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TMI Blog1966 (3) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... p, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, arrested 44 persons and charged them with offences under Sections 302/109/34 and 201, Indian Penal Code. Some other members of the C.R.P. were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages. The trial was about to take place before the Additional Deputy Commissioner, Kohima, when an objection was taken that the trial should be before the Court of Session after commitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure. The Additional Deputy Commissioner overruled the objection pointing out that there were no Courts of Session in the Naga Hills District and the Criminal Procedure Code was also not in force. He ruled that committal proceedings and trial before a Sessions Court were, therefore, not possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District, 1937, would be followed. For brevity we shall refer to these Rules as the Rules of 1937. The respondents filed five petitions under Art. 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in appropriate places in our Judgment. 2. We are concerned with a new State formed as late as 1962 but the territory of this State has had a very long and chequered history. The area, where the trial is taking place is one of the backward tracts and it has, for a century and more, been specially administered. In that area the ordinary laws (particularly the two main Codes) in force in the rest of India, have not been applied. The successive Criminal Procedure Codes, which ordinarily would have governed the trial of offences, were always withdrawn from this area and special rules for administration of criminal justice were promulgated instead. Whether such rules (particularly the Rules of 1937) were validly enacted, whether they continue to be in force and whether they are rendered void by reason of Arts. 14 and 21 of the Constitution are the main problems requiring consideration. Before we consider these questions the history of law-making in these areas may first be told generally and then in relation to the Rules for the Administration of Justice promulgated in 1937 and at other times. 3. Even prior to the taking over of the Government of the territories formerly administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of India Act, 1915 (5 6 Geo V, Ch. 61) was enacted, while repealing by the Fourth Schedule the Government of India Act, 1870, section 71 was included in the 1915 Act which, in effect, provided the same procedure for making and applying laws as had been provided by the Act of 1870. The local Governments could propose draft regulations for peace and good Government of any part within their jurisdiction and the Governor-General after taking the draft regulations and the reasons into consideration could approve in his Council and assent to the Regulations. After his assent and on their publication in the official Gazette of India and in the local official Gazette, if any, they had the same force of law and were subject to the same disallowance as if they were the Act of the Governor-General in his Legislative Council. When the Government of India Act, 1919 (9 10 Geo. V, Ch. 101) was passed s. 52-A was inserted which read as follows :- 52-A. Constitution of new provinces, etc., and provision as to backward tracts. (1) . . . . . (2) The Governor-General in Council may declare any territory in British India to be a backward tract , and may, by notification, with suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him. (3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion. 6. After this the Scheduled Districts Act became obsolete and was repealed by the Adaptation of Laws Order, 1937. 7. Next came the inauguration of the Constitution. Article 244 made a special provision for the scheduled and tribal areas and the second clause of that article provided that the provisions of the Sixth Schedule were to apply to the administration of the tribal areas in the State of Assam. Originally in the Sixth Schedule to the Constitution the Naga Hills District was included as an autonomous d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. - In this section the expression appropriate Government means, as respects any law relating to a matter enunciated in the Union List in the Seventh Schedule to the Constitution. The Central Government; and as respects any other law, the Government of Nagaland. 8. Section 27 conferred power on courts, tribunals and authorities to construe, in the absence of adaptations, the laws in such manner, without affecting the substance, as may be necessary. By s. 28 all courts, tribunals and authorities discharging lawful functions were continued as before unless their continuance was inconsistent with the State of Nagaland Act. So much will suffice to describe the ground-work of law-making under the authority of British Parliament, the Governor-General in Council and the Parliament and Legislatures under the present Constitution. We shall now see the real crux of the problem because the Government and administration of these areas was often not car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being formed parts of British India. The Act was also extended to Khasi and Jaintia Hills and the authority of the Governor-General to enact the Act and of the Lt. Governor to extend it was challenged. The decision of the Judicial Committee is reported in Queen v. Burah I.L.R. 5 IndAp 178 which held that both the powers existed. On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt. Governor extended the whole of the Act to the Naga Hills District and vested the administration of Civil and Criminal jurisdiction in the Commissioner of Assam subject to his own direction and control. The Commissioner was to exercise the powers of the High Court in Civil and Criminal cases triable in the Courts of the said districts but no sentence of death was to be carried out without the sanction of the Lt. Governor and it was competent to the Lt. Governor to call for the record of any criminal or civil case and to pass such orders thereon as he saw fit. The notification also ordered that cases not then triable in the ordinary British Courts would not be triable therein and even in those cases which were triable in those courts, the officers were to guide themselves by the spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Sentences above that period were appealable to the Commissioner. The Lt. Governor was