TMI Blog1951 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... against this order to the Ses. J. The learned Sess. J. contented himself with pouring encomia on the trial Ct. for its elaborate order refused to do anything in the matter. So they have come up to this Ct. in revision. 2. The control order that is said to have been infringed by the applicants was made in exercise of the powers conferred by the Defence of India Rules framed by the Central Govt. in exercise of the powers conferred upon them by the Defence of India Act. The Defence of India Act itself is deemed to have been passed by the Central Legislature in exercise of the powers conferred by Section 102, Govt. of India Act, 1935. Section 102 has been amended by the British Parliament twice. The provision in the original Act was to the effect that if the Governor-General declared by Proclamation that a grave emergency existed threatening the security of India, the Central Legislature had the power to make laws for a Province or any part thereof with respect to, any of the matters of List II (the Provincial Legislative List), that a law made by the Central Legislature in exercise of its power would cease to have effect on the expiration of a period of six months after the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make orders providing for various matters laid down punishment for contravening all such orders. The Control Order in question was made by the Central Govt. in exercise of this power. Trade commerce within the Province; production, supply distribution of goods; development of industries were matters included in List II, Items 27 29. If the Defence of India Act contained law in respect of these matters, that law, having been enacted by the Central Legislature in exercise of its power under Section 102, was to cease to operate on the expiration of six months after the Proclamation was revoked, except as respects things done or omitted to be done. The war terminated on 1-4-1946 and on the same day the Governor-General revoked the Proclamation of Emergency. Consequently, the who Defence of India Act should have ceased to be in force on 1-10-46 by virtue of its Section 1(4). The incompetent part of it should have ceased to be in force even under Section 102(4), Govt. of India Act. Section 102(4) would not have affected the competent part, but it was affected by Section 1(4) of the Act itself. 5. Section 317, Govt. of India Act, provided for the continuance in operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetent part which was not governed by that provision at all. If there were no saving clause in the Defence of India Act, the effect of the competent part would not have been saved after the expiry of the Act. That seems to be the reason why the Governor-General issued the Ordinance in spite of the saving clause in Section 102(4). The Ordinance having been made between 27-6-40 1-4-1946 there being nothing in it about its duration, it was to remain in force until repealed. 6. The Dominion Legislature, that took the place of Central Legislature, passed the Repealing Amending Act 1947 (Act No. II of 1948), repealing the Defence of India Act the Ordinance No. XII of 1946 among other Acts Ordinances. It contains the saving clause in Section 3 to the effect that the repeal of any enactment by it was not to affect any other enactment in which such enactment has been applied, incorporated or referred to that the Act was not to affect the effect of consequences of anything already done or suffered or any obligation or liability acquired or incurred, or any remedy or proceeding in respect thereof, or the proof of any past act or thing, or revive or restore any right, restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in pith substance an enactment not in respect of those matters but in respect of special measures to ensure the public interest defence of British India . The conferment of powers to make rules was in itself an enactment providing for special measures . But is has been held by the P. C. that the provisions in Section 2 dealt with matters of list II also. I, therefore, proceed on the basis that the Control Order was made by the Central Govt. by virtue of the power conferred by a provision relating to matter of list II, that is, by an incompetent part of the Act, I mean the part that was beyond the ordinary competency of the Central Legislature. The Act expired on 30-9-1946, together with all rules orders made thereunder. There is no dispute about this if necessary the judgment of the Chief Justice of India in the case of 'J.K. Gas Plant Manufacturing Co. A I R 1947 P C 38 may be referred to. 9. When an Act expires or is repealed, It becomes dead for all purposes. It cannot be enforced to determine any right or liability after the date of expiry or repeal; referring to its provisions would be to annul the expiry or repeal. If a right or liability were to be determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion on the unreasonableness. The case was governed by the interpretation of Section 11(3) of the Act itself; if it permitted the prosecution even after the expiry, the prosecution was valid whether reasonable or not if it did not, it was invalid, again whether reasonable or not. Section 11(3) of the Act laid down that its expiry shall not affect the operation thereof as respects things previously done or omitted to be done. The Lord Chancellor observed at p. 206: When a statute like the Emergency Powers (Defence) Act, 1939, enables an authority to make regulations, a regulation which is validly made under the Act, i.e., which is 'intra vires' of the regulation making authority, should be regarded as though it were itself an enactment. His Lordship dismissed the contention that the acts done by Wicks in 1943 did not amount to things previously done observed at p. 207: It is clear that Parliament did not intend Sub-section (3) to expire with rest of the Act, that its presence in the statute preserves the right to prosecute after the date of expiry . So the conviction of Wicks was maintained. The interpretation placed by the House of Lords on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity or penalty already incurred. When the provision about the expiry was itself to be read subject to the saving clause it cannot be argued that the saving clause was without any effect after the expiry. When the Defence of India Act expired, it does not mean that the Act should not be opened or read at all; it only means that its provisions, except the saving clause, should not be given effect to. If the saving Clause permits the Ct. to give-effect to the provisions in certain circumstances^ then the effect must be given in those circumstances. 