TMI Blog1948 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... e result is that there is no preliminary question of fact which can be submitted to the Courts and that in effect there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith. ( 3. ) In support of this conclusion, the learned Lord relies on four circumstances First, that it was a matter for executive discretion and the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a judge in a Court of law could not have been contemplated: Secondly, that the Home Secretary could act on hearsay and was not required to obtain any legal evidence and therefore the Home Secretary was not acting judicially in such a case: Thirdly, that in many cases he will be acting on information of a most confidential character which could not be communicated to the person detained or disclosed in Court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm: and Fourthly, that the person who is primarily entrusted with the duties under the Regulation is one of the Principal Secretaries of State and a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of what the Secretary of State himself deems reasonable ? Between these two readings, there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of State had for his belief may, if challenged, be examined in a Court of law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man, and to enable the Court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he cannot, if he has acted in good -faith, be called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief. In discussing these rival views, the learned Lord refers to the following rule of construction: The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legis lation as to promote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detention, the authenticity and good faith of which were not impugned, constituted a complete answer to an application by the appellant for a writ of habeas corpus, and no affidavit by the Home Secretary justifying his cause of belief was necessary, and the decision in Liversidge v. Sir John Anderson, (1942) A. C. 206 : (1941 -3 ALL E. E. 338) was followed. Viscount Maugham states the two propositions laid down in the Liversidge's case (1942 A. C, 206 : (1941) 8 ALL E. K. 838) ) thus: Your Lordships there decided that the words, in the context in which they are found, refer simply to the belief of the Secretary of State based on his view as to there being reasonable cause for the personal belief which justifies the detention order , ., . Your Lordships also expressed the opinion that the Secretary of State could not be culled on to disclose his information or grounds of belief if he took the view that It would be contrary to the public interest to do so. He held that the order itself was a sufficient answer and that it must be presumed that the Secretary of State had what he considered Tea -Sonable cause for his belief. ( 8. ) The following observations from the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the Secretary of State, but the argument is the other way when it is found, as it is in this regulation, that elaborate provision is made for the safeguarding of the detained person's interests. I refer to the constitution of advisory committees to which any person aggrieved by a detention order way make representations. The duty is imposed on the chairman to inform the objector of the grounds on which the detention order has been made and to furnish him with such particulars as are in the chairman's opinion sufficient to enable him to State his case, I say nothing as to the efficacy of this safeguard, for I do not know how it operates in practice, but I emphasize the significance of its presence in the regulation. It suggests that this special procedure was introduced for the very reason that review by the law Courts was excluded. ( 10. ) I nest come to the class of cases to which Section 16 A would apply. With respect to this class the case in Basanta Chandra Qhose v. King -Emperor decision of the Federal Court, is instructive in so far as it dealt with Ordinance No, in of 1944. Section lo (l) of that Ordinance ran as follows: No order made under this Ordinanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long line of decisions in England and this country on the Subject, other than the ground that B. 26 was ultra vires, 8,10 of Ordinance III will no more prevent it from be finding than Section 16, Defence of India Act did. Saab, an invalid order theugh purporting to be an order, will not In fact be an 'order made under this Ordinance' or having effect by virtue of Section 6 as if made under this Ordinance at all for the purposes of Section 10. The grounds indicated in the long line of decisions in England referred to by the learned Chief Justice of India are these discussed in the 'speeches in the House of Lords in Liver sidge v. Sir John Anderson, (1942) A. C. 206 : (1941 -8 ALL E. Rule 338). The esect of this decision of the Federal Court is that in the present case it may be said that the addition of s, 16 -A does not make any material difference in the curtailment of the powers of this Court to interfere with orders of detention passed under the Act, theugh of course only on the grounds indicated in Liversidge v. Sir John Anderson, (1942) A. C. 206 : (1941 -3 ALL E. Rule 338). ( 11. ) This decision, however, does not stand alone. There is a subsequent decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etained under Regulation III is necessary before the Court can get over the bar to jurisdiction under the section imposed by sub -section (8). Complaints as to the. illegality or impropriety of the detention, if the detention be under Regulation III, can .be dealt with under the procedure laid down in Sections 3, 4 and 5 of Regulation III and may well both basis of other claims which a Court can properly entertain, but such allegations can - not in our judgment be sufficient to give the Court jurisdiction