Jammu And Kashmir High Court Upholds Validity Of "Egress And Internal Movement (Control) Ordinance, 2005", Sets Aside Magistrate's Reference Order

The Jammu and Kashmir High Court, Srinagar Bench on Friday upheld the validity of the Egress And Internal Movement (Control) Ordinance, 2005 while setting aside the reference made by the Judicial Magistrate First Class expressing doubts about its validity.

Single Judge Bench comprising of Justice Sanjay Dhar observed that the said Ordinance, being a duly promulgated law, issued by the Ruler of the Princely State of Jammu and Kashmir in exercise of powers under sec. 5 of the Jammu and Kashmir Constitution Act, 1996, is a valid piece of legislation.

About the Ordinance

The Ordinance was promulgated by the Ruler of Princely State of J&K in exercise of powers under sec. 5 of J&K Constitution Act, 1996 by publication in the Official Gazette.

The Long Title of the Ordinance reads "An Ordinance to control egress from or movement within the Union territory of Jammu and Kashmir of persons for the time being in the Union territory of Jammu and Kashmir."

The said ordinance is one of the several special laws left untouched with the enactment of Jammu and Kashmir Reorganization Act, 2019 for the purpose of ensuring safe and security in the UTs.

About the Reference

The reference arose out of a challan issued by the Tangmarg police station against 4 accused persons, two male and their wives of foreign origins, who had crossed over to Pakistan for receiving arms training and thereby returned back to J&K. The said accused were chargesheeted under sec. 3 of the Ordinance and sec. 14 of the Foreigners Act.

Sec. 3 of the Ordinance provides for the punishment for contravening the order made by the Government of UT of J&K notifying that any person or class of persons shall not proceed to a destination outside the UT or move within the territory from one place to another, thereby controlling the egress from movement within the UT.

On the other hand, sec. 14 of the Foreigners Act provides for the penalty for anyone remaining in India for a period extending the period for which the visa was issued, or doing any act in violation of visa conditions or contravening provisions of the Act.

The learned Magistrate vide order dated 19.09.2012 made the reference after observing that the said Ordinance had "outlived its life" in July 1948 because it was issued under repealed Jammu and Kashmir Constitution Act, 1996, prior to coming into force of the Jammu and Kashmir Constitution on 17.11.1956 and had already lapsed.

According to the opinion formed by the Magistrate, the Ordinance was issued under sec. 38 of the J&K Constitution Act having a life of only six months from the date of its issuance. Therefore, according to the Magistrate, the Ordinance issued in 2005, corresponding January, 1948 (AD) had lapsed after six months i.e. in July, 1948 (AD) well before the coming into force of the Constitution of J&K, 1957.

By this reason, the Magistrate opined that the Ordinance was not saved by sec. 157(2) of the J&K Constitution which saves law in force before its commencement, as it had outlived its live way back in 1948 July.

Observation of the Court

While observing that the Magistrate failed to appreciate the issue in right perspective, the Court opined that the Ordinance was issued by the Ruler of then Princely State of J&K under sec. 5 of the J&K Constitution Act providing for the inherent powers of Ruler to make laws.

Referring to sec. 157 of the J&K Constitution Act providing for repeal and saving of laws, the Court observed thus:

"Sub-section (2), quoted above, read with Section 6(b) of the J&K General Clauses Act, 1977, Svt. provides that all laws in force immediately prior to commencement of the Repealing Constitution shall continue to be in force unless repealed or altered by the competent authority. E&IMCO, which, as already noted was issued under Section 5 of the J&K Constitution Act, 1996, has not been altered/repealed so far and as such it continues to be in force."

To answer the question on constitutionality of the said Ordinance, the Court referred to the judicial decisions on similar ordinances promulgated by the Ruler in exercise of power under sec. 5 of J&K Constitution Act.

While observing that in cases of Rehman Shagoo and others v. State of Jammu and Kashmir, AIR 1960 SC 1 and Harsh Dev Singh, MLA (J&K) v. State of J&K, 2000 S.L.J 360 the Courts have upheld the validity of Enemy Agents Ordinance, 2005 and Jammu and Kashmir Essential Services Maintenance Ordinance respectively, the Court observed thus:

"Thus, the validity of the Ordinances issued by the Ruler of Princely State of Jammu and Kashmir in exercise of his powers under Section 5 of the Jammu and Kashmir Constitution Act, 1996, is no longer res integra. The E&IMCO Ordinance, regarding the validity of which the learned Magistrate has expressed his doubts, has also been issued by the Ruler of the Princely State of Jammu and Kashmir in exercise of his powers under Section 5 of the Jammu and Kashmir Constitution Act, 1996. Therefore, the said law being a duly promulgated law, has remained a valid piece of legislation in view of Section 6(b) of the Jammu and Kashmir General Clauses Act. Thus, no doubt can be expressed about the validity and operation of the aforesaid Ordinance."

While holding that the Magistrate's reference order was uncalled for, the Court set aside the said order and directed the Magistrate to proceed further in the matter in accordance with law.

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