Shib Nath Banerjee And Ors. vs A.E. Porter And Ors. [ALL HC CALCUTTA 1943 JUNE]

KEYWORDS:- DETENTION- ORDINANCE MAKING POWER OF GOVERNOR-GENERAL-

DATE:- 3rd June 1943

In accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a Court of Justice and it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive.

ACTS:- Rule 26, Defence of India Rules-Defence of India Act, 1939-Government of India Act (26 Geo. V, C. 2)

Calcutta High Court
Shib Nath Banerjee And Ors. vs A.E. Porter And Ors.

Equivalent citations: AIR 1943 Cal 377

Mitter, J.

JUDGMENT

1. The nine persons on whose behalf applications under Section 491, Criminal P.C. have been made before us by their relations have been detained in different jails in pursuance of orders passed under Rule 26, Defence of India Rules, on diverse dates between 24th October 1940 and 8th March 1943. Those applications were made on 24th April 1943 after the Federal Court had declared the said rule to be ultra vires Section 2, Sub-section (2), Clause (x), Defence of India Act (35 of 1939), in Keshav Talpade v. Emperor . On the same date, nine rules were issued on the Crown to shew cause why the said persons should not be released, Those rules came on for hearing/before us on 7th May 1943. At an early stage of the hearing, seven out of the nine detenus applied to us to give them facilities to swear affidavits in jail. We granted their prayer. They swore affidavits and those affidavits have been put on the record with liberty to the Crown to file affidavits in answer. Another affidavit sworn by Dr. Nalinaksha Sannyal, a member of the Bengal Legislative Assembly and a first cousin of Sasanka Sekhar Sannyal, one of the detenus, was put before us. The Crown objected to the reception of that affidavit but we overruled that objection and directed that affidavit to be put on the record, the Crown being given liberty to file an affidavit in answer. At the time when we admitted Dr. Nalinaksha Sannyal’s affidavit we intimated that we would give reasons in our judgment for admitting the said affidavit.

2. At the time when Dr. Nalinaksha’s affidavit was put in the advocates for the petitioners stated that as that affidavit embodied only the proceedings in the Legislative Assembly which would be relevant in all the nine cases before us it would be a needless repetition to file affidavits of exactly the same nature in the other eight cases. They ; accordingly prayed verbally that the formality of having eight more affidavits of the same nature, one in each of the other eight cases, may be dispensed with and Dr. Nalinaksha Sannyal’s affidavit may be allowed to be used in all the nine cases which we were hearing together. To that course the learned Advocate-General did not object and we allowed the prayer. The Crown has put in an affidavit in answer affirmed by Mr. Porter, who at all material times had been the Additional Secretary in the Home Department of the Government of Bengal, to meet the allegations made in the affidavits of the, seven detenus and those made in the affidavit of Dr. Nalinaksha Sannyal. The orders passed on the nine detinues under Rule 26 have been produced by the Crown for our perusal. True copies of those orders have been put on the record. After the decision of the Federal Court in Keshav Talpade’s case,1 the Governor-General has, on 28th April 1943, made and promulgated an Ordinance (Ordinance No. 14 of 1943, hereafter to be called the Ordinance) under Section 72 of Schedule 9, Government of India Act. That Ordinance is as follows:

Whereas an emergency has arisen which makes it necessary further to amend the Defence of India Act, 1939 (35 of 1939) for the. purpose hereinafter appearing;

Now therefore in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act (26 Geo. V, C. 2) the Governor-General is pleased to make and promulgate the following Ordinance:

1. Short title and Commencement – (1) This Ordinance may be called the Defence of India (Amendment) Ordinance, 1943. (2) It shall come into force at once.

2. Substitution of new clause for Clause (x) of Section 2(2), Act 35 of 1939 – For Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939 (35 of 1939), the following clause shall be substituted, and shall be deemed always to have been substituted, namely:

(x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be suspects, on grounds, appearing to such authority to be reasonable, of being of hostile origin, or having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, Sis Majesty’s relations with foreign powers or Indian States, the maintenance of peaceful relations in tribal areas or the efficient prosecution of the war, or in respect of whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him for acting in such, prejudicial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.

3. Validity of orders made under Rule 26, Defence of India Rules. – For the removal of doubts it is hereby enacted that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act, 1939.

3. The underlined (here italicized) portions of Section 2 of the Ordinance represent the amendments made to Section 2, Sub-section (2), Clause (x), Defence of India Act, 1939. Rule 26 of the Defence of India Rules was left intact, but by the aforesaid amendment of Section 2(2), Clause (x), Defence of India Act, 1939, the ground on which the Federal Court had pronounced Rule 26 to be ultra vires was cut away. To regularise the detentions that had been made in the past by orders made under Rule 26 and to prevent the legality of those orders for detention being challenged in Courts the amendment was given retrospective operation and Section 3 of the Ordinance was enacted with the same purpose in view. The Crown pleads this ordinance in answer to the claim for release of the nine detenus.

