Janki Naxh Wazir, C.J.
1. This is a petition linger Section 103 of the Constitution of Jammu and Kashmir and Article 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. Rule 108 and F. I. Rule 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 Section 3 of the Enemy Agents Ordinance, Sections 3, 4 and 5 of the Explosive Substances Act and Section 120-B of the Ranbir Penal Code, Section 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 Section 5 (1) of the Enemy Agents Ordinance.
3. The petitioners challenge the Enemy Agents Ordinance as being ultra vires of Section 5 of the Constitution of Jammu and Kashmir and as offending against Article 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 Article 352 and other allied Articles of the Constitution of India as applied to the State. Lastly they impugn die Ordinance on the ground that its provisions violate Article 14 of the Constitution of India as applied to the State of Jammu and Kashmir and are void under Article 13 of the said Constitution.
4. The petition is resisted by the State on the ground that the Enemy Agents Ordinance under which the petitioners are being tried by the Special Judge is intra vires and a valid piece of legislation and that the provisions contained in the Ordinance do not violate Article 14 of the Constitution of India as applied to the State and are not void under Article 13 of the said Constitution.
5. The Enemy Agents Ordinance was promulgated by his Highness under Section 5 of the Jammu and Kashmir Constitution Act, 1996, in Section 2005 which corresponds to 1949 A. D. At the time when the ordinance was promulgated, Section 5 of the Constitution of Jammu and Kashmir Act, 1996, was on the 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, therefore, is whether His Highness was competent to promulgate the ordinance.
8. The Jammu and Kashmir Constitution Act was passed in S. year 1998. under Section 4 His Highness exercised all powers appertaining to the Government of Jammu and Kashmir and Section 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 Section 5 was on the statute book and His Highness, therefore, had plenary powers to promulgate the Ordinance.
9. The question whether after accession His Highness had ceded all his powers of legislation with respect to defence has to be examined. The result of the Instrument of Accession was the creation of Legislative power in the Dominion with respect to certain subjects, His Highness retaining the full ambit of that power in himself. This was subject only to this proviso that in case the law made by the Dominion legislature with respect to the ceded subjects and the law made by the ruler came into conflict, the law made by the Dominion legislature prevailed otherwise the legislative power retained by the ruler was of the same magnitude as it was before the Instrument of Accession was executed. 'While examining the Government of India Act, 1935, the language of the section under which the Instrument of Accession was executed and which also laid down the conditions for that instrument may be looked into. The provisions relating to the Dominion provinces on the one hand, and the Rulers of the States on the other, may be compared. under Section 6 of the Government of India Act which was adapted with amendments, the Dominion legislature exercised the authority by virtue of the Instrument of Accession. The exercise of authority by the Dominion legislature was always subject to the terms of the Instrument of Accession and the exercise of authority by the Dominion legislature had always to be for the purposes of the Dominion. The Controlling expression in the above Section 6 is 'for the purposes only of the Dominion.' The Dominion acquired authority by Instrument of Accession and subject to the terms of that instrument.
10. Clause 8 of the Instrument of Accession is one of the essential terms and that term is that the Ruler shall continue to be sovereign as before and therefore the Dominion authority could exercise (jurisdiction subject to the condition that the Ruler continued to be sovereign as before. In a Federal j constitution each State is distinct from the Union.
There must be some purposes of the State as distinct from the purposes of the Union as a whole. The Dominion legislature made laws for the entire Dominion including the State but the purposes must be general and could not be local. After the instrument of accession some powers were certainly given to the Dominion but so far as the States were concerned the powers of the rulers with regard to federal items also remained. This will be clear by going through the provisions of Sections 100 and 101 and 107 Clause (3) of the Government of India Act, 1935. In Section 100 there is a clear ban on the Provincial Legislatures to make laws with respect to any matters enumerated in List I in the Seventh Schedule to the Act whereas in the case of the States no such ban has been imposed. The extent of power to legislate for States is governed by the instrument of accession of that State and limitations contained therein. If it was intended to equate the Provinces with the States then one would have expected the language used in Section 6 to correspond to the language in Sections 99 and 100 of the Government of India Act. Section 6 is concerned with the enumeration of subjects and not with the Lists I and III. Moreover, Section 107 Clause (3) of the Government of India Act is founded on the basis that the Dominion and the States had both power to make laws. Repugnancy as used in Section 107 Clause (3) would come in where both were occupying the same field. If the State-made law on a federal subject and the Dominion also made a law on that subject and there was repugnancy, the provisions of cl. 3 of Section 107 would apply and the Dominion law would prevail and the law of the State to the extent of repugnancy would be void.
