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TMI Blog1943 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 43, whereby the rule-making power of the Central Government under the Defence of India Act was made wider so as to cover the terms of Rule 26 as it had all along stood. The section was so worded as to make this change operative as from the date of the Defence of India Act itself. By another section of the Ordinance it was provided: For the removal of doubts it is hereby enacted that no order heretofore made against any person Under Rule 26, Defence of India Rules, shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made Under Section 2, Defence of India Act, 1939. 2. When the Habeas Corpus applications came on for hearing, reliance was placed upon the Ordinance as an answer to the applications, with the result that the validity of the Ordinance itself was challenged. Other questions were also raised in support of the applications. The various contentions have been summarized by Mitter J., as follows: (I) That the whole of Section 2, De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... groups of appeals against orders passed by the High Courts of Madras, Allahabad and Lahore on similar applications Under Section 491. In those cases, the High Courts dismissed the applications and the appeals were preferred by or on behalf of the detenus. It will be convenient to dual with the Bengal appeals in the first instance'. During the pendency of the appeals one of the detenus, Sasanka Sekhar Sanyal, the respondent in case No. 21 has been released and it is therefore not necessary to deal with that case. 4. The Advocate-General of Bengal and the Advocates-General of the various Provinces addressed full arguments to us questioning the correctness of the reasoning and the conclusions of Mitter and Sen J J. on questions III, VIII and X. On behalf of the detenus, these findings were supported, and their counsel also took exception to the reasoning and conclusion of Mitter and Khundkar JJ., in respect of question IX and to the unanimous conclusion of the three learned Judges on questions I and II. In discussing question VI, the learned Judges of the High Court do not seem to have attached any importance to the difference between the provision in Section 2 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred amend, modify or repeal enactments passed by another Legislature. Counsel for the Punjab detenus argued by way of answer to this contention that in 1861 (when Section 72 of the present Schedule 9, Constitution Act, was first enacted), and indeed up to 1919, Parliament had proceeded on the assumption that unless expressly authorized so to do, a Legislature in India would not have power to amend, repeal or modify even its own enactments. He also maintained that the concluding words of Section 72 providing that an Act of the Legislature might 'control or supersede' an Ordinance indicated that the two legislating authorities were not co-ordinate but that the Legislature was the paramount authority. 7. On behalf of the detenus, it appears to have been contended before the High Court that the Legislature and the ordinance-making authority being two distinct legal entities, though operating in the same field (as to subject-matter and as regards local extent), each can legislate only by itself and cannot directly amend or repeal any measure passed by the other, unless clearly empowered to do so. This contention was repeated before us. It was not disputed-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature an intention different from what it had declared in its own enactment. One or two illustrations may help to elucidate this test or principle. Section 108, Constitution Act, assumes that a Legislature in India may repeal or amend an Act of Parliament extending to British India. When this power is exercised by an Indian Legislature, it cannot be made to appear that Parliament had passed an enactment different from what in fact it had; what the Indian Legislature (San do is to declare that within the local area of its legislative authority, the law shall be as enacted by itself and not as enacted by Parliament. The same will be the case when the Indian Legislature purports to repeal an Act passed by Parliament [cf. also Sections 92(2) and 95(3), Constitution Act.] In such cases neither the terms nor the operation of the Parliamentary enactment would be affected in areas over which the Indian Legislature had no control. The position thus stated is clear enough, because the local extent of the legislative power is clearly different in the two cases. Will not the governing principle be the same, where the capacity of the two legislative authorities even though coextensive a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention, he drew our attention to the discussion in Craies Statute Law (Edn. 4, pp.357 et seq). This will no doubt be the position when Parliament, which is competent to pass either a temporary law or a permanent law, chooses to pass a temporary measure, and by such measure repeals a pre-existing law. Can the position be the same when an authority which can pass only a temporary law purports to repeal a pre-existing permanent statute? The impugned Ordinance enacts for Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939, the following clause shall be substituted, and shall be deemed always to have been substituted... 