4. The petitioners have urged the following points : (1) That the whole of Section 2, Defence of India Act, both in its original and amended forms, is ultra vires the Indian Legislature. (2) That the portion of Clause (x) of Section 2(2) of the said Act, which has been added by the amendment made by the Ordinance is ultra vires the Indian Legislature and accordingly of the Governor-General’s powers under Section 72 of Schedule 9. The corresponding portions of Rule 26 of the Defence of India Rules are bad and consequently the orders of detention in the cases we have before us are bad. In addressing their arguments on the first point the learned advocates appearing for the petitioners proceeded upon the assumption that ordinance 14 of 1943 is a good enactment. (3) That the Governor-General has no power to repeal or amend directly any Act of the Federal Legistature by an Ordinance made and promulgated under Section 72, of Schedule 9, Government of India Act, 1935. (4) That it is only the Central Indian Legislature that has the power to repeal or amend an Act of the Central Indian Legislature passed under the provisions of Section 102, Government of India Act. (5) That the Governor-General has no power to legislate by such an ordinance on any subject enumerated in List II, of Schedule 7, Government of India Act. (6) That in any event the Governor-General has no power to give retrospective operation to such an ordinance. (7) That in any event the ordinance (14 of 1943) cannot affect proceedings which were pending at the date of its promulgation. (8) That Section 3 of the Ordinance (14 of 1943) has no independent existence apart from Section 2 of the said Ordinance and must stand or fall with that section. (9) That Rule 26, Defence of India Rules, had no existence in the eye of law on 29th September 1939, when the Defence of India Act was passed and so does not exist even now either in its original or amended forms. (10) That even if Rule 26 be intra vires the detention of the nine persons, whose eases are before us was improper.

(1). Section 2, Defence of India Act, is ultra vires.

5. In Talpade’s case1 the Federal Court has decided that the Defence of India Act is not ultra vires the powers of the Central Indian Legislature, that most of the matters covered by the general words in Section 2(1) as well as by the more precise provisions set out in Sub-section (2) with its 35 paragraphs are covered by Lists I, II and III of Schedule 7, Government of India Act. That judgment also indicates that preventive detention for the defence of British India being in item 1 of List I, the Central Indian Legislature would have been competent to legislate on that subject. That omission in Clause (x) of Section 2(2), on the basis of which Rule 26, Defence of India Rules, was pronounced to be bad, has now been supplied by ordinance 14 of 1943. Neither the Federal Court’s judgment nor the amendment made by the said ordinance, however, concludes this point by reason of the form in which it has been urged before us. For the purpose of dealing with this point I would assume that ordinance 14 of 1943 is a good enactment, and that Section 2(1) and in particular Clause (x) of Section 2(2), Defence of India Act, both in its original and final shape, includes matters which are in List I and List II, and none of the matters go beyond the three lists of Schedule 7.

6. The arguments before us have proceeded on these lines : (a) that on a declaration of grave emergency made by the Governor-General under Section 102, Government of India Act, the Central Indian Legislature no doubt acquires the power to legislate on matters enumerated in List II, but then it can legislate on those matters for one Province at a time, that is to say, one such Act cannot comprise more than one Province, and (b) in any case it cannot in one enactment include in an inseparable manner matters coming in List I and List II. These two questions depend solely upon the interpretation of Section 102, Government of India Act. The questions raised are of first impression. I can at once say that I cannot accept those contentions.

7. For deciding the points raised, Sections 99(1), 100 and 102 must be read together, and the definition of the word “Province” as given in Section 46(3), Government of India Act, must be borne in mind. It means the Governor’s Province and does not include the areas under the administration of Chief Commissioners. Section 100, Sub-section (4) has an important bearing on the construction of the phrase, “to make laws for a Province” used in Section 102(1). It is on this phrase only that the first part of the contention of the petitioners’ advocates is based. Leaving out of consideration British Baluchistan, which is specially dealt with in Section 95, the Central Indian Legislature has powers to legislate in respect of matters covered by List II for all areas not comprised in Governors’ Provinces, Rule g. for the Chief Commissioners’ Provinces apart from the provisions of Section 102. Apart from Section 102, it cannot legislate on matters coming within List 11 for the Governors’ Provinces. Section 99(1) defines the local extent of Acts passed by the Central Indian Legislature (= Federal Legislature during the transitional period), and Section 100 distributes between the Centre and the Provinces the subjects of legislation. The phrase “make laws for a Province” used in Section 102(1), accordingly does not mean “make laws for one particular Province at a time.” That phrase had to be used in Section 102(1) because of the language employed in Section 100, Sub-section (4). The real effect of Section 102(1) in my judgment is to destroy the separation of the subject-matter of legislation in regard to Governors’ Provinces, which had been created by Section 100, Sub-section (3) on a grave emergency being declared by the Governor-General. On such a declaration List 11 is to be regarded as part and parcel of List I and the Central Indian Legislature which has by virtue of Section 99(1) the power to legislate over the whole of British India, would acquire the power to legislate over whole of the said area (which necessarily includes all the Governors’ Provinces) in respect of matters contained in List II. There is thus nothing in the Government of India Act which would prevent the Central Indian Legislature from making one enactment which would have operation over more than one Governor’s Province.