12. The power of the Governor-General to make an Ordinance was subject to the like restrictions as the power of the Indian or Central. Legislature to make laws. Just as the Central Legislature was empowered by Section 102, Govt. of India Act, to make laws in respect of matters not covered, by any list or matters covered by List II, so also the Governor-General had the power to make an Ordinance in respect of matters included in List II during the continuance of a proclamation of emergency. The Governor-General had the power to make an Ordinance in cases of emergency , while the power of the Central Legislature to legislate in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the Act expired, it expired along with the amended provision. I have already explained why when an Act with a saving clause expires, the saving clause remains operative the remaining provisions only become lifeless. So even if the effect of the Ordinance was to amend Section 1 of the Act by inserting a saving clause, the saving clause remained operative after 30-9-1946, to save the effect of anything done or omitted to be done. 14. Mr. Pathak also contended that a saving clause in an emergency legislation must have constitutional authority that if an Act cannot be passed today its effect also cannot be continued today. No authority was cited in support of the contention. A saving clause does not stand on the same footing as the Act itself; though an Act has expired, the effect of things done or omitted to be done can be saved. An Act may be dead as regards future acts but can be kept alive as regards past acts; to argue against is nothing but arguing against saving clauses the provisions of Section 6, General Clauses Act. I see no reason or logic behind the proposition that the incorporation of a saving clause in an emergency legislation is inconsistent with the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d definite dates on which an emergency arose passed off. The earlier Act of 1915, however did not require any promulgation of emergency to be issued revoked, with the consequence that there could be no definite dates on which an emergency could be said to have arisen to have passed off. That probably is the reason why Para 72 did not make operation of an Ordinance dependent on the duration of the emergency. I could not find any provision anywhere to justify the remark of Happell J. that an Ordinance, prescribing no period for its duration, made after the amendment of Para 72 was to remain in force only during the emergency (by which I understand the emergency contemplated by Para 72). I respectfully differ from his view that the Ordinance was not intended to have an independent existence. I see nothing unconstitutional or incongruous or illegal in the Ordinance remaining in force until its repeal on 5-1-1948 by Act No. II of 1948. I am supported in my view by the following observations of their Lordships of the Judicial Committee in the case of 'J. K. Gas Plant Manufacturing Co A I R 1947 F C 38: In our opinion the emergency on the happening of which an Ordinance can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period during which offences against the Defence of India Act could be prosecuted punished. It certainly does not further elongate the period. I, therefore, hold that when no prosecution was launched prior to 5-1-1948 nothing in Section 3 of Act II (2) of 1948 allowed it to be launched after that date. 18. The position is that if the applicants could be prosecuted after 30-9-1946, it was only by virtue of Section 102(4), G. I. Act. The Act was repealed by the Constitution. The President was empowered by Article 372 to make such adaptations modifications of the law in force in India immediately before 26-1-1950 as may be necessary or expedient. Accordingly he adapted the General Clauses Act without any change in Section 6. Article 367 has made the General Clauses Act applicable for the interpretation of this Constitution . Mr. Pathak drew distinction between interpretation construction urged that Section 6, General Clauses Act, deals with construction not interpretation cannot be applied to the repeal of the Govt. of India Act, by Article 395. Crawford writes in his Statutory Construction, P. 240: Strictly speaking construction interpretation are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the General Clauses Act is to be used for all purposes for which it is used in respect of Acts. Having regard to what is said by Crawford, if the Constituent Assembly had intended to apply-only Sections 3 4 (which contain all the definitions) it would have said so clearly instead of saying that the whole Act applies for the interpretation. 'In Be Keshavan Madhavan Mennon' 52 Cr L J 30 a Full Bench of the Bombay H C applied Section 6, General Clauses Act, to the interpretation of the Constitution. The decision of the Full Bench has recently been confirmed by the 'S. C.' Keshavan Madhava Menon v. The State of Bombay 1951 S C J 182 the S. C. confirmed it on different grounds, but without overruling the dictum that Section 6, General Clauses Act would have-applied if the impugned Act had been deemed to have been repealed by the Constitution. 19. Section 6, General Clauses Act applies where any Central Act or regulation repeals any enactment . The Constitution is not a Central Act or regulation. It is certainly not a regulation it is not a Central Act as defined in Section 3(8)(aa), General Clauses Act. The President while adopting the General Clauses Act d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases of 'ThiagarayanA I R1947 Mad 325 'J.K. Gas Plant Manufacturing Co. A I R 1947 F C 38 'Wicks v. Director of Public Prosecutions 1947 All E R 205 'Dhawanji Rawji v. Emperor'. Reference in this connection may also be made to 'Dawoo Doyal v. Giridhari Laha, AIR1950Cal214 where effect was given to an order made under a Rent Control order which ceased to be operative on the expiry of the Defence of India Act. In 'Amrit Lal v. Govt. of Mysore A I R 1951 Karn 26 an offence against a Mysore Food Order, 1949, read with Rule 81, Defence of India Rules, was committed on 22-11-1949, the accused was convicted, on the coming into the Constitution he applied for the quashing of his conviction on the ground that the law for infringing which he was convicted was inconsistent with the Constitution his application was rejected. 22. Mr. Pathak also raised the question of the validity of Section 2, Defence of India Act. He argued that it was invalid as being delegated legislation. But in view of what a Bench of this Ct., of which I was a member said in 'State v. Basdeo' AIR1951All44 , he did not press his argument but did not also give it up. 23. I allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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