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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 ..... 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, Defence of India Act, both in its original and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Ordinance which makes the substituted provision take effect as from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenus 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--except by counsel for the Punjab detenus--that an Ordinance may in effect modify the operation of a statute by enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as regards local extent and subject-matter, differs in respect of the time limit J during which their respective enactments can op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statutory form would be revived at all. 12. It will be noticed that unlike an amendment merely in the nature of an addition to a pre-existing statute, Section 2 of Ordinance xiv attributes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the Ordinance-making authority to enact a retroactive law. 15. There was lengthy discussion before us as to the bearing and effect of the decision in Attorney-General for Ontario v. Attorney-General for the Dominion (1896) 1896 A.C. 348 particularly of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 independently operative, it would not avail the Crown much, because that section proceeded on the assumption that at the time the orders of detention were passed, Rule 26, Defence of India Rules, was at least de facto in existence, whereas according to counsel for the detenus, this was not the case. This was questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpose or for purposes foreign to the power. (See Farwell on Powers, ch. X.) Can that be said to be the case here? The decision of this Court might have led to promulgation of the Ordinance. But the 'Emergency' was the apprehended danger to peace and public safety, likely to arise from the release of thousands of detenus in obedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 satisfied. The gist of the contention was that these cases were never before the Governor, that the Governor had never applied his mind to them, and that therefore it could not be said that the Governor had been satisfied. 24. To meet this contention, reliance was placed by the Grown on the presumption that official acts have been regularly performed. The words 'may presume' in Section 114, Evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Home Secretary, that is, that he had reasonable grounds for believing certain facts to exist, and by implication that he honestly entertained that belief. Goddard L.J., I think, also treated the material issue as being what is the Home Secretary's state of mind. 27. In Greene v. Secretary of State for Home Affairs (1942) 1942 A.C. 284, Lord Romer observed (page 809): In the present case, it is plain that Sir John Anderson was of opinion that there was reasonable cause for his b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a Provincial Legislature has no power to make laws. We are of the opinion that whenever powers of this kind or indeed other special statutory powers are conferred, they must to the extent to which specific provision has been made in the statute conferring the powers be exercised by the authority and in the manner specified in the statute and in strict conformity with the provisions thereof. 30. In this view of the matter, it is unnecessary to make any reference to rules of business on which reliance was placed on behalf of the Crown. We may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 Provincial Government by the Defence of India Rules must necessitate the delegation in many cases by the Provincial Government of its powers to officers subordinate to it and that it must be presumed that this delegation could be effected under its rules of business. Sub-section (5) of Section 2, Defence of India Act, furnishes a complete answer to this line of argument. That sub-section expressly authorises the Provincial Government to delegate the exercise of powers conferred and the discharge of duties imposed by the Defence of India Rules upon the Provincial Government; and we are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules 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 under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of power conferred Under Sub-section (1). Any other view would lead to the anomaly that on the subjects enumerated in the paragraphs of Sub-section (2) there might be two sets of rules, one conferring unconditional and unlimited powers by virtue of being framed under Sub-section (1) and the other being subject to restrictions and limitations in conformity with conditions and restrictions prescribed by Sub-section (2), a state of affairs, the contemplation of which, could not possibly be attributed to the Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the Governor is by or under the Act required to act in his discretion or to exercise his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised his individual judgment. Nor can any argument be founded upon any obligation or duty that may be laid upon the Governor by his instrument of instructions, inasmuch as the validity of anything done by the Governor cannot be called in question on the ground that it was done otherwise than in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 of the special responsibilities of the Governor was settled not with reference to the nature of the particular matter but upon the nature and effect of the advice that the Minister concerned had tendered in