under' Section 491. If on the facts of the case it is clear that a person is being detained under Regulation III, even theugh a Court might think if it investigated these facts, it might find that the detention was illegal or improper, still the Court cannot in our judgment interfere under Section 491. In this case it is clear that the Government has been claiming to detain the appellant from 9th September 1940, onwards under Regulation III. ( 12. ) The learned Chief Justice then went on to decide the only point raised on be half of the appellant which could possibly have enabled the Court to exercise jurisdiction under Section 491 and that was if in fact the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Governor -General in Council, and under the hand of the Chief Secretary to Government, shall be issued to the officer, in whose custody such person is to be placed. (2) the warrant of commitment shall be in the following -form : (The form is not relevant). (3) The warrant of commitment shall be sufficient autherity for the detention of any State prisoner in any fortress, jail, or other place within the territories subject to the presidency of Port William. ( 13. ) In the case before the Federal Court, it was neither alleged nor established that the warrant of commitment was not in the prescribed form or not in conformity with the provisions of the Regulation. A warrant duly signed by R, Tottenham, Additional Secretary to the Government of India, and containing the statement that the Governor. General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with the Indian States, has seen fit to determine that Birpal Singh, Ex -Rana of Bhajji State, shall be placed under personal restraint at Simla was produced. It was not even suggested that any of the grounds on which the Court could in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... autherity empowered under Section 15 has exercised its or his mind on the material placed before it or him, then an order of detention, theugh purporting to be passed under s, 2 (2) must be deemed' to be not an order under Section 2. ( 15. ) These , then, are the only grounds on ' which in spite of Section 16 and Section 16 -A of Madras Act. I [l] of 1947 this Court can exercise the power conferred on it by Section 491, Criminal P. C. If these grounds exist, in respect of any detained persons, such a person will not be a person detained or deemed to have been detained under fl. 2 of the Act. ( 16. ) If these grounds do not exist, it is well established on the highest autherity that this Court, 'cannot investigate the sufficiency .of the material or the reasonableness of the grounds,' vide Emperor v. Sibnath Banerjee upon which the Government or the empowered officer or autherity had been satisfied. It is not competent for this Court to call upon the Government or the detaining autherity to disclose the information and material on which it or he was satisfied as to the necessity for the detention of the person concerned. The satisfaction required by the sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that he be detained. Section 15 provides for the delegation of the powers and duties of the Provincial Government under the Act to such officers or autherities as the said Government may by order specify. Section 2(2) 'directs that when any order is made under sub -a. (1) of Section 2 by an officer or autherity empowered under Section 15 that officer or autherity shall forthwith report the fact to the Provincial Government together with the grounds on which' the order has been made and such other particulars as, in the opinion of such officer or autherity have a bearing on the necessity for or expediency of the order. Section s (l) provides that whenever an order in respect of any person is made by the Provincial Government or by any officer or autherity subordinate to them the Provincial Government shall communicate to the person affected by the order the grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make if he wishes a representation against the order. Under Section 3, Sub section (8), the Provincial Government is directed to constitute an advisory council whenever necessary, Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of the powers conferred by Section 88, Sub -s, (i) aforesaid, the Governor hereby promulgates the following Ordinanoe. There is no need to make any detailed reference to th'e provisions of this Ordinance apart from S. I, Section 2 provides for the insertion of new Sections 2A and 2B in Madras Act I Q] of 1947 which -render penal the harbouring or concealing of persons ordered to be detained and the reproducing or publishing of statements made by persons be ordered. Power to seize and search for copies of documents which have been forefeited is conferred by the new Section 12A the insertion of which is provided for by Section 3 of the. Ordinance. Then occurs S. of the Ordinance round which a considerable portion of the arguments centred. It may be set out in extenso. 4, After Section 16 of the said Act. the following section, shall be inserted, namely:16A. Nothing in Section 491, sub -ss. (1) and (3), Criminal' P, C. 1898, shall apply to any person detained, or deemed to have been detained, under Section 2 of this Act. by the Provincial Government or any officer or autherity autherized by them in that behalf, The validity of the Ordinance generally and of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the charge finally reduces itself to an attack on the propriety of issuing an order of prorogation on the 24th. If the Legislature was in session on the 24th, it was pointedly asked, why was not the Legislature immediately summoned to consider the necessity or desirability to legislate in the terms of what has now been promulgated in the shape of an Ordinance ? It was emphasised that the prorogation was just on the eve of the promulgation of the Ordinance and was made, it was suggested, with a view to avoid a