11. It is clear, therefore, that after the State acceded to the Union His Highness did not surrender his powers of legislation with respect to the subjects ceded to the Union. His powers to legislate on matters pertaining to the Dominion were subject to the limitation imposed by Section 107 Clause (3) of the Government of India Act i. e. if the law made by His Highness was repugnant to any law made by the Dominion, to the extent of repugnancy it was void.
12. Even if it be assumed, as has been argued by the learned Counsel for the petitioners, that there was complete distribution of power between His Highness and the Dominion after the State acceded to the Dominon and His Highness had surrendered his powers of legislation with respect to three subjects then the question would arise whether the Ordinance would be law with regard to any of the entries enumerated in the instrument of accession.
13. There is always a strong presumption in favour of the constitutionality of an enactment. It should not be presumed that the legislative authority wanted to usurp powers. The presumption is always in favour of regularity. In support of this view reliance may be placed on Charanjit Lai v. Union of India : 1SCR869 in which it has been laid down that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The same view has been taken in a Full Bench of Nagpur High Court, Bhaurao Atmaram v. S. D. C., Cbandur-Morsi (S) A. I. R. 1955 Nag. 1 (B) and Jamath Mosque v. Vakhan Joseph (S) A. I. R. 1955 Trav-Co. 227 (FB) (C).
14. In order to examine the question as to what is the subject on which the impugned Ordinance can be said to have legislated, courts have held that the real question is what is the true nature and character of the legislation and that has to be judged from its operation and effect which can be gathered from the language of the ordinance. In United Provinces v. Atiqa Begum A. I. R. 1941 F. C. 16 (D) at p. 35 it has been laid down that 'when the question is whether any impugned Act is within any of the three lists or in none at all, it is the duty of the courts to consider the Act as a whole and decide whether in pith and substance the Act is with respect to any particular category or not.' This can be inferred only from the face and purport of the Act as disclosed by its language and the effect which it would have in its actual operation. Their Lordships of the Privy Council have repeatedly stressed that we must look to the pith and substance of: the Act in order to ascertain its true nature and character.
15. The preamble is no part of the Act. Its aid I can be taken only when there is some doubt about I the meaning of the operative part of the Act. The object of this Ordinance is to provide against the subversion of the Government. The campaign was violence on a mass scale, murders and other kinds of offences destruction of property, arson by other means, with the result mat the machinery of the Government may be paralysed with the further result that the Government may be subverted. This Campaign Was not merely crossing the border or merely attacking the territory but was an organised series 'of acts. It is of no importance for the promulgation of this Ordinance as to where the person who committed the crime came from. The matter of consequence is what is the operation of the Act, namely for whom obligations were created. The ruler entered into the instrument of accession because he felt he could not prevent the raiders from crossing the border and assigned the question of turning away the raiders to the Government of India, The ruler was nonetheless concerned with what was happening as a result of the raiders having entered the State. The campaign was to destroy the internal rule by committing crimes on a mass scale.
16. We must gather the object of the Ordinance and its operation from the language of the Ordinance itself. The sole object was to create an offence and to provide a machinery for the punishment of those offences which is provided in Sections 3 and 4 and the subsequent sections. There is no section devoted to the question of affecting the rights and obligations of the Army or the defence. The mere fact that military is mentioned does not make it an Army Act. It does not operate upon the defence personnel. The fact that the civil authorities may take the aid of the Army does not affect the quality of that legislation because the operation is different from what is the usual and ordinary operation of an Army Act. It does not amount to superintendence or regulation or mobilisation of the Array personnel and in our opinion the Ordinance had done no more than the creation of an offence under Section 3 and the provision for a machinery for the punishment of the offence. According to the constitutional practice if the peace and tranquillity of the province is endangered it is the provincial power and it would be the concern of the province to make law to prevent such happenings and that is what the State has done by promulgating the impugned ordinance.
17. Even if the Ordinance remotely affects any lentry in the list it is not a legislation on that entry. Keliance may be placed on Subrahmanyan v. Muttuswami A.I.R. 1941 F C 47 (E) at p. 54:
A hard and fast rule of exclusion derived from the strict liberal language of Section 100 may therefore be quite impracticable and unworkable. To avoid such difficulties the Imperial Parliament has thought fit to use the expression 'with respect to,' which obviously means that looking at the legislation as a whole, it must substantially be with respect to matters in one list or the other. A remote connexion is not enough.
