TMI Blog1949 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... e without authority and were illegal. 2. The maintenance of Public Order Act, 1947 (Madras Act I [1] of 1947), hereinafter called the Act in the course of this judgment, received the assent of the Governor-General on 11th March 1947 and was first published in the Fort St. George Gazette on 12th March 1947. Under Section 1, Sub-clause (3) of the Act it came into force at once. Under Sub-clause (4) it remains in force for a period of one year; but under that Sub-clause the Provincial Government is empowered from time to time by notification in the Fort St. George Gazette to extend the continuance of this Act for a further period or periods not exceeding one year in the aggregate if in their opinion it is expedient so to do. On the expiry of the Act the provisions of Section 8, Madras General Clauses Act are made applicable, as if the Act had then been repealed. Before the expiry of the period of one year from the commencement of the Act the Provincial Government by a notification in the Fort St. George Gazette extended the duration of the Act for a further period of one year commencing from 12th March 1948 (Vide, G. O, No. 446, General dated 27th February 1948, published in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure in the Province was not in session, and as the Governor of Madras was satisfied that immediate action was necessary for the purpose of removing doubts regarding the validity of the continuance of the Madras Maintenance of Public Order Act, 1947, and for amending it. The Ordinance was promulgated after the instructions of the Governor-General were obtained in pursuance of the proviso to Section 88(1), Government of India Act, 1935. It was issued by the Governor in exercise of the powers conferred upon him by Section 88(1), Constitution Act. The Ordinance consists of four sections. Section 1 contains the short title, and Section 2 declares that the Madras Maintenance of Public Order Act, 1947, remained in force on and from 12th March 1948 and shall continue to remain in force so long as the Ordinance remains in operation. It also amends Section 1 of the Act by omitting Sub-section (4). Section 3 validates the Madras Maintenance of Public Order (Amendment) Ordinance, 1948, and the Madras Maintenance of Public Order (Amendment) Act, 1948, Act XVII [17] of 1948, and provides that they shall not be questioned on the ground that the Acts amended thereby were not in force at the time w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution Act. It is also invalid as no circumstances existed which justified immediate action and the issue of an Ordinance. As the Act itself ceased to be in force on 12th March 1948 the amendments sought to be effected by the Ordinance are of no legal effect, as there can be no amendment of an Act which did not exist. Nor is it possible to remove doubts in an Act which ceased to be in force. For this contention also reliance was placed on the decision of the Federal Court on behalf of the petitioners. 3. The learned Advocate. General who appeared for the Government argued that the decision of the Federal Court was distinguishable as the provisions of the two Acts were entirely different, that a bare power to extend the duration of life of an Act was not a legislative power and could validly be delegated, and that this question was not considered fully by the Federal Court, and even if there were observations in the judgment of the Federal Court, these observations were obiter. According to the learned Advocate-General, in any event the power under Sub-section (4) of Section 1 of the Act of extending the life of the Act is in the nature of conditional legislation which could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf relating to the effective date, the statute will take effect from the day of its passage or enactment; that is, from the date the last act necessary to complete the legislative process is performed. In Tomlinson v. Bullock, (1879) 4 Q. B. D. 230 : 48 L. J. M. C. 95 it was held that where no time is specified in the Act from which it is to come into operation the date on which the Act receives the royal assent is the date on which it comes into operation and takes effect from the very commencement of the day on which the royal assent is given. Of course the law does not recognise fractions of a day, and when once an assent is received, it comes into effect from the very commencement of the day. See Chenchiah v. Commissioner of Police, Madras (1947) 1 MLJ 190. 5. The short answer to this argument is that the Act is governed by the Madras General Clauses Act, 1891 (Act I [1] of 1891) which lays down in Section 5 the principles for determining the commencement of an Act. According to this section, if no time is mentioned or no provision is made for the commencement of an Act, the Act comes into force upon the first publication made by the Governor in Fort St. George Gazette o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is the leading case on the subject, Lord Selbourne L. C. described the position at p. 180 as follows: . . . their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and, by which, negatively, they are restricted. If what has been done is legislation within the general scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Parliament has unrestricted power of delegation. It may enact conditional legislation or may entrust to subordinate bodies the power to make by-laws or regulations in pursuance of an Act of Parliament which lays down the limits of such subordinate legislation. It can itself create legislatures and endow them with capacity or the power to legislate, define the area and also prescribe the limits of that area. The position, however, of the Indian Legislatures and of Colonial Legislatures is entirely different. In the United States of America the power of delegation is further complicated by two principles, one the tripartite division of the powers of the Government into executive, legislative and judicial, and the implied restriction of the power of one department of the Government to delegate its functions to the other. It is a principle inherent in the American Constitutional system that unless expressly provided the Legislature cannot exercise either executive or judicial powers and an executive in its turn cannot exercise either legislative or judicial powers, and the judiciary is equally prohibited from exercising either executive or legislative powers. This strict division o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as now been authoritatively settled by the Privy Council in the decisions already referred to that such Legislatures are not delegates of the Parliament and have plenary powers of legislation within the appointed limits. 