CONSTITUTION LAW

MODULE-5: CENTRE-STATE LEGISLATIVE RELATIONS

The dynamics of Centre-State relations in India are defined by the allocation of

powers and responsibilities between the central government and state
governments. These intergovernmental relations, guided by constitutional
provisions, hold significant importance in the operation of the federal structure.
Articles 245 to 255 provide for legislative relations shared between the centre
and the state.
The constitutional framework of India delineates a three-tiered distribution of
legislative powers between the central and state governments through the
categorisation of subjects into three distinct lists in the Seventh Schedule: the
Union List, the State List, and the Concurrent List.

Categorisation of powers of legislative bodies based on subject matter

The constitutional framework of India delineates a three-tiered distribution of
legislative powers between the central and state governments through the
categorisation of subjects into three distinct lists in the Seventh Schedule: the
Union List, the State List, and the Concurrent List.
Within this structure, the Parliament of India exercises jurisdiction over
legislative matters specified in the Union List, encompassing domains such as
defense, banking, communication, trade, auditing, and foreign affairs among
many others.
In contrast, state legislatures are vested with the authority to legislate on matters
pertaining to the maintenance of law and order, public health and sanitation,
agriculture, police, and other issues outlined in the State List.
Furthermore, both the Parliament and state legislatures retain legislative
competence over subjects detailed in the Concurrent List, including criminal
law, civil procedure, marriage, divorce, population control, electricity, social
planning, and drug regulation to name a few.
In case there is an overlap between laws formulated by the Parliament and the
state legislatures over a subject matter mentioned in the Concurrent list, the first
approach would be to read the laws in a harmonious manner. This means that
the laws would be read in a manner that avoids conflict and promotes their
concurrent operation.
The Constitution grants primacy to the Union List over the State List and
Concurrent List, with the Concurrent List holding precedence over the State List
in cases of overlapping jurisdiction. Thus, in instances of conflict between the
central and state governments, precedence is afforded to the former.

Categorisation of powers of legislative bodies based on territory

The legislative authority vested in the Parliament of India encompasses the
power to enact laws applicable either nationwide or selectively within the
territorial boundaries of India. This territorial scope encompasses all constituent
states, union territories, and regions tentatively included within the domain of
India. Moreover, the Parliament is empowered to enact extraterritorial
legislation, enabling the imposition of laws upon Indian citizens and their assets
situated anywhere in the world.
At the state level, legislative prerogatives extend to the formulation and
enforcement of laws within the confines of a particular state. These laws may be
applied either uniformly across the entirety of the state or selectively to specific
regions within its jurisdiction.

Doctrines under the Indian Constitution

A doctrine can be a guideline, a theory, or a precept of the law. It simply refers
to a concept, opinion, or stance that is frequently held by officials such as
judges. In Indian Constitution, many doctrines are developed from time to time
considering the need of the hour. The judiciary has interpreted various doctrines
for better delivery of judgments and to benefit the public at large.

Article 13: Laws inconsistent with or in derogation of the Fundamental

Rights
All laws in force in the territory of India immediately before the commencement
of this constitution, insofar as they are inconsistent with the provisions of this
part, shall, to the extent of such inconsistency, be void.
The state shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall, to
the extent of the contravention, be void.
In this article, unless the context otherwise requires

Law includes any ordinance, or bye-law law, rule, regulation, notification,

custom, or usage having in the territory of India the force of law;
Laws in force includes laws passed or made by a legislature or other competent
authority in the territory of India before the commencement of this constitution
and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas.
Nothing in this article shall apply to any amendment of the constitution under
Article 368.

CLAUSE 1 :
It deals with pre-constitution or existing laws i.e. Laws that were in force
immediately before the commencement of the constitution. Laws
inconsistent with the fundamental rights become void from the date of
commencement of the constitution after the court holds it inconsistent with
the fundamental rights. So as long as the courts do not hold them to be so
 they shall continue to remain in force.

 No retrospective effect
 The Doctrine of Severability
 The Doctrine of Eclipse

No Retrospective Effect-
Provisions of the constitution related to fundamental rights have no
retrospective effect. All inconsistent existing laws become void only from the
commencement of the constitution � They are not void ab initio. Such
inconsistent law is not wiped out so far as the past Acts are concerned. A
declaration of invalidity by courts will be necessary to make laws invalid.