These words do not connote the idea that it must be-absolutely and exclusively within one list and not encroaching, not even in an indirect way, upon any other.
18. It has to be seen whether the connection between the ordinance and defence is far-fetched or. is it direct or approximate. This has to be decided from the language of the statute. It may be that by legislation for the peace and tranquillity of the State, the prosecution of war and defence of the country may be helped indirectly but that does not amount to saying that the legislation becomes the subject relating to defence and war. The operation of the impugned ordinance creates rights and obligations on the subjects of the State and does not interfere with the rights of the Army personnel or impose any obligations on them and therefore it cannot be said' to be a subject of the defence. There was a peculiar situation in the State inasmuch as murders were being committed, property on mass scale was being destroyed and in order to prevent these disturbances, the legislative authority armed itself with law in order to impose deterrent punishments so that normal conditions might be restored. This law could, in our opinion, be made for the purpose of maintaining law and order.
19. Moreover, from the preamble of the Ordinance it appears that the ordinance was promulgated on account of the emergency arisen as 'a result r wanton attack by outside raiders and enemies the State and also for the trial and punishment of enemy agentsi and persons committing certain offences with intent to aid the enemy. The preamble just gives the occasion for legislation. It has got nothing to do with defence. There is no direct connection between this ordinance and the ordinary concept of defence. Assuming that reference to army operations in Section 3 makes Section 3 a law on the subject of army and is deemed to be a legislation with respect to an entry in the defence list it cannot be said that the latter two parts of the ordinance are matters which would come under defence. The question would be whether the first part is so inextricably mixed with the second two parts that the whole law becomes void. The first part is clearly severable from the other two parts and if the ruler would have known that he could not enact the first part of the ordinance referring to military he would have been fully competent to enact the other parts of the Ordinance to protect the life and property of the subjects. Even if we take away the military part of the Ordinance the other portion of the ordinance would be perfectly valid, avid cannot be struck down. In State of Bombay v. F. N. Balsara reported as A.I.R. 1951 S C 318 (F) it has been held:
The provisions which are in my view invalid,' cannot affect the validity of the Act as a whole. The> test to be applied when an argument like the one addressed in this case is raised, has been correctly summed up by the Privy Council in Attorney General for Alberta v. Attorney General for Canada 1947 A C 503 at p. 518 (F-l) in these words:The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is 'ultra vires1 at all.
20. It is quite clear, therefore, that only those provisions which are ultra vires and are severable from the other portions of the Act can be struck down but in the present case as pointed out above,: the Ordinance cannot be held to be a defence legislation. Prom the nature and character of the Penance and from its operation and effects it is that two matters have been dealt with, namely (1) keeping in view the heinous character of the offence Special criminal law has been enacted, and (2) special courts are created to try these offences. Otherwise these offences would have been properly dealt with under the Penal Code. All that has been done is that instead of amending the Penal Code another law has been made.
21. The ordinance in our opinion was validly promulgated by the. ruler under Section 5 of the Constitution obtaining in 2005.
22. It has been argued by the counsel for the petitioners that by the Constitution Amendment Act of 2008, Section 5 was deleted and Section 76 does not save the Ordinance which was promulgated under Section 5 of the Constitution Act of 1996 by His Highness and therefore it must be deemed to have expired when the amendment came into force.
23. This contention is without any force. With the change of sovereignty the law made by His Highness would not cease to exist merely because His Highness retired or the sovereignty of the State passed on to the Dominion. It is well settled law that the Constitution is prospective and not retrospective and the general principle if that if a law is made by a competent authority it does not cease to exist because that authority loses its power. Reliance may be placed on Shiv Bahadur Singh v. State of Viudhya Pradesh : 1954CriLJ1480 in which it has been laid down that.
Rewa Law would continue to be in force in the Rewa portion of United States of Vindhya Pradesh, as the Vindhya Pradesh law therefore, on the principle that on change of sovereignty over an inhabited territory the pre-existing laws continue to be uforce until duly altered: Mayor of Lyons v. East India Co. 1 Moo lad App 175 (PC) (11).