discussion by the Legislature, at any rate, at that stage, of the somewhat drastic provisions of the intended legislation. The propriety or otherwise, however, of The order of prorogation is not a matter for consideration by this Court. Assuming its impropriety, that would in no way furnish a legal ground for invalidating The Ordinance that has been issued. ( 25. ) Presuming , as we must, the correctness of the recitals in the preamble to the Ordinance and in the absence of any admissible evidence that any of these recitals is inaccurate, we must hold that the conditions laid down in Section 88 (1), Government of India Act are satisfied and that the attack on the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . c. 99 : (68 l.J .P. C. l) Lord Watson said: The word 'include' is very generally read in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute ; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural Import, but also these things which the interpretation clause declares that they shall include. My construction of Item 2 of List III receives support from the decision of the Patna High Court in Vishwanath v. Sri Mahant, 17 pat. 714 at 725 : (A.I.R. (26) 1939 pat. 90) where it was held referring to Item 4 of the same List which is in similar terms that 'all matters whether relating to procedure or not included in the Code of Civil Procedure on the date of the pas. sing of the Government of India Act are concur. rent legislative subjects,' and that the words 'and all matters, etc.' enlarge the subjects of concurrent legislation to the extent stated above. The decision in Rajah Bejoy Singh v. Surendra - 55 M. L. J. 466 : (A.I.R. (15) 1928 P. C. (34) Cited on behalf of the detenus in which it was held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gous to these applied to the .Canadian Constitution be preferred. It is unnecessary to decide whether item 2 of the Concurrent Legislative List should be read along with items 1 and 2 of the Provincial Legislative List so as to allot Section 491 to the former sphere or whether it should be held to fall within the -scope of item 2 of the Provincial Legislative List read with item 1, there being to that extent a subtraction out of item 2 of the Concurrent Legislative List. As observed by the Privy . Council in Profulla Kumar v. The Bank of Commerce Ltd., 1947 -2 M. L. J. 6 at 13 : A.I.R. (84) 1947 P. C. 60, 'It is not possible to make so clean a cut between the powers of the various Legislatures: they are be und to overlap from time to time.' For the purpose of the present contention it is sufficient to hold that the matter falls under either the one or the other of the items referred to above. In this view, the argument based on 8. 104 (l) must be rejected. ( 28. ) Alternatively , it was argued that Section 4 is invalid as it is a provision of a Provincial law which is repugnant to a provision of an existing law (namely, Section 491, Criminal P. C.) with respect to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the Dominion Legislature may at any time thereafter enact further legislation with respect to the same matter. The argument that Section 107 (l) is absolute is, I think, answered by the language of the sub -section itself which provides that it operated 'subject to the provisions of this section,' the only relevant provision for this purpose being sub -section (2). On my reading of Section 107, the present case falls under Section 107 (2) and the procedure laid down in that sub -section or rather what is equivalent to it under Section 88 (1), namely, the obtaining of instructions from the Governor. General having been satisfied, Section 4 of the Ordinance would prevail over Section 491, Criminal P. C. and its validity cannot be questioned on this ground even if Section 4 is assumed to relate to a matter in the Concurrent Legislative List. Whether and how far Section 4 is retrospective and whether and how far it affects the jurisdiction of the High Court in dealing with applications under Section 491 are quite different matters which I shall in due course deal with. The point was also raised that Section 4 of the Ordinance is invalid by reason of Clause 44 of the Lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n inherent power. ( 30. ) The question has next arisen as to whether Section 16 -A would apply to the applications before us which for. this purpose would fall into two groups, namely, these which were filed before and were pending on 26th May 1948 when Section 16a came into operation and these which were filed subsequent to 25th May 1948 theugh in respect of orders of detention which had been passed prior to that date. The argument on behalf of the Crown goes so far as to claim that the jurisdiction under Section 491 ceases to be exercisable on the pro -mulgation of the Ordinance and that this is indicated by the sweeping reference 'any person detained or deemed to have been detained' under Section 2 of the Act. ( 31. ) There was a learned discussion as to how in America a person can be deprived of his liberty only by judicial process by reason of the interpretation placed by the American Courts on what are known as the Fifth and Fourteenth Amendments, and how the constitutional position in India is different. It was pointed out that according to Dicey the rule of British jurisprudence that no member of the Executive can interfere with the liberty of a British sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by a reference to Section 8, els, (d) and (0, Madras General Clauses Act, 1 of 1891 which provides that: Where any act to which this Chapter applies repeals any other enactment, then the repeal shall not affect any right accrued...under any enactment so repealed ; or affect any...remedy in respect of any such right.... This is, however, answered by the decision of the Privy Council in Abbott v. The Minister of Lands, (1895) a. c. 425 : (64 L. J. P, C. 167) where it was held that a mere right existing