In Keshavan Madhava Menon vs State of Bombay [i], proceedings started

against the appellant offense punishable under Section 18 of Press (Emergency
Powregarding1 in a regard to a pamphlet published in 1949. The appellant
contended that the Act was inconsistent with fundamental rights conferred by
the constitution and I'd become void under article 13(1) after 26 January 1950.
Hence proceedings could not be continued. The Supreme Court rejected the
contention and held article 13(1) had no retrospective effect

DOCTRINE OF SEVERABILITY-
When a part of the statute is declared unconstitutional then a question arises
whether the whole of the statute is to be declared void or only that part which is
unconstitutional should be declared void. To resolve this problem, the Supreme
Court has devised the doctrine of Severability or separability.

This doctrine means that if an offending provision can be separated from that
which is constitutional then only that part that is offending is to be declared as
void and not the entire statute. In General Motors Traders V State of Andhra
Pradesh [ii], it was held that Article 13 of the Constitution uses the word "to
extent of such inconsistency be void" which means that when some provision of
the law is held to be unconstitutional then only the repugnant provision of the
law in question shall be treated by courts as void and not the whole statute.

In A.K Gopalan V State of Madras [iii], the Supreme Court declared Section
14 of The Preventive Detention Act, 1950 as ultra vires observed that the
omission of the section will not change the nature or the structure of the subject
of the legislation. Therefore, the decision that Section 14 is ultra vires does not
affect the validity of the rest of the Act.
This is, however, subject to one exception subject to one exception. If the valid
portion is so closely mixed up with the invalid portion that it cannot be
separated without leaving an incomplete or more or less mingled remainder,
then the courts will hold the entire Act, void.

This exception was put forward in Romesh Thappar V State of Madras [iv]
where the Supreme Court observed that where a law purports to authorize the
imposition of restriction on a Fundamental Right in language wide enough to
cover restriction, both within and without the limits provided by the
Constitution and wide enough to cover restrictions, both separate the two, the
whole law is to be struck down.

DOCTRINE OF ECLIPSE-
In the case of Bhikaji Narayan V State of Madhya Pradesh [v], the court
observed that the Doctrine of the eclipse is based on the principle that a law that
violates Fundamental Rights is not nullity or void ab initio but becomes only
unenforceable, and remains in a moribund condition. It is overshadowed by
fundamental rights and remains dormant, but is not dead.

In the case of Keshavan Madhava Menon V State of Bombay [vi], the court
observed that such laws are not wiped out entirely from the statute book. They
exist for all past transactions, for the enforcement of rights acquired and
liabilities incurred before the present Constitution came into force, and for the
determination of rights of persons who have not been given fundamental rights
by the Constitution.

The doctrine of eclipse does not apply to a Post-Constitutional law

In the Deep Chand V State of Uttar Pradesh [vii], the Supreme Court held
that a post-constitutional law made under Article 13(2) that contravenes a
fundamental right is nullified from its inception and is still-born a law. It is void
ab initio. This doctrine of eclipse does not apply to post-constitutional law.

DOCTRINE OF WAIVER-
In this, a person deliberately relinquishes a right or advantage that the state has
granted him, or decides not to utilize it.

The question of waiver directly arose in Bahsher Nath V Income Tax

Commissioner [viii], the Supreme Court ruled that a person's basic liberties
cannot be relinquished.
In Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal
Corporation & Ors [ix], the court ruled that everyone has the option to forego
any benefits or protections that are intended for them. For instance, in a renter-
owner disagreement, if a notification is given and no response is provided by
the owner, tenant, or sub-tenant, it would constitute a loss of chance, and that
person cannot be permitted to change their mind afterward.

In Mutiah M. Ct V Commissioner of Income Tax [x], the Supreme Court held

that it is not open to a citizen to waive any of the fundamental rights conferred
by Part III of the Constitution. These rights have been put in the Constitution
not merely for the benefit of the individual but as a matter of public policy for
the benefit of the general public.

It is an obligation imposed upon the state by the Constitution. No person can

relieve that state of this obligation, because a large majority of our people are
economically poor, educationally backward, and politically not yet conscious of
their rights. In such circumstances, this court must protect their rights against
themselves.

