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S.M. Fazl Ali, C.J.—This is a petition for a wilt of Mandamus or prohibition restraining the respondent from realizing income tax dues from
the petitioner. The petitioner seeks to challenge the constitutionality and applicability of the Indian income tax Act as applied to Jammu and
Kashmir on various grounds. The petitioner has also challenged the validity and the enforceability of Article 370 of the Constitution of India
because it was under this Article that the Union List was applied and ultimately the income tax Act of 1922 was applied by Parliament to the State
by the Taxation Laws (Extension to Jammu and Kashmir) Act, 1954. The petition appears to be crowded with extracts from the speeches of
various political leaders from time to time and contains some political aspects of the matter. The case was argued by the petitioner in person but at
our suggestion he was good enough to confine his argument to the legal aspects of the questions involved In this case and he argued the case with
great industry and ingenuity.
Before enumerating the sub-missions made by the petitioner, it will be necessary to give a short historical background of the development of the
constitutional laws in the State. Like other independent States, Jammu and Kashmir was also an independent State under its Ruler. Maharaja Hari
Singh at the time the Indian Independence Act was passed creating the dominions of India and Pakistan. This Act was passed on 18-7-1947 and
clauses (b) and (c) of Section 7 of the Act are the specific provisions regarding the Indian States. These two provisions provide that the suzerainty
of His Majesty over the States had lapsed and with it all the treaties and agreements in force at the date of the passing of the Act. The relevant
portion of this provision may be quoted thus:-
The suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act
between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty existing at the date towards Indian States or the
rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty,
grant, usage, sufferance or otherwise; (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His
Majesty and persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to
the tribal areas, and all powers rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty,
grant, usage, sufferance or otherwise.
With the creation of the dominion of India the Law which was to be the constitution for the time being in force was the Government of India Act,
1935, as amended by the India (Provisional Constitution) Order, 1947, which amended certain provisions of the Government of India Act, 1935.
In the present case we are concerned with Section 6 of the order which substituted the original Section 6 of the Government of India Act, Section
6 of the Act provided for an Indian State to accede to one of the two dominions after executing an Instrument of Accession which would contain
the terms and conditions of accession and the matters over which the dominion would have jurisdiction. Section 6 also provided for the acceptance
of the Instrument of Accession by the Governor General. This Order was passed on 14-8-1947. A few months after the passing of this Order
tribal raiders sponsored by Pakistan attacked the State resulting in serious chaos and confusion as a result of which the Maharaja was compelled
to make an offer of accession to the Governor General of India. The offer of accession was made on 26-10-1947 along with an instrument of
accession which was accepted by the Governor General of India on 27-10-1947. Under the Instrument of Accession the Ruler had surrendered
control of only three subjects to the Dominion of India, namely, external affairs, communications and defence. It will be necessary, in order to
understand the argument of the petitioner, to quote the Instrument of Accession signed by the Maharaja in extenso:-
Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August 1947 there shall be set up an independent
Dominion known as India, and that the Government of India Act. 1935, shall, with such omissions, additions, adaptations and modifications as the
Governor General may by order specify, be applicable to the Dominion of India:-
And whereas the Government of India Act, 1935, as so adapted by the Governor General provides that an Indian State may accede to the
Dominion of India by an Instrument of Accession executed by the Ruler thereof:
Now, therefore, I Shriman......... Shri Hari Singh Ji......... ruler of Jammu and Kashmir State in the exercise of my sovereignty in and over my said
State do hereby execute this my instrument of Accession and
I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion legislature, the Federal
Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but
subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter
referred to as the State) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of
India, on the 15th day of August 1947, (which Act as so in force is hereinafter referred to as the Act).
I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this State so far as they are applicable
therein by virtue of this my Instrument of Accession.
I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this
State.
I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the
Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by
the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
The terms of this my Instrument of Accession shall not be varied by any amendment of the Act of the Indian Independence Act, 1947, unless
such amendment is accepted by me by Instrument supplementary to this Instrument.
Nothing in this instrument shall empower the Dominion legislature to make any law for this State authorising the compulsory acquisition of land
for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion law which applies in this State deem it necessary
to acquire any land, I will at their request acquire the land at their expense or, if the land belongs to me, transfer it to them on such terms as may be
agreed or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion
to enter into arrangements with the Government of India under any such future Constitution.