11. Leaving out of consideration for the moment the fact that the Defence of India Act itself is in terms a temporary measure, suppose an Ordinance attempted to make a similar provision in respect of a section in a statute of permanent operation. What would be the position on the expiry of the period of the Ordinance? If the pre-existing statutory provision could be deemed always to have been what the Ordinance substituted for it, it might be a difficult question to decide whether the provision in the originally statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preexisting rights and the remedies therefor--though these are also sometimes spoken of as 'retrospective'--stands on a different footing, because such provisions will declare the law only for the period during which the Ordinance is in force and not for an anterior or a subsequent period, though their effect may be to deprive parties of rights accrued at an anterior date and of remedies in respect of such rights. In Abeysekera v. Jayatilake (1932) 1932 A.C. 260 at p. 267 Lord Darling observed: It may be true that 'not Jove himself upon the past hath power' but Legislators have certainly the right to prevent, alter or reverse the consequences of their own decrees. 14. There was no complication in that case of one legislative authority attempting to modify or nullify the operation of a law enacted by another authority, but the observation brings out the difference between changing the law for the past and modifying or taking away its consequences. These authorities may justify a finding in favour of the Crown as regards the validity and operation of Section 3 of the Ordinance, but they do not compel a like answer as regards the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of Section 2. 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 preexisting law and might well have been enacted either by the Legislature or by the Ordinance-making authority without any provision corresponding to Section 2 of the Ordinance. The operativeness of such a provision is of course subject to the limitation referred to by Willes J. in Phillips v. Eyre (1870) 6 Q.R. 1 at p. 17, that the authority which enacts it must be one which could have authorized by antecedent legislation the acts done; otherwise, by the device of precluding an investigation by the Court, a legislative authority would be able to do indirectly what it could not do directly: see Board of Trustees of Lethbridga v. Independent Order of Foresters (1940) 1940 A.C. 513 at pp. 533 and 534. We express no opinion on the question what the effect of this provision would be if, after the expiry of the Ordinance, any question should be raised as to the validity of orders of detention passed prior to the enactment of the Ordinance; 18. It was contended that even if Section 3 should be held to be valid and indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en stated by the Governor-General or even by counsel for the Crown, it would be open to the Court to consider whether it would not be an' abuse of or a fraud on the power to treat the facts disclosed as a pretext for the exercise of the emergency power. If it would be an abuse of or fraud on the power, he contended that the case must be treated as one of absence of power. This argument was urged on the basis of an answer given by the Advocate-General of India (in the course of the argument before us) and of a statement said to have been made by counsel for the Crown before the High Court at Lahore, to the effect that it was the decision of this Court in See Keshav Talpade v. Emperor ('43) 30 A.I.R. 1943 F.C. 1 that necessitated the promulgation of the Ordinance. Counsel contended that it would be preposterous to treat a decision of this Court as an 'emergency' justifying the exercise by the Governor-General of his extraordinary power of promulgating Ordinances. It does not seem to us necessary to deal with the larger issues involved in this contention. Such an argument would be available only if it could be suggested that the power had been exercised for a corrupt p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty with the provisions of the rule. Section 59(2), Constitution Act, was sought to be called in aid in support of the proposition that the validity of the orders must be presumed by the Court and could not be questioned. All that that sub-section secures is that the validity of an order or instrument made or executed in the name of the Governor and authenticated in such manner as may be specified in rules made by the Governor, shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor; that is to say, in the case of an order or instrument purporting to be made or executed by the Governor and duly authenticated, it must be presumed that it was made or executed by the Governor. No question as to who made these orders was raised by the respondents. What was questioned was the correctness of the recital in the orders that the Governor had been satisfied that with a view to preventing these persons from acting in a certain manner, certain action was necessary. It was conceded that the Court could not be invited to investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with. 25. In Greene v. Secretary of State for Home Affairs (1942) 1942 A.C. 284 at p. 295 he quoted with approval the following passage from the judgment of Goddard L.J. in the Court of Appeal: I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is 'I do not know why I am interned. I deny that I have done anything wrong,' that does not require an answer because it in no way shows that the Secretary of State had not reasonable cause to believe, or did not believe, otherwise. 