THE DOCTRINE OF BASIC STRUCTURE-

The doctrine of Judicial review was for the first time propounded by the
Supreme Court of America. US Constitution originally did not contain an
express provision for Judicial review. However, it assumed the power of
Judicial Review by the Supreme Court of America in the case of Marbury v
Madison, 1803.

Judicial Review refers to the ability of the Supreme Court (or High Courts) to
investigate the validity of any law and proclaim it illegal and irrelevant if the
Court finds that the law conflicts with the Constitution's provisions. In other
words, judicial review refers to the ability of the court to determine whether
laws and administrative orders issued by the federal and state governments are
legitimate.

In the Indian constitution, we have an express provision for Judicial review and
hence it is on a more solid footing than it is in America.

In Shankari Prasad V Union Of India[xi], it was contested that Article 13

forbade amendments that violate citizens' basic rights. It was contended that
"law" encompasses constitutional amendments and "state" includes the
legislature. It was decided that "Law" in Article 13 refers to common law
created by governmental authority. Consequently, the government has the
authority to change the law.

In Golak Nath v. State of Punjab[xii], the Supreme Court, however, took a

new perspective to see the powers of parliament, holding that it cannot change
Part III of the Constitution, which is comprised of Fundamental Rights.

In Kesavanand Bharati v State of Kerala[xiii], it has been held that Judicial

Review is the Basic structure of the Constitution and therefore "it cannot be
damaged or destroyed by amending the Constitution under Article 368 of the
Constitution."

In Minerva Mills V Union of India[xiv], Supreme Court held that though the
Parliament has the power to amend the Constitution it should not alter its basic
features.

DOCTRINE OF TERRITORIAL NEXUS

It implies that the object to which the law implies need not be physically located
within the boundaries of the state, it is enough if it has a sufficient territorial
connection with the state. This doctrine has generally been invoked in tax cases.
Article 245 of the Indian Constitution talks about territorial nexus.
Subject to the provisions of this Constitution, Parliament may make laws for the
whole or any part of the territory of India, and the Legislature of a State may
make laws for the whole or any part of the State.
No law made by Parliament shall be deemed to be invalid on the ground that it
would have extra-territorial operation.

In Wallace Bros. v Income Tax Commissioner [xv], the appellant company

was incorporated in England and has its registered office there. It was a partner
to a firm in India. The Company made an overall profit of 2.4 million out of
which 1.7 million was derived from India. It was held that India can impose
taxes on entire income as there was sufficient nexus.

In the State of Bombay V RMDC [xvi], the Bombay State levied a tax on
lotteries and prize competitions. The tax was extended to a newspaper printed
and published in Bangalore but had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The court held that there
existed a sufficient territorial nexus to enable the Bombay state to tax the
newspaper.
THE DOCTRINE OF PITCH AND SUBSTANCE-
Within their respective spheres, Union and state legislatures are supreme and
they should not encroach into the sphere reserved for the other. If a law passed
by one encroach upon the field assigned to other then the court will apply the
Doctrine of Pith and Substance to determine whether the legislature concerned
was competent to make it. If the pith and substance of the law, i.e. the true
object of legislation relates to a matter within the competence of the legislature
which enacted it, it should be held to be intra vires even though it might
incidentally trench on the matters, not within the competence of the legislature

In Prafulla Kumar v Bank of Commerce, Khulna[xvii], the validity of the

Bengal Money lender's act, 1946 which limited the amount and rate of interest
recoverable by money-lender on any loan was challenged on the ground that it
was ultra vires of Bengal Legislature. In so far, it was related to promissory
notes as a central subject. The Privy council held that Bengal Money Lender's
Act was in Pith and substance, a law in respect of money lending and money
lenders which is a state subject and so it was valid even though it trenched
incidentally on a promissory note, a central subject.

In the State of Rajasthan v G. Chawla[xviii], the state legislature made a law

restricting the use of sound amplifiers. The state contended that the law is
within its competence since it fell under Entry 6, List II' Public health and
sanitation. The respondent contended that the impugned law fell under List I,
Entry 31- 'Telephones, Wireless, Broadcasting and like forms of
communication'. It was held that Law in its pith and substance fell substantially
within the state list, even though the amplifier is an apparatus for
communication thus incidentally encroaching upon Union Subject. The power
to legislate about public health includes the power to regulate the use of
amplifiers as producers of loud noises.

