' RAJA MUHAMMAD KHURSHID KHAN, Ad o. C. J.-This appeal by leave seeks to impeach the orders passed by the Azad Jammu and Kashmir High Court (Full Bench) on 18-3-1979 and 14-4-1979, respectively. By these orders first being the short one and the second a detailed one the respondents' arrest and detention under sections 12 and 13 of the Emergency Powers Act, 1958, for their having delivered objectionable speeches against the Government and taken part in prohibited political activities were quashed, inter alia, on the ground that the Emergency Act, 1958, being ultra vires of section 53 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution Act, 1974), is not a valid law. In the estimation of the High Court in the absence of a proclamation, as stipulated under the provisions of section 53 of the Constitution Act, 19740 the Emergency Powers Act, 1958 has no legal backing and the prosecution and detention of the respondents, under this Act, were illegal.
2. In support of the appeal it has been argued by Raja Muhammad Akram Khan, the learned Avocate-General :-
(i) that section 53 of the Constitution Act, 1974, has no nexus with the Emergency Powers Act, 1958, as this section is only available to the Chairman of the Council to direct the President to issue the proclamation of emergency in the event the Chairman is satisfied that grave emergency exists in which the security of Azad Jammu and Kashmir is threatened by war or external aggression or by interns disturbances. This section is meant to meet such emergency which endangers the very existence of the State; and
(ii) that the Emergency Powers Act, 1958, is a valid document and I stands well-protected under section 51 read with section 57 of the Constitution Act, 1974, and the learned Judges in the High Court misinterpreted the provisions of sections 51, 53 and 57 of the Constitution Act, 1974, vis-a-vis the Emergency Powers Act, 1958, in holding that without a proclamation under section 53 of the Constitution Act, 1974 the Emergency Powers Act, 1958 would be considered as non existent.
3. Sardar Muhammad Yasin Khan, the learned counsel representing the respondents, however, supported the impugned judgments on the very ground which were advanced by the High Court in support of its view point. I would appear that this case raises a short but interesting point of law an before the Supreme Court the point has come up to be decided for the first time.
4. We have given our deep consideration to the arguments advanced a the bar. The question posed is whether the Emergency Powers Act, 1958 is ultra vires of section 53 of the Constitution Act, 1974. The learned Judge of the High Court have observed that the Emergency Powers Act, 1958, is ultra vires of the Constitution Act, 1974, because the President of Azad Jammu & Kashmir had not issued any proclamation of emergency as envisaged under section 53 of the Constitution Act, 1974.
In their view, the absence of such a proclamation destroys the Emergency Powers Act, 1958.
5. To understand the controversy, in the first instance, we deem proper to reproduce section 53 of the Constitution Act, 1974. It reads :- "(1) The President, if so advised by the Chairman of the Council that grave emergency exists in which the security of Azad Jammu & Kashmir is threatened by war or external aggression or by internal disturbances the President shall issue a proclamation of Emergency, hereinafter referred to as the Proclamation.
(2) A proclamation shall be laid before a joint sitting which shall summoned by the President to meet within thirty days of the Proclamation being issued and-
(a) shall cease to be in force at the expiration of two months un before the expiration of that period it has been approved by a resolution of the joint sitting; and
(b) shall, subject to the provisions of clause (a), cease to be in force upto a resolution disapproving the resolution being passed by the votes on the majority of the total membership of the joint sitting.
(2-A) Notwithstanding anything contained in subsection (2), if the. Assembly stands dissolved at the time when the proclamation is issued, the proclamation shall continue in force for a period of four month but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration that period unless it has earlier been approved by a resolution of the Council, (3) A Proclamation may be made before the actual occurrence of war of external aggression if the President is satisfied that there is imminent danger thereof."
6. The bare reading of section 53 (1) and (3) of the Constitution of, 1974, makes us to believe that it stipulates the proclamation of emergency y the President on the advice of the Chairman of the Council when the hair man is satisfied that grave emergency in which the very existence of e State is threatened by war or external aggression or by internal disturbances d in no other case. The proclamation of emergency under this section presupposes danger of war or external aggression to the security of the State' the satisfaction of the Chairman of the Council.
7. Section 53 of the Constitution Act, 1974, thus visualises a situation the country altogether different for which Emergency Powers Act is meant. He proclamation under section 53 of the Constitution Act, 1974, presuppose situation which endangers the very existence of the State and for that son even the fundamental rights may he suspended during the period of oclamation. Section 53 of the Constitution Act, 1974, it would appear, ognises the proclamation of emergency when the Chairman of the Council satisfied that a grave emergency exists in which the State of Azad Jammu Kashmir faces imminent danger of war by way of external aggression on anomic life of Azad Jammu & Kashmir is disturbed by internal disturbance yond the power of the Azad Jammu & Kashmir Government to control. Obviously section 53 of the Constitution Act, 1974, has no nexus wit mergency Powers Act, 1938. That Act is meant for a different purpose d has its independent existence. Its life cannot be subordinated to roclamation of emergency under section 53 of the Constitution Act, 1974.