26. In Liversidge v. Sir John Anderson (1942) 1942 A.C. 206, Lord Wright observed at page 262: MacKinnon L.J. who agreed with his brethren said that power of the Home Secretary to issue a valid order depended on the fulfilment of a condition, the existence of a state of mind in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t), or the authority or officers to whom this function may have been allotted by rules of business framed in accordance with Section 59(3) of the Act. The argument was that inasmuch as action to be taken Under Rule 26 was in the nature of the exercise of executive discretion, it fell within the executive authority of the Province within the meaning of Section 49. On its being pointed out that this would lead to the result that any officer subordinate to the Governor, even one of the lowest grade, could, as a matter of course, exercise the very drastic powers conferred by the Defence of India Rules, which could not reasonably be presumed to have been intended by the Legislature, it was urged that the matter would be regulated by rules of business framed Under Section 89(3). We are unable to accede to this contention. The executive action or authority dealt with in Sections 49 and 59 must relate to matters with respect to which the Legislature of the Province has power to make laws (Section 49 (a)). Section 124(2) makes provision for Federal legislation conferring powers and imposing duties upon a Province or officers and authorities thereof relating to matters with respect to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definitions in the General Clauses Act are applicable only in the absence of anything repugnant in the subject or context, and our attention was drawn to a number of Defence of India Rules with regard to which it was contended that the expression Provincial Government could not possibly mean the Governor, whether acting on advice or contrary to advice or without advice. Assuming that the context of some of the rules indicates that the expression Provincial Government must in those rules be given a meaning or significance different from the definition of that expression as set out in Sub-section (43a) of Section 3, General Clauses Act, that consideration cannot be permitted to govern the interpretation of that expression in Rule 26, which deals with matters of the gravest import and confers powers that involve the exercise of the highest responsibility. There is nothing in the language of the rule itself which would constrain us to hold that Provincial Government in that rule means anything other than what it would mean under the definition in the General Clauses Act. 31. It was then urged that the volume and multifariousness of the duties imposed upon the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on a Minister by delegation Under Section 2(5), Defence of India Act, could be validly sub-delegated by him by standing orders. 33. We may observe in dealing with this part of the case that Khundkar J. says in his judgment that Rule 26 is a rule under para, (10) of Sub-section (2) of Section 2 (of the Defence of India Act) and the Federal Court has so held, and that it is not a rule under Sub-section (1) of Section 2. He then goes on to observe that Section 2(5), Defence of India Act, cannot be availed of in the case of Rule 26 because it contemplates delegation of powers and duties conferred and imposed by rules framed under Sub-section (1) of Section 2 and not under Sub-section (2) of Section 2. These observations of the learned Judge are with due respect based upon a misreading of the judgment of this Court in See Keshav Talpade v. Emperor ('43) 30 A.I.R. 1943 F.C. 1 It would not be correct to say that Section 2, Defence of India Act, confers two kinds of rule-making powers, one under Sub-section (1) and the other Under Sub-section (2). The rule-making power is conferred under Sub-section (1) and all that Sub-section (2) does is to set out the conditions und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the field of ministerial responsibility. That in respect of certain matters the Governor must act in his discretion and that in respect of certain other matters he must exercise his individual judgment is specifically provided by the Constitution Act. There is no matter with regard to which the Constitution Act lays down that it must necessarily be determined by the Governor according to the advice of his Ministers. The field of ministerial responsibility is not defined in any positive manner in the Act, but is adumbrated in a residuary sort of manner, that is to say, it comprises matters with respect to which the Governor is not required to act in his discretion and does not choose to exercise his individual judgment. The question whether any matter falls within one or other of the special responsibilities of the Governor is left to be determined by the Governor himself. Once he declares that in his opinion a certain matter falls within the scope of any one or more of his special responsibilities, no Court of law has any say with respect to it. Section 50(8), Constitution Act, lays down that if any question arises whether any matter is or is not a matter as respects which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Government, it is specifically stated that these matters were treated as the special responsibility of the Governor. It must also be remembered that though cases of only nine persons have come up before us, the powers conferred by Rule 26 have in the Province of Bengal been exercised in respect of thousands of His Majesty's subjects and it would be difficult to hold that the matter did not fall within the special responsibility of the Governor as set out in para, (a) of Sub-section (1) of Section 52, Constitution Act. 37. Towards the close of the argument, it was contended on behalf of the Bengal Government that what actually happened in respect of cases of detention in the Province of Bengal was that if the Home Minister agreed that the order of arrest Under Rule 129, Defence of India Rules, should be converted into an order of detention Under Rule 26, the matter was treated as falling within the field of ministerial responsibility; but if the Minister disagreed, the matter became one for the special responsibility of the Governor. In other words, it was suggested that the question whether a particular matter did or did not fall within the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor. 40. It now becomes necessary to examine the material on record for the purpose of determining whether the requirements of Rule 26 have been complied with in respect of the orders of detention that have been relied