THE DOCTRINE OF HARMONIOUS CONSTRUCTION-

The principle of harmonious construction is similar to the idea of a broader
purposive approach the key to this method of the constitution should be
harmoniously interpreted. A provision of the Constitution should be given a
moving and an application that does not lead to conflict with other articles when
there are 2 provisions in the state which are in apparent conflict with each other,
they should be interpreted such that constructions that render either of them
inoperative and useless shall not be adopted except in the last resort.

In O.N. Mohindroo v Bar Council of Delhi & Ors[xix]. In this case, the
question was whether the Advocate's Act 1961 should be termed as Central
Legislature. Entry 77 and 78 of list 1 conflicted with entry 26 of list 3. Entry 77
provided 'constitution organization jurisdiction' and powers of the supreme
court and fees taken therein person entitled to practice before the supreme court.

Entry 78 provided the constitution & organization of the high court, and persons
entitled to practice before the High Court. Entry 26 provided legal, medical, and
other professions. The court harmoniously construed the conflicting entries and
held as far as the matter of legal practice before Supreme Court & High Court is
concerned Centre can make the laws. However, in matters of subordinate courts,
State Government can also make the laws.

In Keshavananda v State of Kerala[xx], the Supreme Court held that the

Fundamental Rights and Directive Principle of State Policy are the conscience
of the Constitution and in case of conflicts, the court should endeavor to
maintain both of them by applying the principle of harmonious construction.
The court established a fair balance between individual interests and the welfare
of the state.

DOCTRINE OF REPUGNANCY-
Art. 254: Inconsistency between laws made by Parliament and laws made by
the Legislatures of States
If any provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact,
or to any provision of existing law concerning one of the matters enumerated in
the Concurrent List, then, subject to the provisions of clause (2), the law made
by Parliament, whether passed before or after the law made by the Legislature
of such State, or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of the repugnancy, be
void.

Where a law made by the Legislature of a State concerning one of the matters
enumerated in the concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an existing law concerning
that matter, then, the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has received his assent,
prevail in that State: Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law concerning the same matter
including a law adding to, amending, varying or repealing the law so made by
the Legislature of the State.

In Zaveri Bhai v State of Bombay [xxi], This case illustrates the application of
the provision to Clause. (2), Art. 254. The Parliament enacted an Essential
supplies Act, which provided penalties e.g. Imprisonment of up to 3 years. The
Bombay Legislature later passed an Act enhancing punishment up to 7 years,
The Act received Governor General's assent and became operative. After the
Bombay Act, amendments were made to Central Act by Parliament with
changes in punishment. The Supreme Court held that as both occupied the same
field, the Bombay Act was impliedly repealed by Parliamentary Act because of
repugnancy.

THE DOCTRINE OF SEPARATION OF POWER-

The doctrine of Separation of Power is the forerunner to all the constitutions of

the world which came into existence in the days of the Magna Carta. This
theory was propounded by Montesquieu. Montesquieu was under the erroneous
opinion that the Doctrine of Separation of power originated in Britain. But this
theory was first applied in American Constitution. This theory was published by
Montesquieu in his book: 'Espirit de Louis' which means 'Spirit of laws'.
Montesquieu found that if the power is concentrated in a single person's hands
then it results in a tyrannical form of government.

In Golaknath v State of Punjab[xxii], the court opined that 'the Constitution

brings into existence different constitutional entities namely the Union, the
State, and the Union Territories. It creates three major instruments of power
namely, the legislature, executive, and judiciary. It demarcates their jurisdiction
minutely and expects them to exercise their respective powers without
overstepping their limits. They should function within the sphere allotted to
them.

In Indira Nehru Gandhi v Raj Narain[xxiii], in this case, where the dispute
regarding PM Election was pending before SC, SC opined that adjudication of a
specific dispute is a judicial function that parliament even under constitutional
amending power cannot exercise, i.e. the Parliament does not have jurisdiction
to perform a function which the other organ is responsible for, otherwise, there
will be chaos as there will be overlapping of the jurisdiction of three organs.

THE DOCTRINE OF INCIDENTAL AND ANCILLARY POWERS-

It is a supplement to the Pith and Substance philosophy. Along with the right to
vote on a topic, it also encompasses the right to act on related issues. It does not
suggest that the authority can be extended beyond what is acceptable.