8. When a proclamation of emergency, under section 53 of the Constituent Act, 1974, is in operation the Council may acquire the power to make was for Azad Jammu & Kashmir with respect to any matter not enumerated the Council Legislative List or the concurrent list. In other words the council launches a legal invasion in the legislative field of Azad Jammu & Kashmir. The capacity or the competence of the Council to invade the Jammu & Kashmir Legislative Assembly to make any law which inertly under the Constitution Act, 1974, it has no power, to make creases. But here again if there is any inconsistency between the provisions Council law enacted in consequence of proclamation of emergency and e provisions of the laws made in Azad Kashmir, Council law, no matter ether passed before or after the law made in Azad Kashmir, shall prevail d the law made at the level of Azad Jammu & Kashmir to that extent will repugnant so long as the Council law continues to have effect. Such a has the further attribute of remaining alive throughout the period of stence of emergency and the executive authority of the Council would also t extended so give directions to Azad Kashmir Government touching the unity of the State.
9. It is thus. Manifest that section 53 of the Constitution Act, 1974, is cant to control the situation in times of the imminent danger to the State d to do so the Government requires an ample power even to suspend the damental rights. The need for emergency provisions and suspension ofl damental rights during such emergency is obvious. The experience of e two great wars of the present century shows- that in times of war it is entail for the safety and security of the State to arm the Government with extraordinary powers. In Ronfeldt v. Phillips (1) Lord Justice Scrutton said :- "The Courts were always anxious to protect the liberty of the subject. They did so both in the interests of the subject himself and in the interests of the State. In time of war there must be some modifications in the interests of the State. It had been said that a war could not be conducted on the principles of the Sermon the Mount. It might also be said that a war court a not be carried on according to the principles of Magna Carta."
' In this connection, it would not be inappropriate to quote the following passage from the opinion of Lord Atkinson in R. v. Halliday, Ex parte Zaling (2).
"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement."
10. We would like to point cut that provision under section 53 of the Constitution Act, 1974, does not go beyond what is recognized by many countries and is based on the principle that even 'freedom is not free'. It would be better to quote Mr. S. M. Zafar, Law Minister of the time, while piloting the Constitution (Fifth Amendment) Bill in the National Assembly of Pakistan, he said :- "The citizens have got to surrender their rights in favour of the State when the State is confronted with a situation which can be said to be a situation < of its own survival, when it is entangled in a war of if and death, if the State lives, these rights live, and if the State does not live, these rights would also die."
11. The whole argument and reasoning of the learned High Court to hold the Emergency Powers Act, 1958, in the absence of the declaration of emergency as stipulated under section 53 of the Constitution Act, 1974, through separate proclamation, after 1974, as invalid cannot, therefore, accepted as correct.
12.
Section 51 of the Constitution Act, 1974, which reads :- "Subject to the provisions of this Act, all laws which, immediate! Before the commencement of this Act, were in force in Azad Jammu & Kashmir shall continue in force until altered, repealed or amended b an Act of the appropriate authority.
' Explanation.-In this section,-
(a) 'laws' includes Ordinances, Orders, rules, bye-laws, regulations an any notifications and other legal instruments having the force of law and
(b) 'in force', in relation to any law, means having effect as law whether or not the law has been brought into operation." affords full protection to the Emergency Powers Act, 1958. The learn Judges in the High Court, it appears, failed to appreciate the true intents and purposes of the words 'subject to the provisions of this Act' under section 5 of the Constitution Act, 1974. 'Subject to the provisions of this Act' mea if any law is repugnant or militates against the provisions of the Constitute Act, 1974, such a law to that extent is to be struck down. The learn {{FOOT NOTE}} (1)(1918) 35 T L R 47 (2) 1917 A C 260 {{FOOT NOTE}} Judges of the High Court are of the opinion that as the Emergency Powers Act, 1958, is in conflict with section 53 of the Constitution Act, 1974, it is to walk out of the field of law. With due respect to the learned Judges, we cannot agree with them. There is no quarrel with the High Court that any law or rule having the force of law which is in conflict with the Constitution Act, 1974, is a dead letter.
But as said earlier the Emergency Powers Act, 1958, is not in any way in conflict with any of the provisions of the Constitution Act, 1974; rather it is saved by section 51 of the Constitution Act, 1974.