upon by the Crown as an answer to the applications for the issue of writs or Habeas Corpus in these cases. We have already made reference to the contention that the presumption set out in illustration (e) to Section 114, Evidence Act, viz., that official acts have been regularly performed attaches to these orders. Before any such presumption can arise, it must be shown that the orders are on the face of them regular and conform to the provisions of the rule under which they purport to have been made. We have set out earlier the relevant portion of the orders of detention which is the same in each case. This reads as if all that the authority making the order was satisfied about was that the person concerned in each case should be detained and was not certain as to the reason for detaining him i.e., whether that person was to be prevented from acting prejudicially to the defence of British India, or acting prejudicially to the public safety, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s affidavit disclose a state of affairs in respect of the exercise by the Bengal Government of its powers Under Rule 26, which can only be described as lamentable. The largest number of cases of detention in the Province of Bengal appear to have arisen in connexion with the disturbances of August and September of last year. In these cases, the procedure adopted appears to have been that the police sent up lists of persons detained Under Rule 129 together with a recommendation that these persons should be detained Under Rule 26. Thereupon, orders for detention Under Rule 26 were issued forthwith as a matter of routine, and, on receipt of further and detailed material from the police, each case was submitted to the Minister concerned who was then expected to scrutinize such material to see whether there Was any reason why the detention should not be continued. If he discovered such reason he presumably made a recommendation for release which was sent up to the Governor, as the matter was one of his special responsibility. In case nothing further was heard from the minister after submission of the cases to him, nothing was done, and the detention continued. We may draw attention in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the cases should be brought up before me. 45. There was apparently no limit of time within which a review of these cases was to be completed by the Minister. In the case of Nanigopal Mazumdar, for instance, the automatic order of detention Under Rule 26 following upon arrest Under Rule 129 and a recommendation by the police for detention was issued on 8th March 1948. By 24th May 1943 (the date on which Mr. Porter's affidavit was sworn) the detailed material upon which the recommendation of the police had been made, had not yet been received and the case had not therefore been put up for review . Even with regard to the 1940 cases (NOS. 15 and 20) it does not appear from Mr. Porter's affidavit that they were at any stage considered by the Governor. In Birendra Ganguli's case (NO. 19), the arrest Under Rule 129 took place on 16th August and the order Under Rule 26 was made on 14th September by Mr. Porter, in anticipation of the orders of the Home Minister, though the maximum period of detention permitted Under Rule 129 was not due to run out till 15th October and the Minister was actually able to dispose of the case on 18th September. There was thus n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be difficult to conceive of a more callous disregard of the provisions of the law and of the liberty of the subject. The following observations occur in this Court's judgment in See Keshav Talpade v. Emperor ('43) 30 A.I.R. 1943 F.C. 1: We confess that an order in the terms of that under which the appellant in the present case has been detained fills us with uneasiness. It recites that the Government, of Bombay is satisfied that, with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war,' it is necessary to make an order of detention against him. This reads like a mere mechanical recital of the language of Rule 26. We do not know the evidence which persuaded the Government of Bombay that it was necessary to prevent the appellant from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war; but we may be forgiven for wondering whether a person who is described as an authorized petition-writer on the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght appeals should be dismissed, 49. (Cases Nos. 9,11,12,25,27,28,30 and 32 of 1943) These are appeals against orders passed by the High Courts of Allahabad, Lahore and Madras dismissing applications made to them Under Section 491, Criminal P.C., for the release of certain persons detained Under Rule 26, Defence of India Rules. The circumstances in which these applications were made were similar to those in which applications were made in the Bengal cases which we have just disposed of. As most of the contentions raised were common to the two sets of cases, we heard them together. The detenus concerned in cases Nos. 9 and 12 (from Allahabad) have been released during the pendency of these appeals; it is therefore not necessary to deal with them. In this batch of cases, no question as to the order of detention not conforming to the requirements of Rule 26 was raised; the discussion in our judgment in the Bengal cases of what has been referred to as Question 10 has no bearing on this batch. The conclusion reached In that judgment as to the validity and operativeness of Section 3 of ordinance 14 of 1943 is sufficient to warrant the dismissal of these appeals. In cases N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to make the following orders to continue his detention; 52. It has been suggested that (1) the form of the recital indicates by use of the word or that no final consideration has been given to each case and that all that the investigating authority has done has been to form a