-Section (2) of Section 1 of Act XLII of 1956 which postpones tile coming into force of that Act to a date to be notified by the Government violates the imperative provisions of Section 31(3) of the Constitution Act. Section 1(2) of Act XLII of 1956 is, therefore, void and consequently Act XLII of 1956 has to be held to have come into force as soon as it was published in the Government Gazette after being assented to by the Sadar-i-Riyasat. We have to examine the validity of these arguments.

5. The argument that the expression 'shall have the force of law' is synonymous with they expression 'shall come into force' appears to Us to be very difficult to accept. The expression 'shall come into force' is a very familiar one. It is to be found in every Statute which contains a 'commencement Section.' The number of such Statute is legion. In every oile of those statutes the expression 'shall come into force' has been invariably employed to indicate the coming into effective operation of the law. The expression was uniformly used for the same purpose and in the same sense in many statutes of this State passed before the year 1996. Thus the expression ''shall come into force' was well understood and well established at the time of the passing of the Constitution Act 1996 Indeed, the Constitution Act itself has employed that expression in Section 2 which reads.

This Act shall extend to the whole of the Jammu and Kashmir State and shall come into force at once.

We find the expression used in Sub-Section (4) of Section 31 itself which is as under:-

In all the Regulations in force in the State on the date on which this Act comes into force and in the rules, orders Proclamations and Notifications issued under such Regulations, the word 'Act' shall, unless the context otherwise requires be substituted for the word 'Regulation.

The question is why should an entirely different A expression have been employed in Sub-section (3) of Section 81, if the intention was to convey the same meaning. We are unable to find a reasonable answer to this. We are of the view that the expression 'shall come into force' was intended to convey a meaning different from that conveyed by the words shall have the force of law.' It will be wrong to assume that the Legislature employed expressions or such wide differing import to express one and the same intention. The correct rule of interpretation is that a change of language suggests a change of intention. , .

We have to give the words ' shall have the force of law that natural and ordinary meaning It is not permissible to construe the words of a statute by giving them an unnatural and artificial meaning. We have to gather the intention of the Legislature primarily from the words employed in the statute. It is wrong and hazardous to hunt after the supposed intention and to strain the express words of the statute in an effort to make them somehow subserve the supposed intention. i Giving the words 'shall have the force of law occurring in Section 31(3) of the Constitution Act that plain and natural meaning, we are of the opinion that they only denote that the Bill shall acquire the status or quality of law, in other words become I Jaw.

It is only after a Bill has become law that it can be brought into force. To put it in other words, only a piece of legislation which has acquired the force of law can be brought into force as law. Section 31(3) of the Constitution Act speaks of a Bill becoming law, that is to say acquiring the force of law. It does not deal with the question of bringing that Jaw into force. The two things are different. In 82 Corpus Juris Secundum in Section 399 dealing with the time of the taking effect of statutes, it is stated as follows:-

When a bill has been passed by the Legislature and signed by the governor, it becomes a law in the sense that it may not be changed or modified by the courts and a statute may become a Jaw on passage, even though by its own provisions its effective date is postponed. In this connection it has been said that 'passage' of an Act is understood to refer to the time when it is stamped with the requisite approval by the legislature and the chief executive, but that the going into effect of a bill refers to its becoming actually operative as existing law.

It has been said that a statute may have a potential existence, although it will not go into operation until a future time and that until the time arrives when it is to take effect and be in force, a statute which has been passed by both houses of the legislature and approved by the executive has no force whatever for any purpose. Before that time no rights may be acquired under it and no one is bound to regulate his conduct according to its terms and all acts purporting to have been done under it prior to that time are void.' This is sufficient authority for the proposition that an enactment which has become a valid law may not yet come into force until the day appointed by the Legislature for that purpose. It, therefore, appears to us to be idle to contend that the two statements, namely. (1) that a Bill shall become an Act and have the force of law, and (2) that the Act shall come into force, have one and tile same meaning.