Nothing in this instrument affects she continuance of my sovereignty in and over this State, or, save as provided by or under the instrument, the
exercise of any powers, authority and lights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
I hereby declare that I execute this instrument on behalf of the State and that any reference in this instrument to me or to the Ruler of the State is
to be construed as including a reference to my heirs and successors.
Given under my hand this 26th day of October nineteen hundred and forty seven.
Hari Singh,
Maharajadhiraj of Jammu & Kashmir State.
The Governor General, after accepting the Instrument of Accession responded to the appeal for military aid made by the Maharaja in his letter
of 26th October, 1947 addressed to the Governor General of India, in order to defend the territory of the State and protect the lives and property
of the citizens. The acceptance of accession was made in the following terms:-
Your Highness' letter dated 26th October has been delivered to me by Mr. V.P. Menon. In the special circumstances mentioned by your Highness
my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case
of any State where the issue of accession should be decided in accordance with the wishes of the people of the State, It is my Government's wish
that as soon as law and order have been restored and her soil cleared of the invader the question of the State's accession should be settled by a
reference to the people.
Meanwhile, in response to your Highness' appeal for military aid action has been taken today to send troops of the Indian army to Kashmir to help
your own forces to defend your territory and to protect the lives, property and honour of your people............
It is true that while accepting accession, the Governor General of India mentioned the fact that the question of accession would be decided in
accordance with the wishes of the people of the State as soon as law and order had been restored, but it must be borne in mind that no particular
mode or form of ascertaining the wishes of the people was indicated in the letter of acceptance. The petitioner tried to challenge the accession of
the State to India because, according to him, the conditions mentioned in the letter of acceptance were not fulfilled. This is, however, a purely
political aspect and we are not concerned with it. Suffice it to say that subsequently a Constituent Assembly consisting of the elected
representatives of the people of the State was convened to frame a Constitution for the State. Thus the wishes of the people were fully ascertained
as promised by the Governor General in the shape of election of the representatives of the people who framed the present Constitution of the
State. On 5th March 1948 the Maharaja under pressure of the people issued a proclamation by forming a responsible Government of a Council of
Ministers headed by a Prime Minister which would take steps to constitute a national Assembly based on adult franchise to form a separate
Constitution for the State, The relevant part of the proclamation may be quoted as under:-
I accordingly hereby ordain as follows:-
My Council of Ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I
have by Royal Warrant appointed S.M. Abdullah as the Prime Minister. With effect from today.
x x x x
My Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National
Assembly based upon Adult suffrage, having due regard to the principle that the number of representatives from each voting area should as far as
practicable, be proportionate to the population of that area.
The Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions
guaranteeing freedom of conscience, freedom of speech and freedom of Assembly.
The National Assembly shall, as soon as the work of framing the new Constitution is completed, submit it through the Council of Ministers for
my acceptance.
(Vide Jammu and Kashmir Government Gazette Part 1-B extraordinary dated 23rd Phagon 2004 dated 1-3-1948.) On 20th June 1949 Maharaja
Sri Hari Singh proceeded on leave for a temporary period on grounds of health and entrusted all the legislative, executive and Judicial functions to
his son Yuvaraj Karan Singh. This proclamation runs thus:-
Whereas I have decided for reasons of health to leave the State for a temporary period and to entrust to Yuvaraj Shri Karansingh ji Bahadur for
that period all my powers and functions in regard to Government of the State.
Now, therefore, I hereby direct and declare that all powers and functions, whether legislative, executive or judicial which are exercisable by me in
relation to the State and its Government, including in particular my rights and prerogative of making laws, of issuing proclamations, orders and
Ordinances, of remitting commuting or reducing sentences, and of pardoning offenders, shall during the period of my absence from the State be
exercisable by the Yuvaraj Shree Karansingh Ji Bahadur.
(Vide Jammu and Kashmir Gazette dated 20th June, 1949.) On 25th November 1949 another proclamation was issued by Yuvraj Karan Singh
directing that the Constitution of India be adopted by the Constituent Assembly inasmuch as it was applicable to the State of Jammu and Kashmir
in order to govern the relationship of this State and the contemplated Union of India. The relevant part of this proclamation runs thus:-
.....I now hereby declare and direct that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall In so far as it is
applicable to the State of Jammu & Kashmir, govern the constitutional relationship between this State and the contemplated Union and shall be
enforced in this State by me, my heirs, and successors In accordance with the tenor of its provisions.