respect of it. If the Governor found himself in agreement with such advice, he was content to treat the matter as one of ministerial responsibility; if he disagreed with it, he made it a matter of his special responsibility. In support of this suggestion our attention was invited to the following statement of the Home Minister in the Bengal Assembly: Ordinarily when a man is arrested Under Rule 129, the case must come up to me at some stage. Now if I agree that the order Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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, or acting prejudicially to the maintenance of public order, or acting prejudicially to the efficient prosecution of the war. We were told that the order is a cyclostyled form in which the name and particulars of the person to be detained are filled in as need arises. It is possible that the ministerial officer responsible for the drawing up of the order merely copied into this part the relevant portion of the language of the rule itself; and failed to notice that though the word "or" before the words "efficient prosecution of the war" was perfectly in order in the rule, it was out of place in the orders of detention. It was suggested that some sort of reasonable meaning could still be read into this part of the orders of detention, but we see no reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial 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 this connexion to the following statements made by the Home Minister in the Bengal Legislative Assembly in answer to questions on the subject: We have adopted the device of issuing orders under Defence Rule 26 pending scrutiny of the information submitted to us, because this ensures to those who are under detention the rather more favourable concessions allowed to security prisoners, the absence of which was in some cases made a matter for protest or complaint by or on behalf of those concerned. All that I can say is this, that cases are put up and as a matter of routine the order Under Section (sio) 129 is converted into one Under Rule 26, unless there are special reasons why a recommendation should be made for their release. The arrest is forthwith reported to Government fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no urgency of any kind and no reason has been disclosed by Mr. Porter why he thought it necessary to pass the order of detention himself. In the case of Niharendu Dutt Majumdar (NO. 18) the only inference that can be drawn from Mr. Porter's affidavit is that the case was never put up even before the Home Minister, in spite of the latter's express instruction that all cases of members of the Legislative Assembly must be put up before him. As Mr. Porter occasionally took it upon himself to direct the issue of orders of detention, and there was not even a suggestion before the High Court or before ua that any of the cases with which we are now concerned was put up before the Governor, it is plain that this case was finally disposed of by Mr. Porter himself. 46. It was suggested on behalf of the Crown that before the issue of orders of detention Under Rule 26, at least Mr. Porter sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 Insolvency side of the Bombay High Court was really as dangerous a character as the recital of all these four grounds in the order of detention suggests. The order does nothing to remove the apprehension we have already expressed that in many cases the persons in whom this great power is vested may have had no opportunity of applying their minds to the facts of every case which comes before them. We regret to have to Observe that the apprehensions there expressed have on the material that has been brought on the record of the cases now before us turned out to be justified. 47. In view of what we have just observed, it was not necessary for us to examine each individual case to see whether the order of detention was open to objection. We have however as a matter of fact considered each case and have come to the conclusion that every one of these orders is bad in law as in no case does it appear that the matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing 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 Nos. 11, 25, 27, 28, 30 and 32 the appeals are accordingly dismissed. Spens, C.J. 50. I have had the opportunity of reading and considering the judgment just delivered by my brother Zafrulla Khan on behalf of himself and my brother Varadachaciar. With their judgment as to the validity of Clause (3) of ordinance 14, I am in complete agreement. I further agree that in view of our decision on Clause (3), there is no necessity for the disposal of the cases before us to come to a decision 'on the validity of Clause (a) of the Ordinance. On that part of the case I have nothing further to add. On the special points which have been raised by evidence in the Bengal cases, I take a somewhat different view to that taken by my brothers in regard to all the cases and in four I differ in my conclusion from that at which my brothers have arrived. I must therefore explain my reasons. Rule 26, Defence of India Rules, is in the following terms so far as material: The Provincial Government, if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore that the form of the order discloses anything irregular on these grounds on its face. The detenus further claim (a) that there is admissible evidence to establish that not, only is that recital incorrect in each case but that in fact there was not, as required by the rule, any proper consideration by, or any proper satisfaction on the part of, any properly authorised person before the orders for detention were made; and (b) that accordingly such orders were and must remain invalid. 