In R M D Charbaugwala v. State of Mysore [xxiv], the Supreme Court

recognized that while gambling and betting are state subjects as mentioned in
the State list, the ability to levy taxation on these activities is not included
because it is listed separately in the same list.

In Prafulla Kumar Mukherjee v. The Bank of Commerce [xxv], it is stated

that case that any item on the union list may be impacted by issues the state
assembly is working with. The court determined that such a case should be
added to the proper roster by its real nature and character.

DOCTRINE OF LACHES-
Lapses imply an interlude. The adage "Equity aids the vigilant and not those
who slumber on their rights" serves as the foundation for this statement. It
implies that if a lengthy wait in claiming a legal right or claim has harmed the
opposing party, the right or claim will not be maintained or allowed.

Anyone seeking redress must appear before the judge within a fair amount of
time. It is unclear if Article 32 permits the denial of basic rights on the grounds
of delay. Fundamental rights cannot be refused solely due to a delay because
that would be unfair. For the growth of the person, it is essential.

In Ravindra Jain v. Union of India, the Supreme Court stated that the recourse
under article 32 may be refused based on excessive delay. However, there hasn't
been a case to have the Supreme Court ruling overturn the aforementioned case
legislation.

THE DOCTRINE OF COLOURABLE LEGISLATION-

It is founded on the principle of division of powers. The principle of separation
of powers requires balancing the authority of the various governmental organs.
The axiom "What cannot be done directly, cannot also be done indirectly"
serves as its foundation. This concept of colourable legislation is used when a
legislature obliquely creates a law despite not having the authority to do so on a
given topic. The Court has established specific criteria for determining whether
a specific Act qualifies as colourable law.

The judge must focus on the law's actual content rather than its shape or title, as
determined by the lawmakers.
Both the goal and the law's impact must be taken into consideration by the
judge.
If the legislature follows a legislative plan, the judge must study every law that
makes up the plan to assess its overall imp

In K.C.G Narayan Dev V State of Orissa[xxvi], it was stated that "If the
Constitution of a State distributes the legislative powers amongst different
bodies, which have to act within their respective spheres marked out by specific
legislative entries, or if there are limitations on the legislative authority in the
shape of fundamental rights, questions do arise as to whether the legislature in a
particular case has or has not, in respect to the subject-matter of the statute or in
the method of enacting it, transgressed the limits of its constitutional powers".

In the State of Bihar V kameshwar Singh[xxvii], it is the only case where a

law has been declared invalid on the ground of colourable legislation. In this
case, the Bihar Land Reforms Act, of 1950, was held void on the ground that
though apparently, it purported to lay down any such principle and thus
indirectly sought to deprive the petitioner of any compensation.

DOCTRINE OF JUDICIAL REVIEW-

It has American roots. The judicial branch's authority to read the law and
invalidate legislation that conflicts with the constitution is referred to as the
"doctrine of judicial review." This theory states that the judiciary has the
authority to examine decisions made by the executive and the legislature. Its
purpose is to monitor how public authorities-whether municipal, quasi-judicial,
or constitutional-exercise their authority.

For instance, the judiciary has the authority to overturn legislation if its
constitutionality is questioned after it has been passed. In other words, the court
is watching over the Constitution and defending it against any Executive or
Legislative actions that might contravene it. The Judicial Review authority is
exercised by the Supreme Court and the High Court. However, India's Supreme
Court has the ultimate say in deciding whether legislation is legitimate.

It is possible to perform it regarding all federal and state statutes, administrative

orders and regulations, and constitutional changes. Regarding the rules listed in
Schedule 9 of the Indian Constitution, it cannot be done.

Principles of Interpretation of Entries

● Entries should be given the widest possible interpretation.
● Entry in one list cannot be so read to make an entry in another list in effective
● Specific entry will prevail over the general list.
● Entries on a subject will also include all the incidental powers (Doctrine of
Incidental
and Ancillary Powers).
● Parliament or State cannot make law on the entries of the other list (Doctrine
of Ultra
Vires).
● Whenever there is any conflict in laws made by Union and the State, the
Union Law will
prevail over the State Law and the State Law will be considered as void to the
extent to
its conflict with Union Law.
● However, rather than declaring one law as void, which has come through a
lengthy
legislative process, the aim is to always reconcile both the laws by avoiding the
conflict.
If it is not possible to save both laws only then one is declared as void. (derived
from
Presumption of Validity)
● For saving the two laws there can be different doctrines of interpretation
applied to these
laws, for eg. Reading one law narrowly than the other and thereby saving the
scope of
both laws.