empowered to review the proceedings of all subordinate officers. Rule 23 bore upon the manner of the trial. It provided that the procedure of the Political Agent and his Assistant was to be in the spirit of the Code of Criminal procedure as far as it was applicable to the circumstances of the District and consistent with the Rules. The main exceptions were : (a) Verbal notices fixing a date to appear were sufficient when the police was employed to convey them or the person was not resident or in the district or where his place of abode was not known. (b) Political Agent and his Assistant were to keep only the substance of all proceedings in cases requiring sentences below three years. In other cases, full notes of the proceedings had to be kept in English. (c) Proceedings before Mouzadars etc. were not required to be in writing but if a person could be found to be able to write, a brief note of the proceeding was to be made. (d) All fines levied by the Mouzadars etc. were to be paid to the Political Agent or his Assistant or some officer specially empowered by the Political Agent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book till the Government of India Act, 1935 came into force when it was repealed by the Adaptation of Laws Order, 1937. The scheme of the relevant provisions of this Act was this. The Act extended to the whole of India. It defined Scheduled Districts by reference to its First Schedule and these districts were to include such other territories in which the Secretary of State in Council declared the provisions of 33 Vict. Ch. 3 (section 1) to be applicable. The Act repealed other enactments by its Second Schedule. By sections 3 and 4 the local Government was enabled, with the previous sanction of the Governor-General in Council to notify what enactments were in force and what were not in force in any of the Scheduled Districts and to correct any mistake of fact in a notification already issued under that Act but not so as to change a declaration once made and on the issue of such notifications the intended effect was to follow. By s. 5 the local Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act in force in British India. Section 6 and 7, which were the subject of great discussion in this appeal, may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were withdrawn from the Naga Hills. 17. By proclamation No. 2832 dated the 1st September, 1905 the Governor-General, with the sanction of His Majesty, constituted the Province of Assam (to which were added certain districts of East Bengal) and appointed a Lt. Governor. The new Province was known as Eastern Bengal and Assam. The Governor-General in Council also passed on the 29th September, 1905 an Act (No. 7 of 1905). It provided by s. 5 as follows :- 5. Power to Courts and Local Governments for facilitating application of enactments. For the purpose of facilitating the application to any of the territory mentioned in Schedule A, B or C of any enactment passed before the commencement of this Act, or of any notification, order, scheme rule, form or by-law made under any such enactment, - (a) . . . . . (b) the Local Government may, by notification in the local official Gazette, direct by what officer any authority of power shall be exercisable, and any such notification shall have effect as if enacted in this Act. 18. Naga Hills were in Schedule A. 19. On November 29, 1906, the Lt. Governor prescribed Rules for the Administration of Justice and Police in the Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assam became a Governor's Province. 22. We next come to March 25, 1937. On that day the Governor of Assam prescribed revised Rules under the powers vested in him by s. 6 of the Scheduled Districts Act. These Rules did not materially differ from the Rules of 1872, 1874 and 1906. The Rules of 1937 began by stating that they cancelled all previous orders on the subject. The changes that were introduced were of the pattern we have known before. The administration of the Naga Hills was vested in the Governor of Assam, the Deputy Commissioner, the Additional Deputy Commissioners and Assistants to the Deputy Commissioner, the Mouzadars, etc. The Deputy Commissioner, the Additional Commissioner and Assistants to the Deputy Commissioner were to be appointed by the Governor. As a result of these changes, the provisions of Part III dealing with criminal justice were suitably amended. The first change was to assign duties to the Additional Deputy Commissioner. The term Deputy Commissioner was said to include an Additional Deputy Commissioner and the latter had the same powers as the former (Rule 15A). The terms District Magistrates, Additional District Magistrates and Magistrates of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date, by notification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such modifications and adaptations specified in the notification as the Government in question may deem necessary or expedient to bring it into accord with the Government of India Act, 1935. 24. In 1945 the Assam Frontier (Administration of Justice) Regulation, 1945 (Regulation 1 of 1945) was enacted. It was originally made applicable to Balipara, Lakhimpur, Sadiya and Tirap Frontier Tracts. It was applied to Tuensang in 1955. In the main these Regulations were the same as the Rules of 1937 applicable in the Kohima and Mokokchung Divisions but slight difference existed in the powers of the High Court in the matter of transfers and appeals against acquittals. As these were the subject of an argument we shall refer to these difference later. 25. Before the formation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced earlier by us) did not mention rules as such. We do not agree. The saving clause preserved all notifications. The Rules of 1937 were enacted by notification and if notifications were saved the Rules in the notification were also saved. After the passing of the Government of India Act, 1935, the Rules of 1937 would be successively preserved by Sections 292 and 293 of the Government of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of the Constitution. The real questions are whether they were invalid for any reason to start with or became void after the Constitution. 