9. The power of delegation, however, is recognized, but the question is, what are the limits of such delegation? As the Legislative power of; a Government is vested in the Legislature under the Constitution Act it is not open to the Legislature to surrender or abdicate that power or delegate it to another authority whether it is the executive Government or some other body. But a Legislature is authorised to delegate a power which is non legislative in character. Sometimes the delegated power may be in the nature of conditional legislation authorising an authority such as the executive to determine the time of the commencement of an act and the area of its application after determining, if necessary, certain facts. It may also entrust the power of extending the Act to other matters not enumerated in the Act itself. In other cases, the Legislature entrusts to the subordinate bodies the power of making by-laws and regulations so as to carry out into execution the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to vest the civil and criminal administration of justice in the said territory in officers to be appointed by the Lieutenant Governor of Bengal. The Lieutenant Governor of Bengal was authorised by notification in the Calcutta. Gazette to determine the time when the Act should come into operation in respect of the Garo Hills. The 9th section of the Act empowered the Lieutenant Governor from time to time by notification in the Calcutta Gazette to extend the provisions of the Act to the Jaintia Hills, the Naga Hills and portions of the Khasia Hills. This delegation of the power to the Lieutenant Governor to determine the time of the commencement of the Act and also to extend its operation to other areas was questioned in the case. The High Court was of opinion that the delegation was bad, as it was delegation of a legislative power which offended also against the principle that an agent could not delegate his powers. It was pointed out by the Privy Council that it was not open to the Governor-General-in-Council to create a new Legislature and arm it with legislative authority not authorised by the Councils Act. Lord Selbourne L. C. overruled the objection and upset the view of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible. 10. There are other instances of conditional legislation which have been upheld by the Privy Council and which have been brought to our notice by the learned Advocate-General. In Russel v. The Queen, (1882) 7 A. C. 829 : 51 L. J. P. C. 77 the validity. of the Canada Temperance Act, 1878 was questioned. The Parliament of Canada passed the Canada Temperance Act, 1878 with the object of promoting temperance in the Dominion and introducing uniform legislation in all the provinces respecting the traffic in intoxicating liquors. The Act was divided into three parts, and the second part contained the prohibitory enactments. A machinery was provided under the Act by which the second part of the Act could be brought into force in any country or city by the Governor-General-in-Council by a proclamation published in the Gazette declaring that the second part of the Act shall be in force and take effect in such country or city. This method of bringing into force the Act was questioned on the ground that it was delegation of a legislative power and therefore, invalid. The answer to this objection given by the Privy Council is at p. 836 : The short answer to this objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Crown empowered by the Provincial Government to decide and direct what offences should be tried by a Special Magistrate under Section 26. Ordinance appeals from orders from sentences of Courts constituted under the Ordinance were taken away from the jurisdiction of the ordinary Courts constituted under the Criminal Procedure Code, and the jurisdiction even of the High Court was bar-red to entertain either an appeal or revision. Apart from other questions which were raised regarding the validity of this Ordinance the one question which is relevant for the purpose of this discussion is whether the delegation of the power to determine the nature of the offences or classes of offences and cases or classes of cases by the Special Judge or Special Magistrate, to the Provincial Government or the servant of the Crown was valid. The High Court as well as the Federal Court took the view that as the delegation was too general, it was invalid. The Officiating Chief Justice, Varadachariar, in an exhaustive judgment examined the limits of the doctrine of delegation of powers by a Legislature and considered the relevant decisions on the point. The argument on behalf of the Crown was that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cast on him, and cannot transfer it to other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already pointed out, in view of the proclamation under Section 102, had power to make laws for a Province even in respect of matters which would otherwise be reserved to the Provincial Legislature. Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor-General's Ordinance taking the form that the actual setting up of a special Court under the terms of the ordinance should take place at the time and within the limits judged to be necessary by the Provincial Government specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provisions of a Statute is determined by the judgment of a local administrative body as to its necessity. Their Lordships are in entire agreement with the views of the Chief Justice of Bengal and of Khundkar J. on this part of the case. The latter Judge ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, therefore, legislation from the very earliest times, and particularly in more modern times, has taken the form of the conditional legislation, leaving it to some specified authority, to deter, mine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied. In the case of Field v. Clark, 143 under Section 649, which was cited to us by Mr. Lamb in the course of his argument, there is a passage which has a direct bearing upon this aspect of the power of the legislature. In delivering the judgment of the Court, Harlan J. said, quoting from another case, Moure v. City of Reading, 21 Pa. S. R. 188: 'Half the Statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no analogy between conditional legislation which authorises an outside authority to determine