8. In construing Section 102(1) I have already indicated my view that List II is fused, so to say, into List I on the declaration of grave emergency. If there was nothing more in the other parts of Section 102, the Central Indian Legislature would have the power to legislate by one enactment on matters of both those lists in an inseparable manner. It had from before the power to legislate over the whole of British India, which covers the areas under the administration of Governors in matters coming in List I and by reason of the declaration of grave emergency it acquires the power to legislate in respect of the matters mentioned in List II for areas included in Governors’ Provinces. To meet these conclusions the learned advocates for the petitioners refer us to Sub-section (4) of Section 102. The argument is that an Act passed by the Central Indian Legislature on matters contained in List I has ordinarily permanent duration. Unless the particular enactment expressly limits its duration it would be on the statute book till expressly repealed by it. An Act however dealing with matters contained in List n passed by the Central Indian Legislature in pursuance of Section 102 would be of limited duration. Unless the proclamation of emergency had been approved by Parliament, such an Act would last for one year from the date of the proclamation of emergency. The petitioners’ advocates say that if these conclusions are sound, and I hold that they are, after the expiry of a year from the date of the proclamation of emergency a part of the enactment – that – which dealt with List I – would remain on the statute book and the other part that which dealt with subjects mentioned in List II would cease to have effect, and if matters of the two lists were essentially and inseparably connected in substance in that enactment, the part that would remain would be unworkable. They accordingly say that as Parliament never intended such a result it must be held that the Central Indian Legislature has no power to legislate on subjects of Lists I and II in that manner. The argument, in my judgment, is of no substance. It proceeds upon an entire misconception of the provisions of Section 102, Sub-section (4). The Central Indian Legislature can say in express terms that a particular enactment on a subject mentioned in List I shall have force for such a limited period of time which it chooses. By combining the matters mentioned in List I with matters mentioned in List II it says by necessary implication, what could have been said in express terms, that provisions made in the enactment which bears upon the subjects of List I would cease to have effect at the same time when the provisions of that enactment relating to matters mentioned in List II would cease to have operation by virtue of the provisions of Section 102, Sub-section (4). I accordingly overrule ground No. 1.

(2). The portion added to Section 2(2) Clause (x) by Ordinance 14 of 1943 is ultra vires.

9. The amendment introduces detention for preventing a person from acting in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty’s relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war. The argument is that defence of British India is not one of the subjects enumerated in the Lists of Schedule 7, Government of India Act, and of the subjects mentioned above “preventive, detention for reasons connected with public order” is the only subject enumerated in those lists, that subject being one of the subjects mentioned in item 1 of List II. I am not convinced that this is correct. In the first place, I cannot say that Parliament kept away all matters concerning defence of British India from the province of the Indian Legislatures. Items 1, 2, 3, 17, 29 and 30 of List I in some form or other have direct relation to defence and war, and items 1 and 29 of List II and No. 34 of List ill may in some circumstances have relation to those subjects. In the second place, the last part of item 1 of List I gives power to the Central Indian Legislature to make laws dealing with preventive detention for reasons of State connected with defence and external affairs. All that is required is that there should be a connexion with defence. In my judgment, all the items mentioned in Section 2(2) Clause (x) as amended by the Ordinance are intimately connected with the defence of British India. Efficient prosecution of this war is directly connected with the defence of British India, when Japan is almost knocking at the gate3 of India. On the maintenance of public safety, interest and public order, on the maintenance of His Majesty’s relations with foreign powers or Indian States and on the maintenance of peaceful conditions in tribal areas, which border on British India, depend the effective prosecution of this war and so those matters are connected with defence of British India.

10. I am prepared to go further and to hold that all the matters mentioned in clause (x) of Section 2(2), Defence of India Act, and in the amendment made thereto by the Ordinance fall within List I, being matters connected with defence and that none of them comes within List II. Items of List I may overlap items of List n but the pith and substance of the particular legislative enactment must be looked at to see if the subject-matter of that enactment comes within items of List I or List II. On this view the second portion of this ground as urged before us does not arise. I accordingly overrule this ground also.

