ADMINISTRATIVE LAW ICE 2- IRAC ASSIGNMENT

“State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, AIR 1967 SC 122.”

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Contents
INTRODUCTION................................................................................3
FACTS...............................................................................................3
RULE....................................................................................................4
ANALYSIS...........................................................................................4
Issue 1:...............................................................................................4
Issue 2:...............................................................................................4
Issue 3:...............................................................................................5
Issue 4:...............................................................................................6
Issue 5:...............................................................................................6
Issue 6:...............................................................................................6
CONCLUSION....................................................................................7
BIBLIOGRAPHY................................................................................7

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INTRODUCTION
The case decides the validity of the inquiry commission established by the government
through a notification and the complexities surrounding it. The Supreme Court examined the
legal questions of the scope and limitation of the Jammu and Kashmir Commission of Inquiry
Act. This analysis highlights the Supreme Court’s reasoning for upholding the validity of the
notification and providing insights into Constitutional provisions, natural justice, and the
significance of public rights. Through this judgment, the court asserted the importance of
administrative law to control administrative action.
FACTS
Bakshi Ghulam Mohammad (respondent) was the deputy prime minister after the accession
of Jammu and Kashmir in 1947. He took the role of Prime Minister after the dismissal of
Sheikh Mohammad Abdullah in 1953 and remained in power till 1963. He resigned from his
Prime Ministership and G.M. Sadiq who was in the cabinet of the respondent along with D.P.
Dhar for 10 years became Prime Minister which started the political rivalry between him and
the respondent. A no-confidence motion was initiated which according to the respondent had
obtained the support of the majority. However, before the motion could be passed the
respondent and his supporters were arrested. On the same day, G.M. Sadiq challenged the
validity of the signature and that the motion had no support from the majority. However, the
session was prorogued by the speaker under the direction of the constitutional head of the
state.
A writ of Habeas Corpus was filed in the High Court, but the respondent was released before
the matter could be heard. Later, the State Government established the Commission of
Inquiry through a notification to investigate 1. the extent of the wealth and assets of the
respondent and his family also his relatives and 2. to investigate whether, during the tenure of
16 years, the respondent and his supporter abused his position to exploit and acquire wealth,
assets and, financial resources. The notification specified that the Commission’s inquiry into
issue 2 will be limited to allegations outlined in the second schedule. Bakshi Ghulam
Mohammad filed a writ in the High Court quashing the proceedings of the Commission
which was allowed. This decision of the High Court was appealed by G.M. Sadiq, D.P. Dhar
and, the State.

ISSUE
1. Whether the notification issued against the respondent was justified under the Jammu
& Kashmir Commission of Inquiry Act, 1962?
2. Whether the matter to be inquired by the Commission is of public importance?
3. Whether the inquiry of the conduct of the respondent was outside the scope according
to Section 10 of the Jammu and Kashmir Commission of Inquiry Act, 19621?
4. Whether the notification was malafide?
5. Whether the notification violates Article 14 of the Constitution2?
6. Whether respondents have the right to cross-examination?

1
The Jammu and Kashmir Commission of Inquiry Act, 1962, §10, No. 32, Act of Jammu and Kashmir State
Legislature, 1962 (India).
2
INDIA CONST. art. 14.

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RULE
1. Section 37 of the Jammu and Kashmir Commission of Inquiry Act, 19623.
2. Section 37 of the Jammu and Kashmir Constitution4.
3. Section 10 of the Jammu and Kashmir Commission of Inquiry Act, 19625.
4. Article 14 of the Constitution of India6.
5. Section 3 of the Jammu and Kashmir Commission of Inquiry Act, 19627.
6. Section 4(c) of the Jammu and Kashmir Commission of Inquiry Act, 19628.