27. The powers of the Governor-General in Council and now of the President derived from the various constitutional documents are not and indeed cannot be in doubt. Hence the attempt of the respondents is to challenge the powers of the Lt. Governor, Chief Commissioners and the Governor who have in turns made Rules for the administration of the areas. The attack is on the Rules of 1906 and 1937 as being incompetently made under the Scheduled Districts Act and on Sections 6 and 7 of the Scheduled Districts Act, if it be held that the Rules were competently made. We shall deal first wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor-General in Council himself. The Act was understood as conferring full powers to regulate not the administrative procedure only but also the procedure for administration of criminal justice. As the Rules of 1872, 1874, 1906 and 1937 were almost the same (except for a few changes rendered necessary by the altered political conditions) it is clear that a succession of officers saw the necessity of Rules controlling not only the administrative side but the judicial side of administration of justice. In our judgment the construction of Sections 6 and 7 attempted by the respondents cannot be accepted. 30. It is next contended that the Act itself was bad because the Legislature did not legislate on the subject of judicial procedure but left essential legislation to a delegate, without laying down any or at least enough guidance in the Scheduled Districts Act for those who were to make Rules under it. In this connection learned counsel has drawn our attention to several rulings in which the question of excessive delegation has been considered by this Court and in particular we have been referred to Re the Delhi Laws Act, 1912, [1951]2SCR747 , Hamdard Dawakhana (Wakf) Lal Kuan v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther guide as the last were continued in force by s. 7. Indeed, the subsequent Rules of 1906 and 1937 repeated the Rules of 1872 1874 with amendments necessary owing to political changes and only slightly liberalised them in some ways. We do not consider that there was excessive delegation of legislative authority by the Legislature. 32. It is next contended that s. 7 of the Scheduled Districts Act did not confer any power upon the local Government to alter in any way the Rules made by the Governor-General in Council. That section says that Rules which had hitherto been described by the Governor-General or the local Government for the guidance of the officers appointed within any of the scheduled districts were to continue to be in force unless and until the Governor-General or the local Government, as the case may be, otherwise directed. It is admitted that the Governor-General in Council, possessing an overriding power, might even have amended the Rules made by the local Government. But it is submitted that the Governor-General in Council could amend his own Rules and the local Government could amend its own Rules but the Local Government, being a delegate, could not amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by this Court that it did not matter under which Order it was dismissed but that no second suit could be brought on the same cause of action without getting rid of the order dismissing the suit. In this way this Court applied the spirit of the Code and put aside the technicalities by attempting to find out whether the dismissal was referable to O. 9, r. 8 or O. 17, r. 3 of the Code. That case illustrates how the spirit of the Code is used rather than the technical rule. In the same way, under the criminal administration of justice the technical rules are not to prevail. Over the substance of the matter. The Deputy Commissioner in trying criminal cases would hold the trial according to the exigency of the case. In a petty case he would follow the summons procedure but in a heinous one he would follow the procedure in a warrant case. The question of a Sessions trial cannot arise because there is no provision for committal proceeding and there are no Sessions Judges in these areas. Therefore, the Deputy Commissioner who was trying the case observed that he was going to observe the warrant procedure and in the circumstances he was observing the spirit of the Code. 34. Laws of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t similarly circumstanced. These backward tracts are not found suitable for the application of the Criminal Procedure Code in all its rigour and technicality, and to say that they shall be governed, not by the technical rules of the code but by the substance of such rules is not to discriminate this area against the rest of India. 36. It is contended that there is discrimination between the Tuensang District and the other two districts of the State because in the other two districts the Code of Criminal Procedure applies. This seems to be stated in the judgment of Mr. Justice C. Sanjeeva Rao Nayudu who proceeded upon a concession of Advocate-General of Nagaland. We have, however, no reason to think that the Advocate-General could have conceded this point. It was made clear to us that there was some mistake and the assumption made by Naidu J. was based on a misapprehension. It is now admitted by Mr. A. K. Sen on behalf of the respondents that the Criminal Procedure Code does not apply to any of the three districts and therefore there is no question of any discrimination between one district and another in Nagaland. 37. Lastly, it is contended that the Rules themselves allow fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khimpur, Sadiya and Tirap tracts and had been appointed in Tuensang Division in 1955. The main differences are in the matter of appeals against acquittals and the power of transfer. In so far as the appeals against acquittals are concerned, it is, of course, obvious that where such a power is not conferred there cannot be an appeal against acquittals. In so far as transfer is concerned, we see no difficulty because the rules were different to start with in different districts and even if the provisions for transfer may not be in one part the spirit of the Code of Criminal Procedure would permit transfer in that part. Similarly, in some places confirmation of sentence above 7 years is required and in some others there is only a right of appeal. This depends on how advanced each area is. The attempt, of course, is to bring these territories under the Criminal Procedure Code applicable in the rest of India, by such stages as appeal justified. As that stage is not yet reached little differences must exist but no discrimination can be spelled out from the differences. Art. 371A of the Constitution itself contemplates a different treatment of these tracts and the differences are justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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