TMI Blog1944 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ther Ordinance II is invalid, especially as this may be of assistance in deciding other questions which may arise hereafter as to the validity of Ordinances made, in cases of emergency, by the Governor-General under the authority of Section 317 and para. 72 of Schedule 9 of the Government of India Act, 1935. 2. Their Lordships must, however, make a preliminary observation on the way in which the issue of the validity of the Ordinance has been dealt with by, the Indian Courts. The appeal from the Special Magistrate who convicted the accused was brought to the High Court under its criminal revisionary jurisdiction by a petition for revision under Sections 435 and 439 of the Code of Criminal Procedure. This assumes that the Court below was a valid inferior Court whose decision calls, in the view of the appellants who were convicted and sentenced by it, for revision. But if the Special Magistrate who tried the case was a valid Court, duly authorised by the Ordinance, then by the very terms of the Ordinance, there is no appeal to the High Court Mr. Justice Sen, at the beginning of his judgment in the High Court, points this out very clearly. If, on the other hand, the Ordinance had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the enemy on December 23 and again on December 25 : earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth. Their Lordships entirely agree with Mr. Justice Rowland's view that such circumstances might, if necessary, properly be considered in determining whether an emergency had arisen; but, as that learned Judge goes on to point out, and, as had already been emphasised in the High Court, the question whether an emergency existed at the time when an Ordinance is made and promulgated is a matter of which the Governor-General is the sole judge. This proposition was laid down by the Board in Bhagat Singh v. The King-Emperor (1931) L.R. 58 I.A. : S.C. 33 Bom. L.R. 950 and is plainly right. On September 3, 1939, the date on which war was proclaimed between His Majesty and Germany, the Governor-General, acting under Section 102 of the Government of India Act, 1935, had pro-claimed that a grave emergency exists whereby the security of India is threatened by war, and thereupon the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral the possibility, when faced with an emergency, of making provisions which could be instantly applied if the danger increased and became even more critical to the part of India where it was necessary to apply them. It would in fact (as Beaumont C.J. observed in reference to a similar objection in the Bombay High Court, in Sreekant Pandurang v. Emperor [1943] Bom. 331, 351 : S.C. 45 Bom. L.R. 323), deny to the Governor-General, when faced with an emergency, the exercise of any foresight in the protection of the State. He may well have considered that, in view of the existing emergency, it was necessary to have a scheme for Special Courts drawn up and all ready for application if the existing emergency was further aggravated. A very similar situation arose in this country when, under the Emergency Powers Act, the Government devised and prepared for instant application a system of Zone Courts which were to be put into force only if, owing to invasion by the enemy or the like, the ordinary courts in some part of the country were judged unable to function satisfactorily. Mr. Justice Sen in the High Court expressed the opinion that the provisions of this Ordinance proclaim unmistak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well-known decision in Russell v. The Queen (1882) 7 App. Cas. 829. In that case the Canadian Temperance Act, 1878, was challenged on the ground that it was ultra vires of the powers of the Parliament Act of Canada. The Temperance Act was to be brought into force in any country or city, if upon a vote of a majority of the electors of that country or city favouring such course, the Governor-General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount to a delegation of legislative power to a majority of the voters in city or county. Their Lordships said (p. 835): The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons powers to legislate. Parliament itself enacts the condition and everything which is to foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law as to the revisionary jurisdiction of the High Court, just as the Indian Legislature itself might do. 12. There remains to be considered another objection to the validity of the Ordinance which is, as their Lordships understand, the main ground upon which it has been held to be ultra vires. The objection may perhaps be stated in more ways than one, but the substance of it, as appears both from the judgment of Sir Harold Derbyshire in the High Court and of the Chief Justice in the Federal Court, is that the Ordinance makes it possible to discriminate between one accused and another, or between one class of offence and another, so that cases may be tried either in the Special Courts or under the ordinary and well-established criminal procedure according to the direction and decision of Provincial authorities. It is evident that this is an aspect of the matter which has greatly troubled the majority of the Judges in India who have had this case before them, and in view of the well-established practice in India by which decisions in criminal cases are open to review by a higher Courts it is natural that those who are versed in applying this system should feel disturbed by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ordinance there would be no trial by jury and no right of appeal and no right of revision by superior courts, including the High Courts, such as are enacted by the Code. In effect, he said, it is the Provincial Government or the District Magistrate acting not in a judicial capacity but in an administrative capacity that deprives the subject of his right under the Code and repeals its valid provisions as far as he is concerned. That, in my view1, is repealing the Code of Criminal Procedure in part-in that instance legislation ad hoc for the man's case. He added that he did not find authority in Section 72 to justify this result; and in his view the above-quoted sections, which he declared invalid, purported to authorise persons other than the duly authorised legislature constituted under the Government of India Act, 1935, to repeal ad hoc certain provisions of the Criminal Procedure Code and of the Litters Patent of the High Court. 15. Mr. Justice Khundkar agreed with the Chief Justice on this point and stated his objection to the above-quoted sections of the Ordinance thus: The result is that no man accused of an offence may know whether he is to be tried by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. This was the ground upon which the Chief Justice and Mr. Justice Zafrulla Khan based their decision that the appeal of the Crown should be dismissed. 19. With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better if circumstances permit to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged with a given crime; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian Constitution to render invalid a statute, whether passed by the Central Legislature or under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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