the commencement or termination of an Act and the power to determine the life of an Act itself. No doubt in the case of conditional legislation, until the condition is determined-or is fulfilled, the law may be in a state of suspended animation but still it is law but needs its application to be determined by an extraneous authority. The power of extending the life of an Act is really a power to bring the Act itself into existence for a farther period and if not so brought would cease to be law. It is therefore difficult to accept the contention of the learned Advocate-General that a bare power to extend an Act is, in the nature of conditional legislation and is valid. Of course the word extend is capable of more than one meaning. If it is merely a question of extending the operation of the Act already complete and alive, to other persons or goods or even to other areas not already specified in the Act itself the argument of the learned Advocate-General on the authorities is perfectly sound. But if by extend is meant to extend the life of the Act itself and to prolong its durati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he section an Act of the Dominion Legislature or of the Provincial Legislature will not apply to an excluded area or a partially excluded area, unless the Governor by public notification extends the application of the Act with such exceptions or modifications as he may think fit to make. This power of extending Acts already passed by the Dominion Legislature or the Provincial Legislature is admittedly a legislative power. It was so decided also in Chatturam v. Commissioner of Income Tax, Bihar, 1947 F. C. R. 116: A. I. R. 1947 F. C. 32. Under Sub-clause (2) the Governor himself is empowered to make regulations for the peace and good Government of any excluded area or of partially excluded area in a Province, and by such regulations he is authorised even to repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature of any existing law applicable for the time being to the area in question but subject to the condition that such regulations are forthwith submitted to the Governor General and assented to by him before they become operative. This is undoubtedly a plenary power of legislation vested in the Governor of the Provinces. The Bihar Legislature passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Section 1 (3) of the Act was unauthorised. There was an alternative contention that in any event as there was no notification applying the-extended Act to the Chhota Nagpur division, the detentions were illegal even on that ground. Fazl Ali J. dissented from the opinion of the majority and upheld the orders of detention. Patanjali Sastri J., based his decision on the narrower ground that in the absence of a further notification by the Governor there was no Act in force justifying the orders of detention. The Governor in the exercise of his legislative power under Section 92 (1) according to the learned Judge had no power to delegate legislative power of extending the duration of the Act to the Provincial Government. The amending Act, V [5] of 1949 was of no avail to sustain the detentions, as the original Act ceased to have any operation in Chhota Nagpur at the time it was applied by notification of the Governor to that Division. The other learned Judges, the Chief Justice of India, Mahajan and Mukherjea JJ., considered the larger question and were unanimous in holding that the orders of detention were not justified. 14. It will be observed that under the proviso the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al legislation by the Provincial Government. Section 1 (3) and the proviso read together cannot be properly interpreted to mean that the legislature of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority, which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it shall be extended for a period of one year by the Provincial Government on a resolution passed by the two Chambers. I also think that on a true construction of the proviso this power of legislation to extend the life of the Act beyond the first year is not left in the legislative body established by the Government of India Act for the Province, but in a different body. For the extension of the Act beyond the first year, the consent of the Governor of the Province is not required under the proviso. While Section 69, Constitution Act, makes the Governor an essential part of the Government of the Province in performing its legislative functions, the procedure laid down for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and detention of the appellant must be held to be unauthorised and illegal. Of course this passage is not direct authority on the point now under consideration; but however it throws light on the question in so far as the learned Judge holds that the delegation even by the Governor of such a power, who had the right to exercise legislative power under Section 92(1) of the Act is unconstitutional. 16. Mahajan J. at p. 239 pointed out the distinction between delegation of power to make the law and conditional legislation in the following passage: Distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. In cases of conditional legislation, on fulfilment of the condition the legislation becomes absolute. But in cases of delegated legislation, the delegate has to take a decision whether that legislation is to continue or has to be modified, amended or varied. The proviso which has been assailed in this case, judged on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contingent legislation. It cannot also be supported on the ground that what it delegates is a mere non-legislative function. The duration of a statute is a matter for determination by the Legislature itself. From the language of Sub-section (3) of Section 1 and that of the proviso, it is difficult to say that the Legislature fixed the duration of the Act at two years from the date of the commencement and left it to the Provincial Government to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year more. If that was the real intention of the Legislature, it might have been argued that it was a piece, of conditional legislation only. That this was not the intention of the Legislature is, however, clear from the fact that the Provincial Government is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not. In view of these clear expressions of opinion by the highest judicial tribunal of the land it is impossible to hold that the question raised in these applications regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 1948. 