at the date of a repealing statute to take advantage of the provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause in an interpretation statute. In any event, as I have already indicated, there would be no content whatever for the words 'persons deemed to have been detained under the Act' if Section 16 -A is to operate only in regard to persons detained after 25th May 1'JdS. The legitimate inference would, therefore, both at persons whether detained under the Act before 25th May 1918 or deemed to have been detained under the Act. by virtue of orders passed before the Act of 1947 under the Ordinance then in force wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved in the batch of applications before an is a challenge against the order of detention itself and not that even if the order was valid at its inception the continuance of the detention has become illegal or improper in view of what happened subsequently or by reason of what . the Government subsequently did or failed to do. I say this merely to guard myself against heve understood as having decided anything -more than what is strictly required by the applications under consideration. ( 35. ) The broad division of the application into two categories, namely, (l) these which were filed before 25th May 1948, and (2) these which were filed thereafter has, as already been indicated, to be borne in mind in determining whether there is any and i so what difference in our jurisdiction in dealing with each of the two groups. If Section 4 of the Ordinance is not to be construed so as to render Section 16 -A of the Act applicable to pending applications, it follows that these applications have to be dealt with in the light only of Section 16 (l) of the Act but not in the light of Section 16 -A. Applications filed after 25th May 1948, must, by reason of our judgment that Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, however, no disagreement expressed by the Privy Council with what Varda -chariar Off. C. J. and Zafrullah Khan J. Btated on this particular aspect, namely, the real scope and bearing of the provisions of the Ordinance on the jurisdiction and powers of the High Court. ( 37. ) In Basantha Chandra Ghose v. The King.Emperor (1944) 7 P. L.J. 203 : A.I.R. (3l) 1944 P. C. 86, Sir Patrick Spens C. J. who delivered the judgment of the Federal Court first quoted the language of Section 10(l) of the Restriction and Detention Ordinance In [3] of 1944 which was in the following words: No order made under this Ordinance and no order having effect by virtue of Section 6, as if it had been made under this Ordinance, shall be called is question in any Court, and no Court shall have power to make any order under Section 491, Criminal P. C. (V of 1898), in respect of any order made under or having efiqot under this Ordinance or in respect of any person subject to such an order. He then pointed out that 's. 10 does not purport to repeal Section 491, Criminal P. C,' and that Section 491, Criminal P. C,, confers a certain powet or jurisdiction on the High Court and all that 8. 10 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 491 is altogether excluded. The Federal Court was there dealing with an application under Section 491 by a person who was detained under the Bengal State Prisoners Regn. Ill [3] of 1818) which is one of the Regulations referred to in Sub -section (3) of Section 491. In rejecting the application, the Federal Court made certain observations which may, at first sight, seem to go so far as to hold that if the Government claims to have passed an order under the provisions of that Regulation there is no more jurisdiction in the High Court under Section 491, to consider any matter arising out of or in.relation to the detention. If the judgment of the Federal Court is to be so read, it may seem to be in conflict with the view expressed by the Federal Court in Basanta Chandra, Ghose's case , On a close reading, however, of the judgment in Birpal Singh v. The King -Emperor, 1946 P. C. Rule 21 : A.I.R. (38) 1946 P. C. 2: 47 Cr. L. J. 683, popularly known as the Bhajjicase , I think the Federal Court did not go to the extent of denying the jurisdiction of the High Court in these .respects in which it had affirmed such jurisdiction in the ease of Basanta Chandra Ghose, 1945 -8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e already said, I am not inclined to regard these observations as -excluding the preliminary jurisdiction of the High Court to decide, if the contention should be raised, whether the order was not in fact made by the concerned officer or autherity, and did not represent his or its belief, and secondly, whether the order constituted a fraudulent exercise of the -power. These questions are concerned with ascertaining whether the order under challenge is really one made by the concerned individual or body of individuals under the statutory power conferred on him or them. They are in a sense preliminary or collateral questions and seek to decide whether the order could at all be said to be one under the relevant statute. If these question are decided adversely to the detenu we reach the position that the order is one which can be said to have been passed by the Government in the exercise of its statutory power. After that it may not any longer be open to the person concerned to show that the detention is either illegal or improper. After making the observations which I have quoted above, the Federal Court goes on to state that 'something more than allegations that a person is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible evidence to controvert it. There is a presumption attaching to an order regular on the face of it that it has been properly made; but this is a rebuttal presumption. Eelying on Liversidge v. Anderson 1942 A. C. 206 : (1941 -S ALL B. Rule 838) and Greene v. Secretary of State for Home Affairs, 1942 A. C. 284 : 1941 -3 ALL E. Rule 388 the Federal Court held that the Court