ANALYSIS
Issue 1:
The argument raised on behalf of the respondent was Council of Ministers is collectively
responsible to the Legislative Assembly implying, that Ministers are not individually
responsible for the actions taken during their term in office.
However, the Court rejected this argument by stating that the constitution of Jammu &
Kashmir is a written one and interpretation should be based on it. Section 37 of the
Constitution refers to the collective responsibility of the minister. The legislature can enforce
this responsibility by voting the Council out but the respondent was not holding any office as
a member of the Council of Ministers and therefore Section 37 did not apply to his case.
Further, Section 37 of the Inquiry Act grants power to the government to appoint a
Commission of Inquiry. Thus, a government can initiate an inquiry for any matter that is
deemed necessary. Therefore, the government can set up an inquiry without a resolution from
the legislature.
Issue 2:
The respondent argued that the act allowed the establishment of Inquiry for public importance
and the criterion that commission inquires is not of public importance. Although accepted in
the High Court this argument was rejected by the Supreme Court. The inquiry was about the e
wealth and assets of the respondent and his family as his relatives and to investigate whether,
during the tenure of 16 years, the respondent and his supporters abused his position to exploit
and acquire wealth, assets and, financial resources. The Supreme Court analyzed the issue
which was put under two tests by the High Court:
(i) Since the respondent was not in the office, therefore, this was not a matter of
public importance.
The Supreme Court said it would be highly unusual if the legislature passed a
Commission for inquiry to investigate the respondent while he was holding the
office of Prime Minister. If a situation like this arose the Prime Minister would ask
for the resignation of the ministers initiating the inquiry or would resign himself.
3
The Jammu and Kashmir Commission of Inquiry Act, 1962, §37, No. 32, Act of Jammu and Kashmir State
Legislature, 1962 (India).
4
JAMMU AND KASHMIR CONST. § 37.
5
The Jammu and Kashmir Commission of Inquiry Act,1962, §10, No. 32, Act of Jammu and Kashmir State
Legislature, 1962 (India).
6
INDIA CONST. art. 14.
7
The Jammu and Kashmir Commission of Inquiry Act, 1962, §3, No. 32, Act of Jammu and Kashmir State
Legislature, 1962 (India).
8
The Jammu and Kashmir Commission of Inquiry Act, 1962, §4(c), No. 32, Act of Jammu and Kashmir State
Legislature, 1962 (India).

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 If he asks for resignation then no inquiry will be set up. If he resigns himself then
the inquiry can be set up for someone who is no longer in office which would
imply that the Prime Minister would never be investigated under the act.
The High Court based its view on the case Ram Krishan Dalmia v. Shri Justice
S.R. Tendolkar9,-“the conduct of an individual may assume such a dangerous
proportion and may so prejudicially affect or threaten to affect the public well-
being as to make such conduct a definite matter of public importance, urgently
calling for a full inquiry.” Supreme Court rejected the view by stating that the
cited case observation is not an exhaustive definition and the inquiry aims to
investigate the past actions of the respondent which affected the public or could
affect the public making it a matter of public importance.
Further, the respondent argued that the inquiry was investigative to collect
evidence and hence, not of public importance. The Supreme Court dismissed this
argument stating that the public has the right to know whether the chosen
representative is a worthy or unworthy individual. The facts need to be established
and backed by evidence before any measures can be taken. The respondent further
argued that the inquiry was established to investigate the misconduct of the
respondent which is out of the purview of the Act. The Supreme Court said that
inquiries arise from questions which are based on allegations. The allegation can
raise significant problems to the public and whether the allegation is definite will
depend on the nature of the allegations.
(ii) Since there was no agitation in public, therefore, this was not a matter of public
importance.
The Supreme Court disagreed with this point by stating that a matter can be of
public importance even if it doesn’t cause a public outcry. The public may not be
aware of the significance of the matter. There might have been an attempt to
influence the public. The public’s reaction depends on how well they know about
the matter. The matter to be of public importance depends upon the intrinsic
nature of the matter. The omission of the term ‘definite’ does not invalidate the
inquiry since the Act required the matters to be of ‘definite public importance’.
“'Definite' in this connection means something which is not vague”. The Court
stated the pfacts were vague was not right as it was identifiable by the details
provided and were further cleared during the hearing.
Issue 3:
It was contended that Section 10 of the Act states that inquiry can be made on a person’s
conduct incidentally. The present inquiry directly focussed on the conduct of the respondent
and therefore was beyond the purview of the act since the right granted by Section 10 only
when a person’s conduct is incidentally scrutinized.
The Court rejected this contention that Section 3 which allows the establishment of the
Commission is wide enough to include individuals conduct for inquiry. The Court also
rejected that Section 10 of the Act states that inquiry can be made on a person’s conduct
incidentally as there was nothing in the language of the act that supported this argument. The
Court found it unusual that the section provides the right only when a person’s conduct is