Revocation of Special Status of Jammu and Kashmir

● Article 370 is still alive, the special status of Jammu and Kashmir has been
revoked.
Schedule - Things are added by notification by the government
Act - Amended by the legislature
Transitional Power
It protects the pre-constitutional laws to facilitate the transition to constitutional
laws. It cures the
defect to save it from being invalid.
Article 370(3) - Notwithstanding anything in the foregoing provisions of this
article, the
President may, by public notification, declare that this article shall cease to be
operative or shall
be operative only with such exceptions and modifications and from such date as
he may specify.
Provided that the recommendation of the Constituent Assembly of the state
referred to in clause
(2) shall be necessary before the President issues such a notification.
This provision gives three options to bring change in Article 370:
1. 2. 3. As there no longer exists a Constituent Assembly, Article 370 is
permanent.
In order to amend Article 370, the Constituent Assembly must be revived.
Amendment will follow the regular procedure under Article 368.
● In November 2018, the State Legislative Assembly was dissolved by the
Governor. This
brought in President’s Rule in the state. With the legislative assembly dissolved,
Governor now acted on behalf of the government of the state.
● Using Article 370(1) Proviso 1, the Governor (now acting as the government
of the state)
advised the President to make laws for the state.
● The President brought in Constitutional Order 272.
Constitutional Order 272
In exercise of the powers conferred by clause (1) of article 370 of the
Constitution, the President,
with the concurrence of the Government of State of Jammu and Kashmir, is
pleased to make the
following Order:—
1. (1) This Order may be called the Constitution (Application to Jammu and
Kashmir) Order,
2019.
(2) It shall come into force at once, and shall thereupon supersede the
Constitution (Application
to Jammu and Kashmir) Order, 1954 as amended from time to time.
2. All the provisions of the Constitution, as amended from time to time, shall
apply in relation to
the State of Jammu and Kashmir and the exceptions and modifications subject
to which they
shall so apply shall be as follows:–
To article 367, there shall be added the following clause, namely:―
“(4) For the purposes of this Constitution as it applies in relation to the State of
Jammu and
Kashmir–
(a) references to this Constitution or to the provisions thereof shall be construed
as references to
the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on
the
recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat
of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the State for the
time being in
office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as
including references to
the Governor of Jammu and Kashmir acting on the advice of his Council
of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression
“Constituent
Assembly of the State referred to in clause (2)” shall read “Legislative
Assembly of the State”.”
Constitutional Order 273 operationalizes the abrogation of special status by
extending the
jurisdiction of central government to all subjects of List I and III; thereby
equating the status of
Jammu and Kashmir to any other state of India.
The Abrogation of Article 370 opens up the use of Article 1 to facilitate the
Jammu and Kashmir
Reorganization Act, 2019.
Justification:
In the case of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, a
challenge was
made to the validity of the Jammu & Kashmir Preventive Detention
(Amendment) Act, 1967, in
the Supreme Court of India. The key issue was whether the amendment was
valid because it did
not obtain the consent of the Sadar-i-Riyasat (formerly the elected Head of the
State of Jammu &
Kashmir) as required by the Constitution. In 1965, a constitutional amendment
replaced the
Sadar-i-Riyasat's office with that of the Governor, who was to act on the advice
of the Council of
Ministers.
The challenge also involved the Constitution (Application to Jammu &
Kashmir) Second
Amendment Order, 1965, which modified Article 367 in relation to Jammu &
Kashmir. This
order clarified that references to the Sadar-i-Riyasat should be construed as
references to the
Governor. The petitioners argued that this was effectively an indirect
amendment of Article 370,
which was not permissible.
The Court rejected this argument, ruling that the 1965 amendment was
clarificatory and not a
modification of Article 370. The Court held that the office of the Governor had
succeeded and
replaced the office of the Sadar-i-Riyasat, even though the Governor was not an
elected official.
Therefore, the Governor had the authority to provide assent to the Jammu and
Kashmir
Preventive Detention (Amendment) Act, 1967.