could enquire whether there was not any consideration by or any satisfaction on the part of any properly autherized person before the orders for detention1 Were made. ( 41. ) The judgment of the Judicial Committee in Sibnath Banerji's case , approves of the judgment of the Federal Court in the above respect. It was maintained for the Crown before the Privy Council 'that the orders being, on their face regular and in conformity with the language of the rule, it was not open to the Court to investigate their validity any further.' Their Lordships quote Section 16 (l), Defence of India. Act, which it would appear, was not brought before the Federal Court, and which provides that no order made in exercise of any power conferred by or under this Act shall be called in, question in any Court, and go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erity it appears expedient for securing the public safety or the defence of the realm. The other two decisions arose out of orders of detention under the Defence (General) Regulations, Eegn. 183, issued under the Emergency Powers (Defence) Act 1939. Section 1, Sub -section (l), para. (1) of the regulation was in the following terms: If the Secretary of Stats has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, be may make an order against that person directing that be be detained. By para (8) 'Any person detained in pursuance of this regulation shall be deemed to be in lawful custody.' ( 44. ) Notwithstanding the differences in the enactments of 1914 and 1939 all the three decisions embody certain common statements of principle. The decisions of the Privy Council and the Federal Court to which I have had occasion to refer are in great part based upon these three decisions and interpret what is therein stated. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case, 1917 A, C. 260 : (86 L. J. K, Rule 1119), Lord Wrenbury states that the statutory autherity must be exercised honestly. It may be difficult for the detenu to establish the absence of bona fides, but it cannot be doubted that it is a ground of challenge which is open to him where he can, for instance, show that the order was not issued in the public interest but was actuate -ed by personal malice or spite or is the result of political animosity. (6) Negatively it can be said that the suffioien -cy of the available material or information to justify the order of detention and the question whether the officer concerned could be said to have reasonable grounds for the issue of the order in question are not matters which are within the cognisance of the Court. The satisfac tion is the satisfaction of the officer. He is the sole judge and once the conclusion is reached that be was satisfied the detenu cannot invite the Court to go behind it and dissect the reasons which weighed with the officer and find out for itself whether the order should have been issued. While the satisfaction of a properly constituted autherity is a condition precedent to the issue of detention, wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed to the Court, I may as well state shortly in my own words the reasons for my concur, race with the judgments now delivered. As a preliminary step, the learned Counsel appearing for the various petitioners have contended that Madras Ordinance II of 1948 promulgated by H. E. the Governor of Madras on 95th May 1948 is ultra vires, because the necessary prerequisites for the validity of such a law not only do not exist, but that the essential conditions precedent to the promulgation of such an ordinance have also not been complied with. Theugh no specific autherity has been cited before the Court, it can be clearly assumed, that after the 15th August 1947, the position of the Governor, vis -a vis the Counoil of Ministers, is that he acts entirely as a constitutional head. That means the Governor suo motu or of his own initiative will not take any effective steps in the administration of the province witheut being previously advised by the Ministry -to that extent I do not feel that there can be any doubt and therefore the argument of the petitioners' counsel is that under the circumstances that existed on 25th May 1943, as a matter of fact between the afternoon of 24th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Sub -section (4) of Section 51, Government of India Act, 1935, for negativing the contention of the petitioners regarding the absences of advice by the Council of Ministers. According to this sub -section, the question whether any, and if so, what advice was tendered by the Ministers to the Governor shall not be inquired into in any Court. Further the learned Advocate.General brought to our notice that theugh the Madras .Legislature was in session till 2ith May 1948, the last day on which the Madras Legislative Assembly met was on 28th April 1948 after which the Assembly was adjourned sine die. The,, last meeting of the Legislative Council prior to the promulgation of the Ordinance was on 3rd May 1948, after which this House was also adjourned sine die. Therefore on the day when the Legislature was prorogued there was no likelihood of any immediate meeting of either house of the Legislature. Before the Legislature could meet, intimation has to be sent to the members thereof to assemble on a specified date and ordinarily some time must elapse between the summoning and the meeting of the Legislature. In addition, the Advocate.Genoral argued that on a proper construction of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 deals with an Act and since an Ordinance has all the essentials of an Act, it is unnecessary to make specific mention of Section 107 at all. In the face of express provisions contained in Sub -section (i) of Section 51, Constitution Act, we will not be justified in embarking upon an enquiry as to whether the Council of Ministers ever met at all or that any advice was tendered to tup Governor even if they met, on what that advice was. If