That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions
inconsistent therewith which are at present in force in this State.
(Vide White Paper on Indian States Issued by the Government of India, Ministry of States, page 371).
In pursuance of the directive contained in the aforesaid proclamation the first Constitution (Application to Jammu and Kashmir) Order 1950 was
promulgated by the President of India under clause (1) of Article 370 of the Constitution of India. This order regularised the subjects whose
control had been surrendered to the Government of India by the Maharaja by mentioning the entries relating to these three subjects in the first
schedule. The order also applied the provisions of Articles 1 and 370 of the Constitution of India to the States. On 20-4-1951 Yuvraj Karansingh
issued another proclamation for the purpose of convening a Constituent Assembly, the relevant portion of which runs thus:-
I, Yuvraj Karansingh do hereby direct as follows:-
A Constitueut Assembly consisting of representatives of the people elected on the basis of adult franchise shall be constituted forthwith for the
purpose of framing a Constitution for the State of Jammu and Kashmir.
(Vide Jammu and Kashmir Government Gazette No. 22 dated 1-5-1951.)
In obedience to this proclamation a Constituent Assembly was convened for the first time on 5-11-1951 as mentioned by petitioner in paragraph
13 of his amended petition. On 15-2-1954 the Constituent Assembly passed a resolution adopting the report of the drafting committee and the
annexure thereto and thus by doing so, the Assembly gave its concurrence to the application of certain provisions of the Constitution of India to the
State in the manner indicated in the annexure. The Resolution of the Constituent Assembly (supra) may be quoted thus-
Resolved that (a) having adopted the report of the Drafting Committee this day, the 15th February 1954 and (b) having thus given its concurrence
to the application of the provisions of the Constitution of India in the manner indicated in the Annexure to the aforesaid report this Assembly
authorise the Government of the State to forward a copy of the said Annexure to the Government of India for appropriate action.
Note:- The resolution was adopted unanimously.
On 12-5-1954 the communication of the resolution passed by the Constituent Assembly was received by the Government of India, and in
pursuance of the same the Constitution (Application to Jammu and Kashmir) Order 1954 was passed on 14-5-1954. It may be stated here that
this order adopted in toto annexure to the report of the drafting committee which was approved by the Constituent Assembly. Thus in passing this
order the President gave effect to the recommendation made and the proposal sponsored by the Constituent Assembly. By clause 22 of this order
the Union List appearing in the 7th Schedule of the Constitution of India was applied with certain modifications. If may also be mentioned here that
so far as Entry No. 82 of the Union List 7th Schedule is concerned, which is in regard to taxes on income on properties other than income on
agricultural property, it was also applied in toto. Article 246 of the Indian Constitution was also applied to the State with certain modifications, and
by virtue of this Article the Parliament was given an absolute power to legislate on matters regarding taxes on income other than agricultural
income. Thereafter in exercise of this power conferred on the Parliament it passed the Taxation Laws (Extension to Jammu and Kashmir) Act,
1954. On 8-10-1954 by which the income tax Act of 1922 was applied to the State and since then all the subsequent amendments made in this
Act have also become applicable to the State.
Having given the history of legal and the constitutional development in the State, we will now proceed to deal with the submissions made by the
petitioner in support of the petition. To begin with, the petitioner assailed the constitutionality of Article 370 itself on two grounds. In the first place
he submitted that since Article 394 of the Constitution of India which is the only enforcing provision does not apply to Jammu and Kashmir, Article
370 which is included in that provision was never enforced nor did it become operative in the State, and remained a dead letter on the statute
book. Secondly it was submitted that Art. 370 was merely a transitory provision which was to subsist until the Constituent Assembly of the State
framed its own Constitution. Thus after the State Constitution was framed in 1956, Article 370 became inoperative and no further legislation could
be applied to the State including the amendments to the income tax Act.
As regards the first argument it was rightly pointed out by the learned Solicitor General that Article 370 is a self-applying Article and applies ex
proprio vigore without having to depend on any other Article of the Constitution of India for its enforceability. Article 370(1)(a) runs as follows:-
Notwithstanding anything In this Constitution (a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir.
