Mohammad Shafi Qureshi and Others vs The District Magistrate and Another

J.N. Wazir, C.J.—This is a petition u/s 103 of the Constitution of Jammu and Kashmir for issuing an appropriate writ for quashing the order

passed by Respondent No. 1 under Rule 50 of the Jammu and Kashmir Security Rules read with Cabinet Order No. 708-C of 1953 dated 26th

June, 1953 and for striking down the rule under which the order was made, being ultra vires the Constitution. The petition was filed on 3rd

September, 1963 and the District Magistrate alone was cited as Respondent. Permission was sought to amend the petition and the amended

petition was filed on the. 3th September, 1963, in which the State of Jammu and Kashmir also was made Respondent.

The facts which have led up to the petition, briefly stated, are as follows:

The Petitioners, Mohammad Shafi Qureshi ad- vocate, Moh'd Abdulla . Pal and Munshi Mohi-ud-Din Salathi, Editor Paigam have stated that

Bakshi Ghulam Mohammad the Premier of the State in implementation of the Kamraj Plan had forwarded his resignation to Pt. Jawahar Lai

Nehru. It is alleged that Bakshi Ghulam Mohammad did not expect that his resignation would be accepted but when it was accepted he did not

like to relinquish premiership of the State, that in order to undo the effect of his resignation he got several public meetings arranged, wherein

withdrawal of his resignation was urged. These according to the Petitioners were State-managed shows. Some of the National Conference

workers forced (sic) keepers to close their shops and coerced them to participate in manoeuvred demonstrations against Bakshi Ghulam

Mohammad's resignation. There was an imminent danger of breach of peace at the doings of the National Conference workers but the

Respondents did nothing to prevent that. The Petitioners along with some of their colleagues tried to pacify the people and helped them to express

their approval of Pandit Nehru's decision in recommending the acceptance of Baksbi Ghulaxn Mohammad's resignation. The Petitioners sought

permission of the Respondent No. 1 to hold meetings on specified dates in various parts of Srinagar to seek the approval of the action of Pandit

Nehru in recommending the acceptance of Bakshi Sahib's resignation. The members of the National Conference, according to the Petitioners, got

unnerved and 'made, the' Respondent No. 1 to refuse permission to the Petitioners to hold any public meeting 1 on ' the ground that there was '

apprehension of v. breach of peace. The Petitioners were prohibited from organising, addressing or taking part in any f; public meeting, assembly

or procession. This order was passed on 31st August, 1963, by the District Magistrate under Rule 50 of the Jammu and Kashmir Security Rules

read with Cabinet Order No. 708-C 1953 dated 25th June, 1953. The Petitioners challenged the validity of the rule and the order of the District

Magistrate made there under.

In reply to this petition the Respondents averred that on receipt of the applications from the Petitioners reports were called from the concerned

police who reported that feelings of certain political parties in particular and the public in general had already been injured by the provocative

speeches delivered by the Petitioners who wilfully intended to disturb the public peace and tranquillity and if public meetings were allowed to be

held by the Petitioners there was a likelihood of serious breach of peace. The District Magistrate denied the fact that any pressure was brought to

bear upon him from any quarter to refuse the permission sought for It was further stated by him that he refused permission for holding the meetings

purely in the interest of public safety and order and not for any collateral or ulterior reason. He admitted that the permission was refused under

Rule 50 of the Jammu and Kashmir Security Rules read with Cabinet Order No. 708-C of 1953 dated 25th June, 1953. The allegations and

insinuations made in paragraph 6 of the petition were all denied.

Mr. O.N. Tiku appears on behalf of the Petitioners and the only point urged before us by him relates to the constitutional validity of Rule 50 of

the Jammu and Kashmir Security Rules which as appears from the preamble of the Emergency Provisions (Continuance) Ordinance, 2003 of

which the rule forms a part, was made to provide special measures to ensure public safety and maintenance of public order. It will be necessary to

reproduce here Rule 50 as well as the preamble of the Ordinance of which this rule forms a part.

The rule reads as under:

The Government may, by general or special order, prohibit, restrict or impose conditions upon the holding of or taking part in public processions,

x x x

x x x

The preamble of the Emergency Provisions (Continuance) Ordinance of 2003 as it originally stood was in these terms:

Whereas an emergency has arisen which makes it necessary to provide for the continuance and re-enactment of certain provisions of the Jammu

and Kashmir Defence Rules...

By Act No. VI of 2011 the Emergency Provisions (Continuance) Ordinance was amended and the amendment of the preamble of the Ordinance

No. 5 of 2003 reads as under:

To the preamble to the Emergency Provisions (Continuance) Ordinance, 2003 (hereinafter referred to as 'the said Ordinance') after the words,

'necessary to provide' the words 'in the interest of the security of the State,, public order and general public' shall be added.

Rule 50 is mentioned in Part IX of the Jammu and Kashmir Security Rules under the heading 'Public Safety and Order'. What is argued by Mr.