this Court is precluded from investigating whether any advice was tendered, it necessarily follows, that the contentions regarding the ultra vires nature of the Ordinance on the ground that no advice was tendered to the Governor cannot be accepted. It is also in my opinion not within the province of this Court to find out why the Legislature was pronged or whether it could have been possible to have convened a meeting of the Houses of Legislature before the Ordinance was promulgated unless the petitioners can show that the whole action was fraudulent and constituted a fraud upon the power exercised. I need hardly add that no attempt was made to substantiate any of these allegations. ( 49. ) As an alternative, if not the main argument, counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are essential in determining to which list the particular provision should be attributed and these which are merely incidental. They further point out that it is possible that the Provincial Legislature may invade into the realm of the Federal Legislature and the provisions of a particular statute may advance, therefore, into the Federal territory as to show that its true nature is not concerned with provincial matters; but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is a provincial subject or a federal Subject. If that question is determine', then the Act falls on one or other side of the line and can be seen as valid or invalid according to its true content. It was further pointed out that the pith and substance of the Bengal Money, lenders Act wag money -lending and, therefore, it was within the competence of the Provincial Legislature even if some portions of it related to negotiable instruments. Their Lordships held that the particular Act in question was intra vires the Provincial Legislature. the question wag also raised whether such an Act could interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) is in the nature of a proviso to Sub -section (l) and, therefore, one has to consider the matter by a joint application of be to the sub -sections together and mot by applying the provisions of sub -s, (l) alone literally. ( 51. ) It is next contended that Sub -section (2) alone its to be taken into consideration and then also Section 16A is repugnant and, therefore, void. The argument is that the entire Ordinance cannot be said to deal with a matter in the concurrent list but only a portion of it, and, therefore, Section 107 (2) baa no application, This argument overlooks the important circumstance that the word 'Provincial Law' does not necessarily mean the whole of the Provincial Law. The learned Counsel admitted that a portion of the Provincial Law is also a Provincial Law within the meaning of Section 311, Constitution Act. If that is be , then Sub -section (2) is clearly applicable because if Section 16A of the Ordinance relates to a matter in the concurrent list, that is entry No. 2 and even theugh it is repugnant to the existing law still since the previous assent of the Governor -General has been obtained the Provincial Law shall prevail in the Province. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that extent. ( 54. ) The applicants have invoked the jurisdiction of this Court to issue directions in the nature of habeas corpus only under 8. 491, Criminal P. C. It cannot be disputed, therefore, that the power of this Court to issue the writ is to be ascertained from the jurisdiction vested under Section 491, Criminal P. C. What enables the High Court to take action, where a person is illegally or improperly detained within the limits of the appellate jurisdiction of the High Court, is the direct result of the jurisdiction and power conferred by Section 491. Such being the case, in my opinion, such power or jurisdiction is a matter about which the Provincial Legislature has power to legislate. The old Supreme Court;, on which had been conferred the right to issue the prerogative writ of habeas corpus under the common law, was the predecessor of the High Court and the High Court inherited these powers when the Supreme Court was abolished. But this common law right was made a statutory one, by the provisions of the Criminal Procedure Code and the power of the High Court to issue the .writ in a manner other than what is specified in Section 491 was taken away (the Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might fall either in the concurrent legislative list or in the Provincial Legislative List, Section 100 makes the former the dominant list; but this principle cannot apply where the result would be to rob the Provincial entry of all its context. The learned Judges further observe following a decision in In re Marriage Legislation in Canada, 1912 a. o. 880 : (81 L, J. Rule 0 237) that 'Civil Procedure' in the concurrent legislative list must be held to exolude matters relating to the jurisdiction and powers of Courts since special provision is made for these matters elsewhere in the list. The provisions in the Civil Procedure Coda whether they are Civil Procedure in tee limited sense or not are of course specifically included in the 4th entry in the concurrent legislative list. The same remarks, in my opinion, apply with equal, if not greater force, to Entry no. 2 in the concurrent list as well as in the Provincial List respectively. Now applying that decision to the facts of the present cases, I would hold that Criminal Procedure in the concurrent list must be held to exclude matters relating to jurisdiction and powers of all Courts including the High Court since special p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex Concession the issuing of a writ of habeas corpus is included in either Clause s of List. No. 2 or in Clause 2 of List no. 3 and it cannot be said that Clause 44 is a bar to the promulgation of the Ordinance. ( 56. ) Before leaving this topic, it is necessary to advert to another really desperate argument advanced on behalf of the petitioners, and