Thus clause (a) clearly says that Article 238 shall not apply to the State of Jammu and Kashmir but impliedly Article 370 applies straightway.
Furthermore it would appear from the Constitution (Application to Jammu and Kashmir) Order of 1950 which was passed in consonance with the
proclamation of Yuvrai Karansingh for enforcement of the Constitution that by clause (3) Arts. 1 and 370 were clearly applied to the State of
Jammu and Kashmir. Clause (3) of the said order runs thus:-
In addition to the provisions of Article 1 and Article 370 of the Constitution, the only other provisions of the Constitution which shall apply in
relation to the State of Jammu and Kashmir shall be those specified in the Second Schedule to this order, and shall so apply subject to the
exceptions and modifications specified in the said schedule.
Furthermore in the second schedule appended to this Order Part XXII of the Indian Constitution has been applied in toto without any exceptions
and modifications. Article 394 is contained in Part XXXI. It would thus appear that Article 394 was applied without any modifications and
therefore It follows that Article 370 started applying to the State at least from the date when this order was passed namely, 26-1-1950.
It was however, argued that by the Constitution (Application to Jammu and Kashmir) Order 1954, Article 394 which was applied by the 1950
Order, was deleted and therefore Article 370 having been enforced in 1950 ceased to be enforceable in 1954. It seems to us that this argument is
utterly misconceived. Once Article 370 became enforceable there was no question of its having ceased to apply even if Article 394 was
subsequently deleted, In fact since Article 370 applied ex proprio vigore it was not necessary at all to apply Article 394 by the 1950 Order and
when it was realized that the application of Article 394 to the State was redundant, it was deleted by the Constitution (Application to Jammu and
Kashmir) Order of 1954.
It was then submitted that Article 370 was merely a transitory provision which ceased to operate after the Constituent Assembly met and
framed a Constitution of its own. We are not impressed with this argument because even if it was a transitory provision, the Constituent Assembly
fully endorsed the application of Article 370 and in its resolution dated 15-2-1954 if recommended to the Government of India for continuing
application of Article 370. We are fortified in our view by a decision of the Supreme Court in Sampat Prakash Vs. The State of Jammu and
Kashmir and Another, at pages 1122, 1123, where a similar argument addressed to their Lordships was rejected and their Lordships made the
following observations:-
We are not impressed by either of these two arguments advanced by Mr. Ramamurthy. So far as the historical background is concerned, the
Attorney General appearing on behalf of the Government also relied on it to urge that the provisions of Article 370 should be held to be continuing
in force because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of
Introducing this articles was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained
unchanged. There Is considerable force in this submission. The legislative history of this article cannot, in these circumstances, be of any assistance
for holding that this article became ineffective after the Constituent Assembly of the State had framed the Constitution for the State.
x x x
There are, however, much stronger reasons for holding that the provisions of this article continued in force and remained effective even after the
Constituent Assembly of the State had passed the Constitution of the State. The most important provision in this connection is that contained in
clause (3) of the article which lays down that this article shall cease to be operative or shall be operative only with such exceptions and
modifications and from such date, as the President may specify by Public notification, 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 clause clearly envisages that
the article will continue to be operative and can cease to be operative only, if on the recommendation of the Constituent Assembly of the State, the
President makes a direction to that effect. In fact no such recommendation was made by the Constituent Assembly of the State, nor was any
Order made by the President declaring that the article shall cease to be operative.
x x x
This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact,
expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification
only.
Further reference may also be made to the proviso added to Article 368 of the Constitution in its application to the State of Jammu and Kashmir,
under which an amendment to the Constitution made in accordance with Article 368 is to have no effect in relation to the State of Jammu and
Kashmir, unless applied by order of the President under clause (1) of Article 370. The proviso thus clearly requires that the powers of the
President under Article 370 must be exercised from time to time in order to bring into effect in Jammu and Kashmir amendments made by
Parliament in the Constitution in accordance with Article 368. In view of these provisions, it must be held that Article 370 of the Constitution has
never ceased to be operative and there can be no challenge on this ground to the validity of the Orders passed by President in exercise of the
powers conferred by this Article.
