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TMI Blog1949 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government of Bihar, in exercise of their powers under the proviso mentioned above, extended the application of the Act for a further period of one year from 15th March, 1948, and it was during this extended period that the orders for arrest and detention against the appellants were initially made. 3. The competency of the Provincial Government to extend the application of the Act by a notification, in the manner laid down in the proviso to s. 1 (3) of the Act, was challenged in a number of analogous cases which came up to this Court in May, 1949. Vide Jatindra Nath Gupta v. The Province of Bihar and Others [1949] F. C. R. 595 ; A.I.R. 1949 F.C. 175. By a judgment delivered on 28th May, 1949, this Court held that the proviso to s. 1 (3) of the Bihar Maintenance of Public Order Act was ultra vires the Provincial Government as it amounted to a delegation of legislative function to an outside authority and consequently the extension of the operation of the Act beyond the period of one year originally fixed was void and inoperative. It was further held that the Bihar Act V of 1949, which the Bihar Legislature had passed in the meantime, and which purported to amend the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of India Act, and consequently it is void and inoperative and any detention order passed Hinder it must be held to be illegal. Section 88 of the Government of India Act runs as Hollows: (1) If at any time when the Legislature of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the Governor-General, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provisions would under this Act have been invalid unless, having been reserved for the consideration of the Governor-General, it had received the assent of the Governor-General. 6. It is admitted that the Bihar Legislature was not in session when this Ordinance was passed. It was urged, however, in the Court below, and the argument pas repeated before us, that no circumstance existed as is contemplated by s. 88 (1) which could justify the Governor in promulgating this Ordinance. This obviously is a matter which is not within the competence of courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Sub-section (3) of the section empowers the Provincial Legislature to make laws for a province or any part thereof with respect to any of the matters enumerated in List II (the Provincial Legislative List), and the Dominion Legislature is forbidden to legislate on such matters for any province or part of a province. As regards other parts of India which lie outside the provinces as defined in the Act, the Dominion Legislature has been given the authority under sub-s. (4) of the section to legislate on any matter specified in the Provincial List. Sub-section (2) of s. 100 deals with what has been called the Concurrent Legislative List, and both the Dominion Legislature and the Provincial Legislature can legislate upon the items enumerated therein. When both the Legislatures can operate on the same field, conflict is likely to arise and s. 107 of the Government of India Act lays down rules as to how repugnancy is to be avoided when it arises between Provincial and Dominion legislation. Section 107 of the Constitution Act is in these terms: (1) If any provision of a Provincial law is repugnant to any provision of a Dominion law which the Dominion Legislature is competent to enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the items in the Concurrent List. In the second place, there must be repugnancy between the two provisions. 9. This leads us to enquire first of all whether the impugned Ordinance is in respect to matters enumerated in the Provincial or in the Concurrent List. It is settled by the decision of the Judicial Committee in Megh Raj v. Allah Rakhia (1947) 74 I.A. 12 that when the province acts solely within its powers under the Provincial List without relying on any power conferred by the Concurrent List, no question of repugnancy under 8.107 of the Government of India Act would arise. The point raised in that case was whether the Punjab Restitution of Mortgaged Lands Act (Act IV of 1938) was void under s. 107 (1) of the Government of India Act to the extent that it conflicted with Certain provisions of the Civil Procedure Code Slid other existing Indian law. What that statute enacted, in substance, was to set aside the normal procedure for redemption in the case of mortgages of land with possession and empower the Collector, on fn application by the mortgagor, to extinguish the mortgage in certain circumstances or declare it extinguished and restore possession. The matter came up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of all courts except the Federal Court with respect to any of the matters in thrust; procedure in Rent and Revenue Courts. 11. The expression Public order with which the first item begins is, in our opinion, a most comprehensive term and it clearly indicates the scope or ambit of the subject in respect to which powers of legislation are given to the province. Maintenance of public order within a province is primarily the concern of that province and subject to certain exceptions which involve the use of His Majesty's forces in aid of civil power, the Provincial Legislature is given plenary authority to legislate on all matters which relate to or are necessary for maintenance of public order. Preventive detention for reasons connected with the maintenance of public order and persons subjected to such detention are expressly mentioned as being included in this item, whereas preventive detention for reasons of State and connected with defense, external affairs and relations with acceding States have been placed separately under Item No. (1) of the Federal List. 12. Looking now to the specific provisions of the Ordinance we see that the preamble states in clear words th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21 any police officer may arrest without warrant any person who is reasonably suspected of having committed an offence punishable under the Ordinance. Section 22 lays down how cognizance has to be taken of any alleged contravention of the provisions of the Ordinance and sub-s. (2) provides that any Magistrate or bench of Magistrates who are empowered to try cases summarily under s. 260 (1) of the Code of Criminal Procedure could try any contravention of the provisions of the Ordinance or any order passed under it as the Provincial Government may by a notification direct. Section 23 repeals the Bihar Maintenance of Public Order Act, 1947, the Amending Act V of 1949 and also the previous Ordinance passed on 3rd June, 1949. Section 24 saves all proceedings commenced or acts done under the earlier Ordinance. 13. Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same. It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences I agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other lists is immaterial. The Judicial Committee made it perfectly clear in the case mentioned above that the extent of invasion by a Provincial Act into subjects enumerated in other lists is an important matter not because the validity of an Act can be determined by discriminating between degrees of invasion but for determining what is the pith and substance of the Act. Judged by that test, it can scarcely be argued that the impugned Ordinance is a legislation not on public order or preventive detention for reasons connected with it but on Criminal Procedure. It is true that detention of a person without a judicial order in a sense goes against the provision of the criminal law but that is the very essence of prevent the detention. The Ordinance lays down what in the opinion of the legislative authority is essential for maintenance of public order in the province. That is the true nature and character, of the legislation which unquestionably brings it within Item (1) of List II. The offences that have been created and the procedure that has been laid down for arrest and trial of the offenders are only ancillary things without which no 1 effective legislation would have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Governor. It is difficult to see on what materials this contention can be seriously pressed. It is to be noted that the Bihar Maintenance of Public Order Act, 1947, itself contained a provision under which the Provincial Government, with the assent of both Houses of the Legislature, could, by a notification, prolong its life for one year more after the 15th of March, 1948, when the Act was normally due to expire. The Provincial Government did exercise these powers and the Act was extended till the 15th of March, 1949. Then again in March, 1949, an Amending Act was passed, by which the original Act was further extended the 31st March, 1950. On 28th May, 1949, this Court held that the extension of the Act by means of a notification of the Provincial Government as well as the subsequent amending Acts wore ultra vires and void. In these circumstances, the Governor of Bihar promulgated an Ordinance on the 3rd of June, 1949, which incorporated, in substance, the provisions of the Maintenance of Public Order Act. It is admitted that at that time the Legislature was not actually sitting, though no formal order of prorogation was made. On this ground the Ordinance was held to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions that this invalid section would make the whole Ordinance invalid. To this question, the answer must certainly be in the negative. There is no necessary and inseparable connection between this section and the rest of the Ordinance and none of the material provisions of the latter depend upon it in any way. If the section is truck out, the rest of the Ordinance will certainly survive as an effective piece of legislation fulfilling the identical object for which the Ordinance was passed. 20. The main attack of Mr. Umrigar is, however, directed against the proviso to s. 4(1) of the Ordinance and kit was strenuously argued by him that this clause was beyond the capacity of any Provincial Legislature to enact and it was not a matter included in any of the items in the Provincial List. Now s. 4(1) of the I Ordinance runs as follows: When an order is made in respect of any person under cl. (a) of sub-s. (1) of s. 2, as soon as may be after the order is made, the authority making the order shall communicate to the person affected thereby, so far as such communication can be made without disclosing facts which the said authority considers it would be against the public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Umrigar laid considerable stress upon the following observations made by a Full Bench of the Patna High Court in Murat Patwa v. The Province of Bihar I.L.R. (1947) Pat. 628 In our opinion, the phrase 'preventive detention' means detention, not, as in the case of ordinary imprisonment, in respect of the actual commission of an illegal act, but detention in reasonable anticipation that some illegal act or acts may otherwise be committed and in the context of Item 1 of List II in the Seventh Schedule to the Government of India Act the illegal act must be one connected with the maintenance of public order. A further limitation upon the nature of the illegal act or acts in question is provided by s. 2 (1) of the Act which requires that they must be such as are not only prejudicial to the maintenance of public order but prejudicial also to the public safety. What distinguishes preventive from arbitrary detention, an entirely different subject-matter of legislation, is the existence of the reasonable anticipation that, Mine illegal act or acts may otherwise be committed. It is obvious, therefore, that anything that weakens the fair and proper determination of the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed to them but when that point has been settled, courts of law have no right whatever to enquire whether their jurisdiction has been exercised wisely or not. 24. Preventive detention for reasons connected with the maintenance of public order is one of the subjects upon which the provinces have been given the authority to legislate under the Government of India Act. The court has got to decide on a consideration of the true nature and character of legislation whether it is really on the subject of preventive detention or not. Once that point is decided in favour of the legislative authority, and it is held that it has not trespassed beyond the limits of its assigned powers, it is not for the courts to criticise the wisdom and policy of the Legislature. We desire to point out that quite a correct view on this matter was taken by a Bench of the Calcutta High Court in Sushil Kumar v. Government of West Bengal (1949) 53 C.W.N. 545 . The contention of Mr. Umrigar, therefore, cannot be accepted as sound. 25. These are the constitutional points which were raised on behalf of the appellants and pressed for our consideration in these appeals. 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