that is, that in the alternative the power to issue directions in the nature of a writ of habeas corpus is a matter not enumerated in any of the lists in Sch. 7 to the Constitution Act, but is a residuary power and therefore according to Section 101 of the Act such residual powers of legislation are vested in the Governor General who may empower either the Dominion Legislature or the Provincial Legislature to enact a law with respect to it. As admittedly there has been no such empowering of either Legislatures be far as the issuing of the writ is concerned, according to the petitioners, the Ordinance to that extent is void, This argument cannot be accepted because,in my opinion, this matter is governed either by entry No 2 in List II or entry No. 2 in Liat III. Moreover, as observed by the Federal Court in Manikka Sundar Bkattar V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. a retrospective effect. If the right to file an appeal cannot be impliedly taken away by construing the law as having a retrospective effect, a fortiori it follows that that right to get one's illegal detention set aside cannot also be taken away, To this aspect of the case the contention on behalf of the Crown is that that Section 16 a expressly applies to all pending cases or at least by necessary intendment applies to such oases. The learned Advocate General points out that the words 'shall apply to any person detained or deemed to have been detained under Section 2 of this Act' make it clear that all persons whose liberty has been curtailed by applying the provisions of Section 2 of the Act or who are deemed to have been detained under the provisions of Section 19 of Madras Act I [l] of 1947 are affected by 8. 16 A, I am unable to read 8. 16 -A as expressly giving it a retrospective operation. The Ordinance making autherity could have used appropriate words if the intention was to make the section retrospective. We are familiar with legislative enactments where suitable and proper words had been explicitly and clearly used in order to bring out the intention to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that where the statute gave its provisions retrospective operation in express terms it would be a matter for consideration how far the retrospective operation extended and whether pending actions were intended to be affected by it and therefore the question finally resolveB itself into a matter of construction, theugh express words are not essential. I do not gee how this decision help3 the contention of the learned Advocate -General. The other decisions relied on by him vis. Mukherjee v Mt. Bam Ratan Kuer and The United Provinces v. Mt Atiqa Begum, (1940 P. c. It 110 at p. H2 : A.I.R. (28) 19 -11 F. c. 10 do not carry this contention any further. In the former case, their Lordships found that a. 2G(N), Bihar Tenancy Act, was retrospective because the words used were sufficiently plain. In the latter case the Federal Court had to consider the 'requirements of Remission Acts of 1938 (United Provinces)' and Sulaiman J in discussing the retrospective nature of that piece or legislation observed that when a statute deprives a person of his right to sue or affects the power and jurisdiction of a Court in enforcing the law as it stands, its retrospective character mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir applications reached the High Court only after 25th May 1948, they had been despatched from their places of detention by the respective petitioners gome days before the promulgation of the Ordinance andthat the delay caused in transit or occasioned by the action of the executive autherities should not prejudice them. There is no allegation that their applications were fraudulently or wantonly withheld until the Ordinance was passed. Theugh it was very feebly suggested that the executive autherities withheld the transmission of these applications to the Advocates till the Ordinance was promulgated, no attempt whatever has been made to substantiate such a suggestion, I am definitely of opinion that in the absence of any tangible material) it is not open to this Court to entertain or accept a suggestion of the kind. Even if it be be , I fail to see what this Court can do in a matter like this. ( 59. ) The petitioners in these 17 applications further contend that there is a right vested in them under 8.491, Criminal P. C., to invoke the jurisdiction of, this Court, the moment they were illegally detained under the Madras Public Safety Act and therefore if Section 10 -a of the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the suit of the plaintiff, a judgment, creditor of the defendant; but no delivery of the goods had been made to the plaintiff at the time the Bankruptcy Act. became law. It was held by the Court of Appeal that the Bankruptoy Act. of 1883 had not deprived the plaintiff of his right to the delivery of such goods, even theugh the writ of elegit had ceased to exist as a result of the Act. On the analogy of the principle stated here, learned Counsel wants the Court to say that the right which the petitioner had, to apply for a writ of Habeas Corpus before th promulgation of the Ordinance cannot be taken away by Section 16 -A. I am unable to apply the analogy to this case for unlike the ease in the Court of Appeal there was no action taken by the petitioners in the 17 petitions here. be ugh V. Windus, (1884) 12 Q. B. D. 224 : (63 L, J. Q. B. 166) would certainly be an autherity in favour of the. contention that Section 16 - A cannot be applied retrospectively in order to take away the right of the petitioners in applications pending at the time of the promulgation. Mr. B. V. Subra -maniam on the other band wants to evolve a theory by the acceptance of a converse proposition of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to the present petitions. The whole question is whether the petitioners have a vested right to avail themselves of S, I9l even if they do not move