Lastly Article 394 merely lays down the commencement of the various Articles of the Constitution. Assuming that it did not apply to Jammu and
Kashmir, the position will be that so far as the State of Jammu and Kashmir is concerned, Article 394 will be non-existent. But that does not make
the provisions of the Constitution of India unenforceable. If there is no provision relating to the commencement of a particular provision, then the
provision would apply the moment it is notified in the Gazette and this was done on 26th January 1950. Therefore Article 370 would start applying
to the State of Jammu and Kashmir as soon as the Constitution was notified on 26-1-1950. For these reasons therefore the two arguments raised
by the petitioner challenging the validity of Article 370 are overruled.
It was then contended by Mr. Naqashbandi that by virtue of the Instrument of Accession the Ruler had surrendered only three subjects to the
Government of India, namely, defence, communications and external affairs, and under the terms and conditions of the Instrument of Accession the
Government of India could not exercise any control which fell beyond the Instrument of Accession, unless the Ruler executed a supplementary
Instrument of Accession by conferring powers on the Government of India regarding these subjects. Reliance was placed by Mr. Naqashbandi on
paras 5 and 7 of the Instrument of Accession which may be quoted thus:-
The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless
such amendment is accepted by me by instrument supplementary to this instrument.
Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion
to enter into arrangements with the Government of India under any such future Constitution.
It was then argued that unless the Ruler accepted the application of subjects not mentioned in the Instrument of Accession, those subjects could
not be legislated upon by the President under Article 370 or by the Parliament under Article 246. The Solicitor General repelled this argument of
Mr. Naqashbandi on the ground that the Instrument of Accession was an agreement between the Ruler and the Governor General and was
therefore an act of the State. In these circumstances the terms, conditions, rights and liabilities arising under this Agreement could not be enforced
by the Municipal Courts. In support of this submission he relied upon a decision of the Supreme Court in Firm Bansidhar v. State of Rajasthan,
AIR 1967 SC 40 at page 42 where their Lordships observed as under:-
It is now well established in law that the contractual liability of a former State is binding on a succeeding sovereign State only if it recognizes that
contractual liability. The reason is that the taking over of sovereign powers by a State in respect of territory which was not till then a part of it is an
'act of State' and the municipal courts recognized by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights
as the new sovereign has chosen to recognize or acknowledge; and such recognition may be express or implied from circumstances. In other
words, accession of one State to another is an 'act of State' and the subjects of the former State may claim protection of only such rights as the
new sovereign recognises as enforceable by the Courts.
In our opinion the observations of their Lordships in the aforesaid case furnish a complete answer to the argument of Mr. Naqashbandi.
Moreover in clause (4) of the Instrument of Accession the Ruler clearly provided that any future agreement between the Government of India and
the Ruler of the State would be deemed to form part of the Instrument of Accession. The ruler, Maharaja Hari Singh delegated his entire powers
to Yuvaraj Karansingh by virtue of the proclamation dated 20-6-1949 (supra) and Yuvaraj Karan Singh by his proclamation dated 25-11-1949
directed that the Constitution of India be applied to the State as far as it was practicable. Thus these two agreements amounted to a subsequent
agreement between the Ruler and the Government of India and would be deemed to form part of the Instrument of Accession under clause (4) of
that document.
It was then argued by the petitioner that the applicability of the Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, was void and
unconstitutional inasmuch as the conditions mentioned in Article 370 for application of these Acts to the State were not fulfilled. In amplification of
his argument the petitioner drew our attention to Article 370 (2) which runs thus:-
If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-
clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be
placed before such assembly for such decision as it may take thereon.
and submitted that since the Act (supra) was regarding a matter not covered by the Instrument of Accession even after the Government of Jammu
and Kashmir had given its concurrence, it was necessary to get the concurrence of the State Government ratified by the Constituent Assembly
before the Act could become a valid piece of legislation. It was argued that at the time the Act was applied the Constituent Assembly was already
in session and had not framed the Constitution and therefore it was obligatory on the part of the Government of India to comply with this provision
before passing the Act. In our opinion, however, this argument appears to be without substance. In the first place a careful perusal of Article
370(2) would show that the ratification of the Constituent Assembly was necessary only if the concurrence of the Government was given at a point
of time before the Constituent Assembly was convened, and not at the time after the Constituent Assembly had started functioning. In the present
case the State Government had given its concurrence to the Constitution (Application to Jammu and Kashmir) Order 1954 by which all the entries
contained in the Union List were applied to the State at a time when the Constituent Assembly had already started functioning and was in the
process of framing its Constitution. In these circumstances Article 370(2) was not called into operation at all and the ratification by the Constituent
Assembly was not necessary. Furthermore we have already seen that by virtue of a resolution passed by the Constituent Assembly itself on 15-2-
1954, the Constituent Assembly not only recommended but actually sponsored the application of the constitutional provisions contained in the
Order of 1954 and that being the position there was no point in getting it ratified by the Assembly. When the Assembly itself had sponsored the
application of the constitutional provisions, there was a sufficient compliance with Article 370(2).