18. Relying upon the hypothetical case suggested by Mukherjee J. in the passage already cited from the judgment of the Federal Court, the learned Advocate-General contended that upon a true interpretation of Section 1 (4) of the Act, the Legislature fixed the duration of the Act at two years from its commencement, and gave discretion to the Provincial Government to determine at the end of one year whether the Act should continue in operation for one more year or not. If that was the intention of the Legislature, it is argued that it is a piece of conditional legislation as stated by Mukherjee J. at p. 261. The language in our opinion of Section 1 (4) of the Act does not admit of any doubt that it was not originally intended to be in force for a period of two years. The Sub-section expressly says that the Act shall remain in force for a period of one year and that the Provincial Government may extend the Act from time to time by notification for a further period or periods not exceeding one year. The discretion given to the Provincial Government is clearly to extend the operation of the Act by another year, after the first year had elapsed, and the intention is not to fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 assent of the Governor-General. (2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, but every such Ordinance-- (a) shall be laid before the Provincial Legislature and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or, if a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council. The rest of the section is not relevant. The assent of the Governor-General has been obtained in pursuance of the proviso to Section 88 (1), Government of India Act, as the preamble of the Ordinance shows. There is a declaration by the Governor in the preamble that the Legislature of the Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 88 rather than approach the Legislature for the necessary legislation. The section itself requires that the Governor should be satisfied that circumstances exist which render it necessary for him to take immediate action. Of this necessity, the Governor is the sole judge. The satisfaction is that of the Governor. It is not open to a Court to canvass and find out whether in fact there could or could not have been the satisfaction. The power of the Governor under this section is analogous to the power of the Governor-General to promulgate Ordinances in case of emergency. It has been repeatedly held both by the Privy Council and High Courts that the Governor-General is the sole Judge for deciding the existence of emergency which justified the issue of an Ordinance. See Benoari Lal Sarma's case and Jnan Prosanna v. Province of West Bengal. It cannot but be admitted that the situation created at or about the time the Ordinance was promulgated was that in view of the two decisions, one of the Federal Court, and the other of the Calcutta High Court, the Government must have felt that the validity of the continuance of the Ordinance by notifications was seriously in dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en pass retrospective legislation. To what extent under the Ordinance-making power the Governor can pass retroactive legislation is a point on which there is some doubt or difficulty. The Ordinance purports to declare and amend. The declaration is of course with a view to remove doubts. By Section 2 it is declared that the Madras Maintenance of Public Order Act, 1947, hereinafter referred to as the said Act remained in force on and from the 12th day of March 1948 and shall continue to remain in force so long as this ordinance remains in operation and with a view to achieve this object the last part of the section purports to omit Section 1, Sub-section (4). If it merely declared that the Act continued in force the result would have been, the Act, as originally stood, which is to remain in force for a period of one year from its commencement, would have continued in force for a period of one year from 12th March 1947. The mere declaration therefore would not have been sufficient to achieve the object of converting a temporary Act into an Act of unlimited duration. It was therefore necessary to amend the Act by omitting Sub-section (4) of Section 1 altogether. 24. A declaratory Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expired Act was by enacting a fresh statute or by enacting a statute expressly saying that that Act is herewith revived. The same opinion was expressed by Mukherjee J. at p. 256 where he states that, it is certainly competent to the Legislature in exercise of its plenary powers to revive or re-enact a legislation which has already expired by lapse of time. The Legislature is also competent to legislate with retrospective effect; but neither of these things seems to have been done in the present case. The Legislature proceeds on the footing that the old Act was alive at the date Then the new Act was passed, and the new Act merely purports to amend one of the provisions of the old Act. Chare could be no amendment of an enactment which a not in existence and from the fact that the Legislature purports to amend an Act, it could not held as a matter of construction that the intention of the Legislature was to renew a dead Act or make a new enactment on the same terms as the old with retrospective effect. In the light of these principles, it follows that Section 2, Section 3 (a) and Section 4 which purports to insert a new Section 4-A of the Ordinance are of no effect, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act by notification, orders passed even after the lapse of one year from the date of the Act are orders passed in accordance with the provisions of the said Act, because there is no other Act except the original Act of 1947. Further, it clearly refers to Acts, proceedings, notifications, Orders initiated, issued or made at any time on or after 12th March 1948 which is the date on which the Act came to an end, from which it is clear that it is the intention of His Excellency the Governor by this provision to validate all the proceedings. Such power of validation is recognized by Courts in India and the Privy Council. 27. Immediately after the Special Criminal Courts Ordinance, II [2] of 1942 was declared ultra vires by the Federal Court the Governor. General issued Special Criminal Courts (Repeal) Ordinance Xix [19] of 1943 which by Section 3 provided that: Any sentence passed by a Special Judge, a Special Magistrate or a summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at whic ..... 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