6. We may notice at this stage an argument advanced on the side of the petitioners that it was unnecessary for the Legislature to have said that Bill shall become an Act and also that the Bill shall have the force of law, if the intention was to convey the same meaning by each of these expressions. We do not consider this argument can in any manner affect the ordinary grammatical meaning of the words of Section 31(3) or In any way alter the clear intention expressed in that provision. May be, the Legislature wanted to emphasize this fact that the legislation shall be regarded as a law.

It also appears to us that the Legislature wanted to indicate clearly that a Bill duly passed by the Legislature Assembly, assented to by the Head of the State and published in the Gazette shall be an Act. This was perhaps considered necessary because the laws of the State were previously known as Regulations. They wanted to provide expressly that from the date of the coming into force of the Constitution Act the laws passed by the Legislature will be known as Acts and not as Regulations as theretofore. A reference to Sub-section (4) of Section 31 supports this view. Be that as it may, the fact remains that we are unable to agree that Section 31(3) makes provision for the coming into force of an Act.

7. The petitioners appear to have realized that the mere contention that the words ''shall have the force of law' mean the same thing as 'shall come into force,' is not sufficient to ensure that success for the. position then will be that Sub-section (2) of Section 1 of Act XLII of 1956 will also have validly come into force and that being the only provision relating to the date of the commencement of the Act may have to be given effect so tar as that; mutter is concerned. The effort of the petitioners has, therefore, been to put Sub-section (2) of Section 1 of the Act XHI of 1956 completely out of that way.

They therefore urge that the Section is void, being repugnant to Section 31(3) of the Constitution Act. According to them Section 31(3) imposes a prohibition on the legislature to appoint a date of its own choice for the coming into force of an Act. It matters not whether such date is specified by the Legislature itself in the Act or whether it '3 left by the Legislature to be fixed by an outside authority to whom it entrusts the matter. Section 31 of the Constitution Act which is the paramount law on, the subject has uhalterably fixed the time when an Act is to come into force.

A Legislature which is bound to function within the limits of the Constitution cannot, therefore, enact a different time or date for the coming into force of an Act. This line of argument seen to us to be not really available to the petitioner1? in view of what we have already stated regarding the true meaning of the words 'shall have the force of law' occurring in Section 31(3) of the Constitution Act. But as the argument has been pressed upon us by the petitioners with great vigour and insistence, we propose to deal with it at some length.

8. The argument is based entirely on the presumption that Section 31(3) of the Constitution Act contains a legislative prohibition of the kind mentioned above. We are, however, unable to find any such prohibition in the express words of Section 31(3); nor do we find it reasonably possible to read such a prohibition by implication into the provisions of Section 31(3), without doing utmost violence to the language of that Section and without flagrantly violating the well-established canons of interpretation. Not only this, we shall have, in order to accede to the argument advanced, practically to enact a new Section 31(3) in the guise of interpreting that Section. This we cannot do.

We have already stated that the words- 'shall have the force of law' cannot be understood as meaning 'shall come into force'. We have only to add that the form in which Section 31(3) is cast is not appropriate for enacting a legislative prohibition. Nor is the setting of Section 31(3) the appropriate place where one can reasonably expect such a constitutional restriction on legislative power to be inserted. Section 31 mainly deals with what may be describe as legislative procedure. The powers of the Legislature are dealt with in Section 23 of the Constitution Act.

A provision enacting a limitation on legislative power will be inserted at the place where the powers of the Legislature are dealt with. Such a provision would not have been relegated to a Section dealing with legislative procedure. Furthermore, a legislative prohibition will be couched in clear and unambiguous terms and often the language of prohibition would be employed. Nether the words used in Section 31(3) nor the form in which it is couched nor the place where it occurs seems to accord with the contention of the petitioners that it embodies' the legislative prohibition already referred to.