rough conclusion that the case may come within one or other of the reasons quoted and that (2) the use of a cyclostyled form of order indicates a like lack of careful consideration, and that therefore the order is not good ex facie. I do not accept these arguments. In my judgment, the form of recital is one which a layman might reasonably use when he was satisfied that the case must come within one or other of the specified categories without being prepared to pledge himself with legal exactitude to any particular one or more of the categories. Nor do I think that the cyclostyling of the forms, having regard to the circumstances in which many of these orders may have been made, is sufficient to raise serious doubts as to the validity of the orders. I do not think therefore that the form of the order discloses anything irregular on these grounds on its face. The detenus further cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements made by the Chief Minister in the Bengal Legislative Assembly in February and March 1943, that on 1st October 1942, orders were given to those by whom cases of persons detained under it. 129 were being considered that if the police recommended detention under Rule 26 of any such persons, detention orders Under Rule 26 should be made as a matter of routine without any further proper inquiry by, or satisfaction on the part of, any person at that stage that the cases really came within the provisions of Rule 26. In answer to the evidence put in by the detenus the Government of Bengal put in an affidavit deposed to by the Additional Secretary, Home Department. This affidavit confirms the giving of the order by the Home Minister as to the routine dealing with these cases above referred to, though it also suggests that despite the routine order some inquiry beyond that required by the routine order was made by the Additional Secretary. Further, the evidence indicates that the order may have been given in the interests of the detenus as it is suggested that persons detained Under Rule 26 may have some privileges in jail, as compared with persons detained Under Rule 129. This cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in each of the other cases then before the Court. The detenus in cases Nos. 15, 19 and 20 are entitled to the benefit of this evidence. It is, therefore, to the evidence of Dr. Sanyal, its annexure containing the report of the answers and statement of the Chief Minister in the Bengal Legislative Assembly, and the answering affidavit of Mr. Porter to which we must look for any evidence on behalf of these three detenus raising a prima facie case that these orders made prior to 1st October 1942 were invalid. In these three cases the position in law is, in my judgment, as follows. The application Under Section 491 is made by or on behalf of a detenu. The Crown justifies the detention by putting in the original order of detention with the recital of the satisfaction of the Governor and ordinance, 14 of 1948. If the Ordinance or clause (3) thereof is held valid, the onus is then entirely shifted on to the detenu to establish at least a prima facie case that the order of detention in his particular case was invalid on grounds other than those derived from the decision in the See Keshav Talpade v. Emperor ('43) 30 A.I.R. 1943 F.C. 1 It is not sufficient merely to allege that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he actually received the Home Minister's instructions he himself made the order before the period of detention Under Rule 129 actually expired. The deduction which the Court should, I think, draw from this evidence is that whilst the normal procedure was for the Additional Secretary to examine the cases, make his recommendations to the Home Minister and act on the latter's instructions Mr. Porter would be justified in an emergency in making the order himself and reporting the matter to the Home Minister. Such a procedure might, in my judgment, both in fact and in law have been validly authorized by the Provincial Government. In the absence of proof that the procedure disclosed in these cases in Mr. Porter's affidavit either was not in fact or could not in law be properly authorized by the Provincial Government, in my judgment the presumption that everything was properly done should be held by this Court to prevail. There is no evidence that in fact what was done was not authorized. I have considered whether in law there is anything to prevent the duty of dealing with these cases being assigned to Mr. Porter, an Additional Secretary, to investigate and report to the Hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with rules of business made Under Section 59(3) and the powers conferred by Section 49, and that those powers are not controlled and superseded (to use an expression very familiar in this case) but are supplemented by the express power of delegation, contained in Section 2(5), Defence of India Act, to any officer or authority not being an officer or authority subordinate to the Central Government. This power of delegation so conferred goes further as regards the selection of the person or authority to execute the powers or duties on behalf of the Provincial Government than any powers expressly or impliedly available under the powers of the Constitution Act to a Provincial Government for carrying out its executive duties. This power of delegation appears to me to be a most useful supplementary power to deal with difficult or distant administrative problems which would strain the ordinary machinery of Provincial Government. Moreover if this express power was intended to supersede or modify the powers contained in the Constitution Act for the carrying on of the executive business of the Province, I should have expected the provisions of the Defence of India Act to have mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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