53. The first question which arises is whether having regard to the recital contained in these orders, which on the face of them appear to be validly made, it is permissible for the truth and accuracy of the recital to be inquired into by this Court. It was suggested that Section 59(2), Constitution Act, made it impossible for any such inquiry to take place. In my judgment, however, section 59(a) prohibits a duly authenticated order being called in question on one ground find one ground only, namely, that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have some privileges in jail, as compared with persons detained Under Rule 129. This cannot, of course, justify the course of procedure adopted. It was wholly wrong to direct that orders should go as a matter of course on police recommendation and that the real consideration should follow the making of the order. It is impossible, in my judgment, for the Court to be satisfied that, after such a general order was given, there was, before the orders for detention were made, any full or proper inquiry by any one or any proper satisfaction on the part of any one, that each case was one where it was necessary to make an order for detention Under Rule 26 without that person's mind having been influenced by the improper routine order. The facts disclosed in these cases appear to me to bring them within the exceptional class of cases referred to by Lord Wright in Liversidge v. Sir John Anderson (1942) 1942 A.C. 206 at p. 261. In my judgment, therefore, none of the orders made in these cases, where persons had been arrested and were being held Under Rule 129 after 1st October 1942, can be upheld as valid. 55. There are, however, three cases where the orders for detention were made befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;43) 30 A.I.R. 1943 F.C. 1 It is not sufficient merely to allege that the detention is not in good faith or bona fide or anything of that sort. Pacts have got to be alleged by the detenu sufficient to persuade the Court that, although the order ex facie indicates that everything that ahould have been done has been properly done, it is entitled or it is proper for the Court to call upon the Crown further to justify what is expressed to have been done in the order (vide Lord Maugham in Liversidge v. Sir John Anderson (1942) 1942 A.C. 206 at p. 224 and Lord Wright's observations in Greene v. Secretary of State for Home Affairs (1942) 1942 A.C. 284 at p. 299). The detenu must accept the position that the presumption omnia praesumuntur rite esse acta applies to the order and that once the order is proved or admitted the Court should prima facie, until the contrary is proved, assume it to have been properly made. The burden off proof is clearly on the detenu, and it is for this Court to determine in these three cases whether that burden has been discharged. 56. I have read carefully through the extracts from the proceedings of the Bengal Legislative Assembly referred to by Dr Sanya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an Additional Secretary, to investigate and report to the Home Minister and act normally on his instructions but in an emergency to act himself. In my judgment, there is nothing in law which would prevent this procedure being authorized by the Provincial Government. If therefore the Court ought to act upon the presumption, there is no legal difficulty in the way. 57. It is true that neither Mr. Porter's affidavit nor the statements and answers of the Home Minister set out what in fact was the prescribed procedure for dealing with these cases, or indicate the rules of business or other authority under which such procedure could be properly prescribed. The result was that the Advocate. General for Bengal took such facts as appeared from the evidence and attempted to establish affirmatively from these facts and certain sections of the Constitution Act and rules of business of the Provincial Government that the procedure adopted was in fact duly authorized. If the burden of establishing this affirmative case had been on the Advocate-General, I should have felt difficulty in finding that he had discharged it in the absence of clear evidence of what was the procedure prescribed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Defence of India Act to have made that position clear beyond doubt and to have found Sub-clause (5) of Section 2 introduced by some words such as "notwithstanding anything in the Government of India Act, 1935" to indicate that if any of the new duties and powers were to be assigned to officers of the Provincial Government, such assignation was not in any case to be effected under the normal powers of the Government of India Act but must be effected by some delegation Under Sub-clause (5) of Section 2. It follows that I accept the argument of the Advocate. General that such matters as those to be dealt with Under Rule 26 could be dealt with in accordance with rules of business made or to be made Under Section 59(3), Constitution Act. 59. I am accordingly of the opinion that in these three cases the appeals should succeed. There remains Case No. 18. This is the case of a detenu who had not previously been arrested Under Rule 129 when the order for his detention was made. His case also did not come within the purview of the objectionable routine order. Here again the evidence upon which the detenu is entitled to rely (which includes Dr. Sanyal's affidavit and the annexure ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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