9
Ram Krishan Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538.

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indirectly scrutinized. The Court rejected this interpretation of the Act because what can be
done indirectly can also be done directly.
Issue 4:
The contention made by the respondent that the notification was malafide was rejected by the
Supreme Court. The contention was based on the fact that G.M. Sadiq had a political rivalry
with the respondent and all the steps taken till now were intended to remove the respondent
from political life which cannot be a political rivalry as the respondent retired from politics.
The respondent also made an allegation that G.M. Sadiq had personal animosity which was
unproven. It was argued that the respondent was arrested to undermine the no-confidence
motion. However, there was no proof that the motion had majority support. The appellant
argued that the respondent's behaviour was disruptive and abuse of power allegations were
made. The Criminal Investigation Department has been investigating the respondent’s
behaviour and given the situation of Kashmir, the detention of the respondent was valid. After
the completion of the investigation, there was no reason for the respondent to be detained and
thus, released.
The Appellant contended that the prorogation of the Assembly was necessary for the fear that
trouble may arise within the House due to the respondent as his supporter resented his arrest.
The respondent further alleged that the order for arrest and prorogation was made prior but
the arrest and prorogation happened after Sadar-i-Riyasat returned to the state and thus, this
allegation was rejected. Further, the commission was driven by a retired Justice of the
Supreme Court therefore, the allegation that the commission was driven by malice motive did
not find any ground and was rejected.
Issue 5:
The respondent contended that the cabinet was involved in the decision which was to be
investigated. This contention was rejected as the investigation was of wealth that the
respondent and his supporters accumulated by abusing the power, it was impractical to think
that all of the cabinet was involved in this activity. Even if they did there was no said that
they accumulated the wealth too. Thus, the classification was rational.
Issue 6:
The Supreme Court rejected the reference to the case of Meenglas Tea Estates v. The
Workmen10, which stated that the right to cross-examine comes when there is oral evidence of
the witness, which is not the case in the present appeal and also the current case doesn’t
involve oral evidence. Further, the rule of natural justice includes the right to a hearing which
the respondent was provided not the right to cross-examine. Further, the court disagreed that
the right to a cross-examine is an intrinsic part of the right to a hearing rather it depends upon
the circumstances. The Court cited Nagendra Nath Bora v. Commissioner of Hills Division
and Appeals11,-“the rules of natural justice vary with the varying constitution of statutory
bodies and the rules prescribed by the Act under which they function; and the question
whether or not any rules of natural justice had been contravened, should be decided not
under any pre-conceived notions, but in the light of the statutory rules and provisions.” 12
Further, the Court stated that making a broad interpretation of Section 4(c) of the act which

10
Meenglas Tea Estates v. The Workmen, AIR 1963 SC 1719.
11
Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, AIR 1958 SC 398.
12
Ibid

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gives power to the Commissioner as of Civil Court is incorrect as it would make Section 10
of the Act ineffective as there was no mention of the right to cross-examine the person who
has submitted the affidavit.

CONCLUSION
The Supreme Court examined all of the above issues and disagreed with all of them. Thus,
the High Court’s decision was overturned and the appeal was allowed. The notification issued
was justified under the act. The matter to be investigated by the commission was of public
importance as the act to be investigated was during the time the respondent held the office.
The inquiry on the respondent’s conduct while he occupied office was well within the
purview of the Act. The notification was neither found malafide as the respondent failed to
prove it and the allegation that the notification violated Article 14 was also set aside as there
was reasonable classification. The right to hearing doesn’t include the right to cross-examine
and thus, the respondent didn't have this as an inherent right. The case upheld key principles
like the rule of law, balancing the rights of individuals with the public interest of the
administrative law in India.

BIBLIOGRAPHY

Legal Database:
SCC Online
Manupatra
Books:
Administrative Law, C. K. Takwani, 1980.