their little finger or take any steps in that direction. Certain observations in the judgment of Fazl Ali J. in Banwari Gope v. King -Emperor, 22 rat. 175: U. i. r. (30) 1943 pat. 18: u or. L. J 273 (P.B.)) tend to show that in the the case of criminal proceedings instituted against a person, he is deemed to have a right of appeal vested in him in accordance with the law existing on the date when the criminal proceedings were instituted. By implication it can be inferred from this decision, that in order that a right might be vested in an individual there must be borne overt action taken by him or some proceeding instituted against him. As the learned Judge observes, as soon as a Magistrate takes cognisance of an offence there is a criminal case against the aooused person' and at that point of time he acquires such a right of appeal or revision as the case may be as the law confers upon him. The right of appeal being a right in -cidental to and continuing from an accusation alleged against a person is not exactly the same as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these decisions refer to the well known decisions of the Hou3e of Lords in Liversidge v. Sir John Anderson 1942 A. o. 206 : 1941 -3 all E. b. 338 and Green v. Secretary of State for Home Affairs 1942 A. a. 284 : 1941. 3 all E. B 388. In the earlier of them, the House of Lords had to consider whether the ap -licant who was detained by the Home Seoretary under Begn. 18B of the Defence (General) Be -gulations of 1939 was entitled to get the parti -culars of the reasons of his detention from the Home Secretary and in tne second case it was an application for a writ of habeas corpus by a person detained under the same Begulation, The House of Lords by a majority held in the first case, (Lord Atkin dissenting) that the Court cannot compel the Seoretary of State to give particulars of grounds on which he had reason to belive the detenu to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over the detenu. The production by the Secretary of State of an order of detention made by him and ex facie regular and duly authenticated constitutes a defence to such an action unless the plaintiff discharges the burden of establishin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same state of mind and are not intended to express anything different from each other and such being the case the decisions on the interpretation of B. 18.B of Defence (General) Regulations as well as on R, 26, Defence of India Rules are very helpful in deciding this question. There is the further circumstance that 8.16 (1) of Madras Act I [1] of 1947 is worded practically in the same terms as Section 16 (l), Defence of India Act with a very minor addition (viz) 'deemed to have made....' The construction of Section 16(1), Defence of India Act, and B. 26, Defence of India Rules came up for decision finally before the Privy Council in Emperor v. Sibnath Banerji and the Judi -cial Committee ha3 laid down what the powers and functions of the High Court are when approached by a person detained under B, 26, Defence of India Rules. Briefly stated, the principles of law enunciated are that it cannot be said that in view of Section 16 (l), Defence of India Act and Section 59(2), Government of India Act, 1935, that the High Court has no jurisdiction to investigate the validity of orders of detention made under Rule 2G, Defence of India Rules. Sub.section (1) of Section 16 assume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words the order must be in proper exercise of the powers conferred by the statute and not in a colourable exercise, nor should the order bothe result of bad faith on the part of the autherity, It should also not be an abuse of the powers conferred under the Act, or for the pur -pose of effecting a fraud on the Act. Consistently with these principles good faith on the part of the order -making autherity is presumed until the contrary is proved and a mere challenge by the detenu is not sufficient to shift the onu3 on the autherity. ( 64. ) In my judgment, the above principles are well established from the decisions cited, and they are fully applicable to Madras Act, I [l] of 1947 and ordinance, II of 19i8. Moreover, in Basani GhaiicLra Glwse v. King -Emperor, (1944) 6 F, C. H. 295) A. I. R. (31) 1944 F. 0. 8G the Federal Court also considered the effect of Section 10(l) of ordinance III of 1941 which corresponded to 8. 16 -A of the present Ordinance. Spans 0. J, in delivering the judgment has emphasised the aspect that Section 10(l) of ordinance III of 1941 did not protect a document which was not really an order under n. 26, that Clause (l) .of Section 10 had not introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the society as it is constituted to -day, we cannot expect the same standard in every individual, so that if the executive autherity states bona fide that it is satisfied, this Court cannot say that it is not a proper or valid satisfaction, It is interesting to note that under the Defence Regulations in England, there was no provision either like Section 16, Defence of India Act, or like Section 16 or 16 -A of the Madras Act and Ordinance. Even, then, the House of Lords held that it was not open to the Court to go behind the satisfaction of the Homo Secretary. In my opinion, these are principles de -decible from a discussion of cases of the highest autherity so far as this Court is concerned. These principles ought to be applied in considering questions of detention hero, But it was suggested that another decision to which the attention of the Court was invited, reported in Ex -Rana Birpal Singh of Bhajji State v. The King. Emperor (1916) 9 P. L. J. l : A.I.R. (34) 1946 p. 0 -2; 47 Cr. L. J. 683) strikes a some what different note. On a careful reading of that decision, and the comparison of it with the earlier oases of the Federal Court and the Privy Council, I did not feel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