23a. Constitution on being prospective any change in the distribution of power or the extinction of power could only operate on legislation made after the Constitution and would not affect the existing laws or law in force at the time when the Constitution came into force. Article 372 of the Constitution of India and Section 157 of the Constitution of the State declare that the laws in force at their commencement shall continue subject to the provisions of the respective Constitutions, The expression 'subject to the provisions of the Constitution in Art- 372 of the Constitution of India and Section 157 of our Constitution means that to the extent of the inconsistency between a constitutional ban and the existing laws, the laws in force shall not be valid. Where there is no such inconsistency the law will continue and apply with full force even after the commencement of the subsequent Constitution.
24. The impugned Ordinance was promulgated by the competent authority i. e. His Highness in S- 2005 and by the amendment Act of 2001, Section 5 of that Constitution was deleted. It will be given retrospective effect to this amendment if it is held that by the deletion of Section 5 all the laws made thereunder became extinct. In support of the proposition that the laws made in the exercise of the power belonging to the law-making authority at the time when they were made are not affected by the subsequent distribution of power and that Article 245 is irrelevant to the validity of such laws reliance may be placed on Sagar Mai v. The Stale : AIR1951All816 , Sheoshankar v. State Govt. of M. P. A.I.R. 1951 Nag 58 (FB) (J). In the Allahabad case it has been held that Article 246 which distributes the legislative powers between the Parliament of the Union and the State Legislatures has nothing to do with laws already made and if those laws are not contrary to any provisions of the Constitution, it cannot be said that those laws are not valid. The words 'subject to the other provisions of this Constitution,' in Article 372, do not mean that laws which had been passed by the Central Legislature before 28-1-1950, automatically cease to have effect because the subject has now been made a State Subject.'
25. The Supremo Court in Inder Singh v. State of Rajasthan : 1SCR605 has laid down that the notifications even though made after the new Constitution derive authority from the ordinance promulgated prior to the Constitution and, therefore, are valid if the Ordinance was; valid at the time when it was made. Such notifications do not derive any authority from the legislative authority which came into existence after the commencement of the new Constitution.
26. It is argued that the Ordinance passed under Section 5 was not continued by a special provision in the amending Act and, therefore, the Ordinance became extinct. It was not necessary, in our opinion, for any constitution-making authority to make express provision that the laws made under Section 5 should continue. The Ordinance was promulgated under the inherent Power declared by Section 5 of the then Constitution and by deletion of Section 5 in the amending Act which came into force in the year 2008 the Ordinance did not become invalid.
27. Moreover, the promulgation of the Ordinance was an operation of Section 5 and an act done under Section 5 of the Jarnmu and Kashmir Constitution Act of 1996 will be saved by Section 6 of the Jammu and Kashmir General Clauses Act. It may be noted here that the analogy in the case of rules and by-laws made under any statute which become extinct when the statute is repealed does not apply to the laws made under the provisions of the Constitution. If the power to make laws become extinct the laws already made would not become extinct unless they are inconsistent with the provisions of the Constitution. The rules are made in order to carry out the purposes of the Act under which they are made and they are so inextricably tied up with the Act that on the repeal of that Act there being no purpose of the Act to be fulfilled the rules and by-laws do not survive. This could not be predicated in respect of the laws made under a Constitution as there is no such indissoluble connection between the two. The laws having been validiy made survive the repeal of the Constitution. Therefore, there was no necessity of inserting the provisions of Article 372 in cases of amendments of the Constitution.
28. Having held that his Highness was competent to promulgate the Ordinance under Section 5 of the Constitution even after the accession and having further held that the Ordinance is not affected by the amendment of the Constitution which came into force in Section 2008 by which Section 5 of the Constitution Act was altogether deleted we come to the last question whether or not the Ordinance is hit by Article 14 of the Constitution of India and is void under Article 13 of the said Constitution.
29. It will be convenient at this stage to set out the relevant provisions of the impugned Ordinance. As already noted the preamble of the Ordinance states the necessity for promulgating the Ordinance which arose on account of the wanton attack by outside raiders and enemies of the State and for providing trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy. Section 2 defines 'ENEMY' and 'enemy agent' and Section 3 creates offences and provides punishments. Section 3 leads as under:
Whoever is an enemy agent or, with intent to aid the enemy, does, or attempt or conspires with any other person to do any act which is designed or likely to give assistance to the military or air operations of the enemy or to impede the military or air operations of Indian forces or the forces of any Indian State or to endanger life or is guilty of incendiarism shall be punishable with death or rigorous imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.