Tiku on behalf of the Petitioners is that Rule 50 of the Jammu and Kashmir Security Rules is ultra vires the Constitution inasmuch as it infringes the

Petitioners' fundamental right secured to them by Article 19 (1)(b) of the Constitution of India. Article 19(1) provides that all citizens shall have the

right; among Ors. , to assemble peaceably and without arms. These rights it may be noticed are not absolute or unqualified rights. Sub-clause (3)

of Article 19 provides

Nothing in Sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making

any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

It is conceded that the State can make a law imposing restrictions in the interests of public safety or order on citizens in respect of their enjoyment

of the right to assemble peaceably. But the grievance of the Petitioners is that the rule imposes not merely restrictions but totally prohibits the

exercise of the fundamental right by giving uncontrolled and untrammelled discretion to the executive to lay down restrictions prohibiting citizens

from assembling peaceably. The Ordinance was passed in the year 2003 and was amended front time to time. The declared object of the

Ordinance was as is clear from its preamble which was amended in 2011, to ensure public safety and maintenance of public order. It was

necessitated because of the emergency which obtained at that time and continued to exist in the State due to its abnormal political conditions. It is

well settled that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon those who challenge its

validity to show that it is ultra, vires the Constitution. In support of this view reliance may be placed on ln re Kerala Education Bill, 1957 AIR 1958

SC 956 wherein it is laid down:

There is always a presumption 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 violation of the constitutional principles. The Courts must presume that 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 on adequate

grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those eases where the

(sic) ed is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration

matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived

existing at the time of legislation.

The same view was taken in Waverly Jute Mills Co. Ltd. Vs. Raymon and Co. (India) Private Ltd., .

The learned Counsel for the Petitioners argued that the rule gives unfettered and uncontrolled discretion to the State Government or to the

officer authorised by it in the exercise of the wide powers given by it. It is said that there is no provision in the body of the rule to guide or control

the action of the executive and therefore the rule imposes unreasonable restrictions and is ultra vires the Constitution. It is true that in the body of

the rule we do not find anything to show as to what is the purpose and object of the rule and what are the limitations imposed on the executive to

enforce the rule. But the preamble of the Ordinance and heading of . the Fart in which the rule exists give sufficient indication in regard to the

purpose for which the rule is meant and also prescribe limits and scope within which the discretion has to be exercised by the executive or the

officer authorised to enforce the rule. It is well settled that the preamble and the heading of the Act can be taken into consideration, in ascertaining

the legislative policy and the ambit and character of the Act. In this connection reliance may be placed on Harishankar Bagla and Another Vs. The

State of Madhya Pradesh, , in which it has been observed:

... the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the

details of that policy can only be worked out by delegating them to a subordinate authority within the frame-work of that policy.

In Kavalappara Kottarathil Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 it has been f held that the preamble of a statute is ""a kev

to the understanding of it"" and it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may haw more than

one, or to keep the effect of the statute within its real scope, whenever the enacting part is in any of these respects open to doubt. In Bachu

Mallikarjuna Rao Vs. The Official Receiver and Others, it has been observed as follows:

In different parts of an Act there are to be found classes of enactments applicable to some special object. Such enactments are in many instances

preceded by a heading, special 110 doubt in me sense, as addressed to the object or purpose, but where not otherwise provided for, general in

1964 J. & K. D.F/2(2) & 8(1) its application to the enactments passed to accomplish the object. These various headings are not to be treated as if

they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of

the Act itself. They may be read not only as explaining the sections which immediately follow them as a preamble to a statute may be looked to, to

explain its enactments, but as affording a better key to the construction of the sections which follow than might be afforded by a mere preamble.

The key words of the preamble of the Emergency Provisions (Continuance) Ordinance, 2003 as amended is 20 II and the heading of the Chapter

in which rule appears are that the order under the impugned rule should be made whenever the authority considers such provision to be necessary

for the preservation of public order and only for SO long as it considers such preservation to be necessary in the interests of public order. There is,

therefore, a clear indication from the preamble of the Ordinance and the heading of the rule that restrictions can be imposed by the executive under

certain conditions and these restrictions are not uncontrolled and unguided. The executive has to be satisfied that it is necessary for the preservation

of public order to prohibit meetings. It is a great safeguard for a citizen that restrictions can only be imposed when the executive is satisfied that

such imposition is necessary for the preservation of public order and that the restrictions should last only for a short period till the emergency is

over.

It is argued that the rule, as it stands, may be misused and unreasonable restriction be imposed on the public in regard to their right to assemble

peaceably. Misuse of the rule is one thing and its being unconstitutional is Anr. . We are here concerned with the latter aspect only. The authority

exercising power of imposing restrictions under, the impugned rule is a responsible officer of the status of District Magistrate and it is presumed that

he will exercise his discretion legitimately and honestly and the rule cannot be struck down on the ground that the Magistrate may possibly abuse

his powers.

It is further contended that the impugned rule constituted delegated legislation and therefore on that ground also it was void. We do not see

much force in this contention. From the preamble of the Ordinance and the heading of the rule, policy of the legislature is clearly indicated and it is

according to that policy that an order can be made by the authority empowered in this behalf. By no stretch of imagination, therefore, can it be said

that, the legislature has delegated legislative functions to the District Magistrate. Looking at the rule as a whole it would be clear that it is intended

to be availed of for preventing meetings in order to avoid breach of peace and to secure public order. In our opinion therefore the restriction is

imposed under the rule in the interests of public order and in the interest of general public upon freedom guaranteed to citizens under Article 19(1)

(b) of the Constitution and that restriction is a reasonable restriction and the impugned rule(sic)

(sic) by the District. Magistrate prohibited Petitioners from organizing public meetings is mala fide. The Petitioners have made certain

allegations in the petition that the order passed by the District Magistrate was mala fide inasmuch as there was no danger of breach of peace and

the restrictions imposed by the order were not justified. The District Magistrate has filed an affidavit mentioning therein that he called for report

from the police and the police informed him that there was likelihood of breach of peace if the Petitioners were allowed to hold meetings. The

District Magistrate as further stated in the affidavit that on the basis of the police report he passed the order banning meetings. Under these

circumstances, in our opinion, it cannot be said that the oulttr of the District Magistrate is mala fide.

For the reasons given above we find no force in this petition which is dismissed but in the circumstances we make no order as to costs.

J.N. Bhat, J.

I agree.