1943 (8) TMI 7 - Other - Indian Laws

Summary

Issues Involved:
1. Ultra vires of Section 2, Defence of India Act.
2. Ultra vires of Clause (x) of Section 2(2) of the Defence of India Act.
3. Governor-General's power to amend or repeal an Act by Ordinance.
4. Central Indian Legislature's power to repeal or amend its own Act.
5. Governor-General's power to legislate on subjects in List II of Schedule 7.
6. Retrospective operation of the Ordinance.
7. Ordinance affecting pending proceedings.
8. Independent existence of Section 3 of the Ordinance.
9. Existence of Rule 26 under the Defence of India Act.
10. Improper detention of the nine persons.

Detailed Analysis:

Issue 1: Ultra Vires of Section 2, Defence of India Act
The court unanimously rejected the contention that the whole of Section 2, Defence of India Act, both in its original and amended forms, is ultra vires the Indian legislature. The judgment noted that the expressions "reasons of state connected with defence" and "reasons connected with the maintenance of public order" are wide enough to include public safety or interest.

Issue 2: Ultra Vires of Clause (x) of Section 2(2) of the Defence of India Act
The court also unanimously rejected the contention that the portion of Clause (x) of Section 2(2) added by the amendment made by the Ordinance is ultra vires the Indian Legislature. The court found that this legislation was covered by the entries in the relevant lists.

Issue 3: Governor-General's Power to Amend or Repeal an Act by Ordinance
Two judges (Mitter and Sen JJ.) upheld the contention that the Governor-General has no power to directly amend or repeal any Act of the Federal Legislature by an Ordinance made and promulgated under Section 72 of Schedule 9, Government of India Act, 1935. However, Khundkar J. disagreed. The court noted that the question might not admit of a general or comprehensive answer and different aspects might be governed by different considerations.

Issue 4: Central Indian Legislature's Power to Repeal or Amend its Own Act
The court unanimously rejected the contention that only the Central Indian Legislature has the power to repeal or amend an Act of the Central Indian Legislature passed under Section 102, Government of India Act.

Issue 5: Governor-General's Power to Legislate on Subjects in List II of Schedule 7
The court unanimously rejected the contention that the Governor-General has no power to legislate by such an Ordinance on any subject enumerated in List II of Schedule 7, Government of India Act.

Issue 6: Retrospective Operation of the Ordinance
The court unanimously rejected the contention that the Governor-General has no power to give retrospective operation to such an Ordinance. The court distinguished between the provision in Section 2 of the Ordinance, which makes the substituted provision take effect from the date of the Defence of India Act itself, and Section 3, which prevents any question being raised as to the validity of orders previously passed under Rule 26.

Issue 7: Ordinance Affecting Pending Proceedings
The court unanimously rejected the contention that the Ordinance cannot affect proceedings which were pending at the date of its promulgation.

Issue 8: Independent Existence of Section 3 of the Ordinance
Two judges (Mitter and Sen JJ.) upheld the contention that Section 3 of the Ordinance has no independent existence apart from Section 2 of the Ordinance and must stand or fall with that section. However, the court found that Section 3 merely deals with the remedies of parties and the power of the Court to give redress in respect of a breach of the pre-existing law and could be enacted independently.

Issue 9: Existence of Rule 26 under the Defence of India Act
Mitter and Khundkar JJ. agreed that Rule 26 had no existence in the eye of law on 29th September 1939, but Sen J. disagreed. The court noted that Section 21 of the Defence of India Act only requires the rule to have been "made" under the earlier Ordinance, and not validly made, to avoid a break in the operation of the rules.

Issue 10: Improper Detention of the Nine Persons
The court found that the orders of detention were not made in accordance with the provisions of Rule 26. The orders were issued as a matter of routine without proper consideration or satisfaction of the authorities. The court observed that the procedure adopted by the Bengal Government showed a callous disregard of the provisions of the law and the liberty of the subject. Consequently, the court directed the release of the detenus.

Separate Judgment by Spens, C.J.
Spens, C.J., agreed with the majority judgment regarding the validity of Section 3 of the Ordinance but differed on the special points raised by evidence in the Bengal cases. He concluded that in four cases, the orders for detention were valid as they were made before 1st October 1942 and the evidence did not raise a prima facie case against the accuracy of the recitals in those orders. He also noted that the procedure adopted could have been legally authorized under the Constitution Act by rules of business made under Section 59(3) of that Act.

Conclusion:
The court dismissed the appeals in the Bengal cases, finding that the orders of detention were not made in compliance with Rule 26. The appeals from the High Courts of Allahabad, Lahore, and Madras were also dismissed based on the validity and operativeness of Section 3 of Ordinance 14 of 1943.