Sections 4 and 5 and other sections provide (or the machinery for the trial of offences created under S- 3 of the Ordinance.
30. In the Ordinance there are some procedural provisions which mark a departure from the ordinary criminal Code and that is the reason why it is to be considered whether there is valid classification. If there is valid classification then, of course, those provisions will be justified because it is open to the legislature to create different classes of persons differently. The mere fact that there is difference in procedure in Cr. P. Code and in this ordinance is a matter of no consequence if it is found .that there is valid classification. It is permissible for the legislature to have classification of persons or 'things provided that there is some differentia or 'there are some valid reasons for classification. The provisions of Article 14 of the Constitution have come up for discussion before the Supreme Court in a number of cases and it is now well established that Article 14 forbids class legislation. It does not forbid reasonable classification for the Purpose of the legislation : vide State of West Bengal v. Anwar Ali Sarkar : 1952CriLJ510 and Kathi Raning Rawat v. State of Saurashtra : 1952CriLJ805 .
31. In order, however, to pass the test of reasonable classification two conditions have to be full (filled, namely (1) that the classification must be based on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group and (2) that differentia must have a rational relation to the object sought to be achieved by the statute in question. It is also well-established by the decision of the Supreme Court that Article 14 condemns discrimination not only by substantive law but also by a law of procedure.
32. We have to scrutinise the provisions of the impugned Ordinance in the light of the principles mentioned above to see whether the ordinance fulfils the above conditions or not.
33. The first question for determination would be whether there is in the impugned Ordinance a reasonable classification for the purposes of legislation. If we examine the provisions of the impugned Ordinance closely it would appear that the legislature classified offences committed with the object of subverting the government from the similar offences committed by the persons with some other motive. Put a man who commits a crime with intention of subverting the Government along-side a roan who has; committed a murder for his personal motive. It cannot be said that there is no intelligible differentia between the two. The difference between the two is based upon intelligible reasons. The object of the statute is to prevent the subversion and to restore conditions or normalcy avid tranquillity and for that purpose special sentences of deterrent nature are provided for the culprits who are found guilty of the offences so classified. A perfectly intelligible principle on which the classification is based has reasonable relation to the object which the Ordinance is intended to achieve. Persons against whom allegations are that they committed crimes of arson or murder with the intention of subverting the government are distinguished from the other offenders who commit the samp type of crime for other motives.
34. It has been argued on behalf of the petitioners that the power given to the Government to allot the cases to the special Court is an arbitrary power and, therefore, the Govermeut can pick and choose out of the persons who have committed the special offence. If the Ordince is read in its entirety it does not give any discretion to the Government. All the offences created by this law are triable by the Special Judge exclusively and the Government has got to send all the cases to the Special Judge. The word 'may' in Section 5 has been used to mean 'must'. Section 5 (2) of the Ordinance provides that a Special Judge shall try an offence punishable under Section 3 which the Government by general or special order in writing direct to be tried by him. From this provision it appears that the Government is left with no choice to send the case to any other Magistrate, It must be tried by Special Judge and no other Court. The Government cannot make Section 5 unworkable or act contrary to Section 4 and Sub-section (2) of Section 5 has got to be read along with S, 4. The word 'may' sometimes means 'must' and the meaning of the word 'may' has to be gathered from the language of the whole statute. Maxwell on Interpretation of Statute at p. 213 says:
The provision of Section 56, Corrupt and Illegal Practices Prevention Act, 1883 that certain jurisdiction conferred by the Act 'may' be exercised by one of the Judges for the time being on the Rota for the trial of election petitions is to be read as equivalent to ''must' and the jurisdiction cannot be exercised by any other Judge.
Craies on Statute Law at page 264 has mentioned:
It was decided in the case of R. v. Barlow that when a statute authorises the doing of a thing for the sake of justice or the public good, the word 'may' means 'shall', and that rule has been acted upon to the present time.
In the Constructions of Statutes by Crawford at page 520 it is stated:
If the language of the statute, considered as a whole and with due regard to its nature and object reveals that the legislature intended the word ''shall' and 'must' to be directory, they should be given that meaning. Similarly, under the same circumstances, the word ''may' should be given a mandatory meaning.