It was then suggested that Article 370 of the Indian Constitution ceased to be operative in view of the explanation to this Article which runs
thus:-
For the purposes of this article. the Government of the State means the person for the time being recognized by the President as the Maharaja of
Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth
day of March 1948.
The argument was that as the Explanation contains the words 'Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers',
the concurrence of the Sadar-i-Riyasat was not a sufficient compliance of Article 370. This argument also appears to be wholly untenable because
the Explanation was amended by Order No. CO. 44 of 15th November 1952 by which the Explanation was couched in the following language:-
For the purposes of this Article, the Government of the State means 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.
It is true that at the present moment there is no Sadar-i-Riyasat but there is a Governor, but in considering the validity of the Act we have to look
to the point of time when the Act was passed and at that time the Head of the State was designated as the Sadar-i-Riyasat and not Governor.
Therefore, there does not appear to be any infirmity in the Act on this score.
It was then argued that the Constitution of the State framed by the Constituent Assembly does not contain any provision for enlarging the area
of accession contained in the terms and conditions of the Instrument of Accession, nor does Section 5 of the State Constitution empower the
President to apply Central laws to the State. This argument, in our opinion, is based on a serious mis-conception of the constitutional position. We
have already observed that by virtue of the Order of 1954, Article 246 was applied and the power to legislate regarding matters contained in the
Union List was conferred on the Parliament by application of the entries in the Union List. Thus the area of accession if any was already enlarged
on the recommendation of the Constituent Assembly and the directives given by the Ruler even before the State Constitution was framed. In these
circumstances therefore, there was no question of giving further powers to the Parliament by the State Constitution. Apart from this, the State
Constitution could not possibly govern the provisions of the Constitution of India so as to confer certain powers on the Parliament and Section 5 is
merely confined to matters over which the State Legislature can legislate and is wide in its extent because most of the entries in the Concurrent List
have not been applied to the State. This argument is therefore overruled.
It was then argued that the power conferred on the President under Article 370 suffers from the vice of excessive delegation of powers. We
are, however, unable to agree with this argument. It is true that Article 370 confers certain powers on the President to apply various Articles of the
Constitution of India to the State under certain circumstances, but this power cannot be said to be absolute or uncanalized so as to violate Article
14 of the Constitution of India, for the following reasons:-
(1) Article 370 has been continued with the consent of the Constituent Assembly which framed the State Constitution.
(2) The power of the President to apply the constitutional provisions is circumscribed by the fact that the concurrence of the State Government has
to be taken before the constitutional provisions can apply.
(3) The power to apply the Articles of the Constitution of India to the State is vested in the highest authority in the whole country namely the
President of India and it must be presumed that the President would act constitutionally.
In these circumstances therefore we are unable to agree with the arguments advanced by the petitioner on this ground.
Lastly it was argued that the State income tax Act being a valid law within the meaning of Article 372 was saved by clause (8) of the
Instrument of Accession and the Parliament had no jurisdiction to repeal this law. The argument is interesting but on closer scrutiny it appears to be
without any substance. It is true that so long as the Parliament did not have the power to legislate on income tax matters in the State, the State Act
would be a good and valid piece of legislation, but once the field of legislation of income tax was transferred to the Parliament from the State
legislature, then two contradictory statutes in the same field could not be allowed to continue. In other words the moment the Parliament passed the
Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, it resulted in an automatic repeal of the State income tax Act, because the legislative
field covered by Entry 82 of the Union List having been transferred to the Parliament, the State could no longer exercise any legislative functions
over the same. Thus the State income tax Act became dead when the Parliament passed an Act on an identical subject.
For the reasons given above, all the contentions raised by the petitioner fail. The petition is dismissed but in the circumstances without any
order as to costs.
J.N. Bhat, J.
I agree.