13. Likewise reference to section 57 (1) of the Constitution Act, 1974, which reads :- "The provisions of this Act shall override and have effect notwithstanding the provisions of any law for the time being in force." is beyond the point. Section 57 (1) of the Constitution Act, 1974, is only meant to say that the Constitution Act, 1974, being the supreme law would override all subordinate laws.
14. The preamble of the Emergency Powers Act, 1958, which reads :- "Whereas an Emergency has arisen which makes it necessary to provide for special measures to ensure the security of the State, public safety and maintenance of law and order, it is hereby enacted as follows." ' has wrongly been interpreted to mean that the Emergency Powers Act, 1958, after the Constitution Act, 1974, being in conflict to the Constitution Act, 1974, is to be struck down.
15. The question whether the Emergency Powers Act, 1958, is intro vires or ultra vires of the Constitution Act, 1974, depends simply on examining the language of section 53 of the Constitution Act, 1974, and comparing it with the language used in the Emergency Powers Act, 1958. As said earlier, there is nothing underlying the Constitution Act, 1974, which makes the Emergency Powers Act, 1958, as a nullity; rather it saves it under section 51.
16. It may be stated here that the preamble of a statute usually states general object and intention of the Legislature in enacting it. Enacting part is not exactly co-extensive with the preamble.
Former, if expressed in clear and unequivocal terms, overrides the latter. The preamble of the Emergency Powers Act, 1958, would show that it only provides for special measures to ensure the security of the State, public safety and maintenance of law and order. Under this provision the fundamental rights cannot be suspended.
17. Sections 12 and 14 of the Emergency Powers Act, 1958, under which the respondents have been proceeded against, are reproduced below:- "Section 12.-(1) No one by word of mouth, or in writing or by signals or otherwise, will spread reports, calculated to create alarm or despondency among the public or calculated to create disaffection to the Government, the armed forces, the police or any member thereof or any servant of the Government.
(10 No person shall contravene any order or direction issued under this Act or commit any act or be guilty of any omission or make a speech-
(a) which is to the prejudice of the good order of the public safety ; or
(b) which is calculated to mislead or hamper movements of or imperil the success of or tamper with the loyalty of the armed forces."
(i) Strikes and agitations in educational institutions and public utility works and installations ;
(ii) all political activities including processions and meetings both in public or private."
18. It -would appear that under these sections the fundamental rights stipulated under the Constitution Act, 1974, cannot be suspended. Under sections 12 and 14 of the Emergency Powers Act, 1958, the President is expected to exercise his powers when a person is accused of an offence mentioned in these sections ; obviously it has to do nothing with H the grave emergency. All that it intends is to inflict heavy punishment. This Act, therefore, Hoes not conflict with any of the provisions of the Constitution Act, 1974. Fundamental rights can only be suspended when there is a proclamation issued by the President on the advice of the Chairman of the Council under the provisions of section 53 of the Constitution Act, 1974.
19. It is also significant that the word 'grave' under section 53 of the Constitution Act, 1974, does not appear in the preamble of the Emergency Powers Act, 1958. It is fundamental that the Constitution must be read as an organic whole and considering the whole Constitution as one organic enactment, we are of the view that section 53 of the I Constitution Act, 1974, covers altogether a different field and section 51 of the Constitution Act, 1974, saves the Emergency Powers Act, 1958. As it is not in conflict with any of the provisions of the Constitution Act, 1974.
20. The net result is that section 53 of the Constitution Act, 1974,' is meant to give power to the Chairman of the Council to proclaim emergency when the very existence of the country is in danger ; while the Emergency Powers Act, 1958, is only meant to maintain the law and order situation which has not attained the magnitude as to endanger the very existence of the country which condition, as stated earlier, is a condition precedent for the satisfaction of the Chairman of the Council to take an action under section 53 of the Constitution Act, 1974.
21. There is a lot of difference between 'emergency' and 'grave emergency'. A proclamation under section 53 of the Constitution Act, 1914, is only required when there is a grave emergency. But Emergency Powers Act, 1958, only stipulates immediate legislation to meet the situation which may be emergent but not so grave as to attract the provisions of section 53 of the Constitution Act, 1974.
22. For the above stated reasons we accept this appeal, set aside the judgments of the High Court dated 18-3-1979 and 14-4-1979 and hold that the Emergency Powers Act, 1958, does not militate against any of the provisions of the Constitution Act, 1974, and it still remains on L the statute book.
However, as the situation by now has altogether changed, the Government would neither arrest nor prosecute the respondents on the basis of the information gathered at that time. If however, the respondents act now in contravention of the Emergency Powers Act, 1958, the Government is at liberty to take action against them.