35. Assuming, however, that a discretion was given to the Government to make a selection out of those persons who committed offences under Section 3 of the Ordinance, the discretion of the Government would not be uncontrolled and unguidod. The discretion had to be exercised in accordance with the principles and the policy laid down by the legislature in the Ordinance. It is permissible for the legisla. five authority to delegate the power of classification to any other authority provided the legislative authority lays down the policy and principles which should control and guide the exercise of the power given to the latter authority. Reliance may be placed on a decision of the Supreme Court, reported as Kudar Nath v. The State of West-Bengal : 1953CriLJ1621 , in which it has been held :
There are cases where the lesisaiture itself makes a complete classification of persons or things and applies to them the law which it enacts, and other where the legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting a certain common characteristics, but being unable to make a precise and complete classification leaves it to an admins-trative authority to make a selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terras the underlying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law.
In order to see whether Section 4, West-Bengal Criminal Law Amendment (Special Courts) Act 1949 violates Article 14 the real issue to be considered is whether having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions, the classification of the offences, for the trial of which the Special Court is set up and a special procedure is laid down can be said to be unreasonable or arbitrary and, therefore, violative of the equal protection clause, it was held that the system of Special Courts to deal with special types of offences under a shortened and simplified procedure was devised to meet the situation and that the legislation in question was based on a perfectly intelligible principle of classification having a clear and reasonable relation to the object sought to be attained.
The argument that there is discretion given to the Government, to pick and choose out of the two persons who have committed this heinous offence for trial under the Ordinance is not sound because the principle is laid down by the Ordinance itself and that principle is 'offences committed with intention to subvert the Government and to aid the enemy' and the Government must follow those principles before making its selection and that is perfectly permissible as pointed out in the above rulings. The Government cannot act contrary to Section 4 and the presumption is always in favour of the constitutionality of an enactment. It must be assumed that the legislature understands and correctly appreciates the needs of its own people that its laws are directed to problems' made manifest by experience and that its discriminations are based upon adequate grounds, vide : 1SCR869 .
36. The learned Counsel for the petitioners relying on : 1952CriLJ510 and Laehmandas Kewalram v. State of Bombay : 1952CriLJ1167 argued that the Ordinance is invalid inasmuch as the classification is unreasonable and arbitrary. The rulings cited by the learned Counsel do not apply to the present case. In those rulings it was held that there was no valid classification and the procedure prescribed was discriminatory. The power was given to the Government to select any case in which any offence under the Indian Penal Code might have been committed which was obviously no classification at all. But in the present case it is not so. It was legitimate for the State to say that if a person who has committed an offence under Section 3 of the Enemy Agents Ordinance commits any other offence then that offence will be tried along with an offence under Section 3. There is no inequality in procedure because if the conditions of Sections 233 to 239, Cr.PC are satisfied then any person who is charged with any offence can be tried by other offence. This is a matter relating to procedure and is not a matter relating to allotment of cases. If the case is allotted then the provisions of Criminal Procedure Code would come into play. It is the criminal court that has been created and if a court is competent to try any offence according to the Criminal Procedure Code then Section 234 gives the power to that Court to try any other offence. The moment the Criminal Procedure Code is applied, Sections 234 to 239 are attracted. If the legislature was justified in having a special offence tried by the special court because there is a special class of offenders, then by parity of reasoning the legislature would be justified in making a law which may result in the trial of the ordinary offences by the special court because it is that particular offender belonging to that particular class and the offences arising out of the same transaction and subject to the conditions laid down in the Criminal Procedure Code. The power given to the Special Court is by the Criminal Procedure Code because it is a matter relating to procedure. Therefore, the provision contained in Section 4 clause (2) of the Ordinance that the person sent up for trial before the Special Court may be charged with and tried at the same trial for any other offence is not repugnant to the equal protection clause of the Constitution, vide : 1953CriLJ1621 .
37. It was contended that some persons who might commit an offence under Section 3 have been left out and enemy agent alone is provided against is not sound. The definition of 'enemy' is an inclusivoj definition and means and includes not only the raiders but also the nationals of the State who have either taken part or assisted in the campaign which was a continuous activity consisting of various acts like murder, arson etc. In the definition of 'enemy agent1 the words 'the enemy' have been used as a compendious expression to denote collectively all the persons who are engaged in the organised activity described as campaign and whose design and object was to subvert the Government. The marginal note cannot control the language of the section and, therefore, it is the language of the section which needs analysis. Section 3 lays down the mensrea that is the intention to aid the enemy as a governing factor. This section consists of two main parts. Being an enemy agent itself is an offence and in the remaining part 'attempts to do an act or conspires to do an act' have been made an offence and fall into four groups; (1) assisting the enemy operations; (2) mite Indian Army operations (3) endangering, life and (4) incendiaries. The moment that there is an act designed to these four classes of acts, the ease falls within Section 3. The word 'whoever' is a| word of wide amplitude and anybody who took part in the campaign and committed the above act or assisted in the Gampaign would come within the purview of this section and, therefore, all persons are embraced by the definition of 'enemy'. Even though they might belong to the Army personnel of the enemy they would be covered by Section 3 of the Ordinance and no one committing the acts specified in the section escapes from the clutches of law.