If a restriction on the legislative powers was really intended, it would not have been expressed in such an indirect and covert manner and in such inappropriate and ill-chosen words. We are also of the view that there was no good reason for the framers of the Constitution Act to prohibit the natural and ordinary right of the Legislature to enact as to when an Act shall be brought into force. Such power was exercised by every Legislature in India including the Legislature of the State of Jammu and Kashmir, before the Constitution Act of 1999 was passed. That has been the legislative practice obtaining in other countries also. For instance, Crai-es in his Statute. Law (5th ed.) at page 354 says;

It is common practice to specify in Acts of Parliament the day on which the Act is to come into operation. There is often an 'appointed day' clause in an Act, as for instance in the Local Government Act, 1888, Section 109 '. . . .the appointed day for the purpose of this Act shall...be the first of April next ...or such other day earlier or later as the Local Government Board may appoint'.' (As to the advantage of such a clause, see Carr. Delegated Legislation, pp. 10-12.)

9. In the Queen v. Buraji, ILR 4 Cal 172 at p. 182, Lord Sellborne observed thus:-

Where plenary power of legislation exists as to particular subjects, whether in an Imperial Or in a Provincial Legislature, they may (in that Lordships' judgment) be well exercised, ether absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion entrusted rjy the Legislators to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of legislative powers which it from, time to time conferred.

It will thus be seen that not only in India but also in England the Legislature has been exercising for long years the power of enacting as to the time when its laws shall come into force. Almost every legislature in India has also been passing what is known as conditional legislation. This legislative practice has been adopted for long years in this State. There appears to have been no reason for the frarmers of the Constitution Act of 1996 to depart from this long established and convenient legislative practice. And if a departure was really Intended, a clear provision to that effect would have been prominently inserted in the Act in view of long practice which had obtained previously.

10. It is of some importance to note that even after the coming into force of the Constitution Act of 1996 many an enactment passed by the State Legislature has embodied a commencement clause specifying a date for the coming in to force of the Act. In a number of cases the State Legislature had even after 1996 entrusted it to the Government to appoint a date for the coming into force of the Acts. This clearly shows that the State Legislating always understood that they had the power to appoint a date for the coming into force of the Acts passed by them. This consistent conduct on the part of the Legislature strongly militates against the contention of the petitioners that Section 31(3) of the Constitution Act of 1996 prohibited by the Legislature from appointing a date of that own choice for the coming into force of the laws passed by them.

We may also mention in this context that it is J legitimate to presume that a Legislature well under- stands its powers and functions. On the other hand it is not correct to presume that the Legislature has been ignorant of its powers and limitations and that for many years it passed legislation after legislation without having the necessary power to do so. There; is a presumption in favour of the constitutionality of a statute and the burden is on the person who challenges it as unconstitutional to establish his case. We have also to bear in mind that where two interpretations are equally possible, the one which is in favour of the validity of an Act must be preferred. ,

11. Considering every aspect of the matter, we find ourselves wholly unable to accede to the contention of the petitioners that Section 31(3) of the Constitution Act prohibits the State Legislators from appointing a date for the coming into force of an Act or from leaving it to the Government to appoint such a day by Notification in the Government Gazette. It follows that Sub-section (E) of Section 1 of Act XLII of 1956 is not void as being repugnant to any provision of the Constitution Act of 1996.

12. The petitioners have not contended that Section 1(2) of Act XLH of 1956 is an unconstitutional delegation of legislative power, we may, however, clearly state here that it is only a case of conditional legislation which is valid in law. We need in this connection refer only to the decision of the Supreme Court in Inder Singh v. State of Rajasthan : [1957]1SCR605 .

13. It follows from the foregoing that the order of the committing Magistrate dated 7-2-19591 which is challenged by the petitioners is correct. The writ petition which is based on (he alleged incorrectness of the aforesaid order of the committing Magistrate is, therefore, devoid of merit. The petitioners are lawfully detained and dealt with according to the procedure established by law. We do not find any excess of jurisdiction in this case to justify the issue of a writ of prohibition to restrain the committing Magistrate from proceeding with the preliminary inquiry; nor do we see any ground for granting a writ of certiorari in favour of the petitioners. As we already indicated, there is no ground for saying that the petitioners are held in custody without legal jurisdiction or otherwise then in accordance with the procedure established by law. A writ of Habeas Corpus cannot, therefore, issue.

14. In the result the petition is dismissed,

J.N. Wazir, C.J.

I agree.


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