38. Assuming, however, that there is any class of persons which is not embraced by Section 3, the validity of the law will not be attested thereby as it is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out, the legislation is not rendered discriminatory thereby. In Hans Mullerl of Nurenburg v. Superintendent, Presidency Jail, Calcutta : 1955CriLJ876 it has been held:
The classification of foreigners into those who are British subjects of the kind set out in the definitions of 'a foreigner' in Section 2(a), Foreigners Act, 1946, and others, so as to make the former not foreigners for the purposes of the Foreigners Act and the Preventive Detention Act, is a reasonable and rational classification and so does not offend Article 14. There is no individual discrimination and it is easily understandable that reasons of State may make it desirable to classify foreigners into different groups. Section 3 (1) (b) of the Preventive Detention Act or Section 3(2)(c) of the Foreigners Act is not therefore ultra vires as offending Article 14 of the Constitution.
39. I that been argued that offences against the central laws could not be tried by the Special judge under the provisions of the impugned Ordinance. This argument is untenable inasmuch as the central laws do not lay down the machinery for the trial of those offences. The offences contemplated by those Acts have to be tried in a manner laid down in Section 5 (2) of the Criminal Procedure Code and Sch. II thereof. Section 177 of the Criminal Procedure Code provides that an offence 'shall be tried by a Court within the local limits of whose jurisdiction the offence is committed. Accordingly there is no illegality in the trial of offences against central laws by this Special Judge.
40. It was argued that the appellate and revisional jurisdiction of the High Court has been taken away under Section 14 of the Ordinance which is contrary to Section 104 of the Constitution of Jammu and Kashmir. We do not see much force in this contention. Section 102 of the State Constitution provides that the jurisdiction of the High Court is subject to the provision of any law for the time 'being in force. :In other words it is open to the legislature to affect the jurisdiction of the High Court by means of legislation. The right of appeal is not a fundamental right but is a creature of the statute and it can be taken away by the statute. Reliance may be placed on Veerayya v. Subbiah : 1SCR488 in which it has been held:
The right of appeal is a vested right and this vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendnient and not otherwise.
41. Section 9 of the Ordinance provides that out of the Judges of the High Court a reviewing Judge is to be appointed and the reviewing Judge is invested with all the powers exercisable under Section 439 of the Criminal Procedure Code.
42. Lastly it is argued that under the Ordinance as it stands there is possibility of discriminatory treatment being meted out to the petitioners inasmuch as the Special Judge may not record their full statements and may refuse to summon any witness if satisfied after the examination of the accused that evidence of such witness will not be material. The mere possibility of discrimination is not enough. In Qasim Bazvi v. State of Hyderabad : 1953CriLJ862 it was held that a mere threat or possibility of unequal treatment is not sufficient. It the law is good on its face and there is no unconstitutionality in the law, in such a case it is essential for the petitioner to satisfy the Court that in the application of the law he has been discriminated against. No proof exists of such an application of the Ordinance. The statements of the witnesses, we are told, have been recorded in full and full opportunity has been given to the accused to cross-examine those witnesses. We are further told that the accused have been given the freedom of appointing lawyers of their own choice and in two eases where the accused did not exercise the choice, the state engaged a counsel for them.
43. In the result we hold that the Enemy Agents Ordinance of 2005 is valid and does not offend against the provisions of Article 14 of the Constitution of India and as such is not void under Article 13 of the said constitution as applied to the State of Jammii and Kashmir.
44. This petition is dismissed.
J.L. Kilam, J.
45. I agree that the ordinance was valid when it was made and continues to be valid and that the writ petition be dismissed.
M.A. Shahmiri, J.
46. I agree that the Ordinance was valid when it was promulgated and that continues in force by virtue of Article 372 of the Constitution of India and that the petition be dismissed.