(3). Governor-General has no power to repeal or amend an act of the Central Indian Legislature.

11. This point has been urged before us by the petitioners on the following basis : (a) An ordinance made and promulgated under Section 72 of Schedule 9 being by nature of a limited duration cannot repeal or amend an Act of the Legislature which is by nature of unlimited duration, (b) When two equally competent legislative bodies deriving the authority to legislate from the same paramount Legislature, namely the Parliament, can operate on the same field, one of such bodies cannot directly repeal or amend the laws passed by the other unless the authority which created those two legislative bodies had expressly conferred on one the power of repealing or amending the enactments made by the other, (c) That Parliament never intended to confer the power on the Governor-General to directly repeal or amend an Act of the Central Indian Legislature.

12. I propose to deal with these grounds together. I may at once say that if I could have answered grounds (b) and (c) in favour of the Crown I would have felt no difficulty in rejecting ground (a). There is, in my judgment, no principle which would prevent a Legislature directly to repeal or amend its own permanent enactment by an enactment of a temporary nature. The power to repeal or amend flows from the power to enact. Repeal by a temporary measure would be construed as the suspension for a limited period of time of the provisions of the earlier permanent statute. The question in substance would be a matter of interpretation only. This is the view which has been expressed by Lord Ellenborough C.J. in R. v. Rogers (1809) 10 East 569 at p. 573. It is, however, quite a different question, when one legislative body attempts directly, that is by the expressed force of its provision, to repeal or amend the enactments of another equally competent legislative body.

13. The Central Indian Legislature derives its authority and powers from Parliament. The Governor-General, who also derives authority from Parliament, exercises legislative functions on fulfilling the conditions required by Section 72 of Schedule 9. Emergency gives him the power to legislate for peace and good government of India. He then becomes a legislative organ. The same Act of Parliament gives him the power to legislate under Section 72, which gives authority to the Central Indian Legislature to legislate. He cannot legislate on matters on which the Central Indian Legislature cannot legislate. The only difference is that an emergency must exist (of which he is the sole, judge) before he can embark on legislation by ordinance, and the legislation must be for the peace and good government of British India. But whether the particular provisions which he chooses to enact would promote peace or good government is a matter which is entirely within his judgment. The propriety of the particular piece of legislation cannot be questioned by any outside body : Bhagat Singh v. Emperor . But he cannot act in excess of the powers conferred on him by Parliament. Subject to what has been indicated above, he cannot make a provision in his ordinance that the validity of its provisions or a particular provision therein shall not be challenged in Courts of Judicature in India on the ground of ultra vires his powers. Such a provision would be illegal and would be discarded by Courts, on the principle that he would thereby be able to extend his power to make laws, which Parliament never intended for him. I am making these general observations in view of the provisions of Ordinance 14 of 1943 and by way of introduction.

14. On an emergency the Governor. General encroaches upon the field of the Central Indian Legislature. The Ordinances made and promulgated under Section 72 of Schedule 9 during the transitional period and those made and promulgated under Section 43 after the introduction of Part II, Government of India Act, have the same force and effect as Acts passed by the Central Indian Legislature, the Indian Legislature during the transitional period and the Federal Legislature after Part II has come into operation. There is thus the possibility of an Ordinance made by the Governor-General on an emergency coming into conflict with an Act passed by the Central Indian Legislature. The learned Advocate-General argues, and I dare say rightly, that when such a contingency happens, it must be held that the provisions of the Ordinance would prevail over these of the Act of the Central Legislature. There are two sound principles behind that contention of the learned Advocate-General. One is that where there are two legislative enactments having the same force and effect, the last in point of time must prevail. The other principle is that the special enactment would prevail over the general. I must therefore accept the contention that by creating a repugnancy the Governor-General can destroy or mutilate an Act of the Central Indian Legislature by an Ordinance made and promulgated by him on an emergency. The next step in the argument of the learned Advocate. General requires careful consideration. It is, that when the Governor-General can indirect do away with or modify an Act of the Central Indian Legislature, there is no reason why he cannot directly, that is to say by the express provisions of his Ordinance, repeal or amend an Act of the Central Indian Legislature. The principle on which he stands using his words, is that an authority can do that directly which it can do indirectly. At first sight his contention would appear to be a sound one, but on careful consideration I do not consider it to be so.

15. Where one legislative body seeks to do away with the enactment of another legislative body equally competent to legislate on the subject by creating what appears prima facie to be a repugnancy, it is exclusively within the province of the Courts to decide whether in fact the repugnancy exists, and if it does, to decide which enactment should prevail. The question whether a repugnancy actually exists is often a difficult question. The case in Stewart v. Brojendra Kishore Roy is an illustration of the last-mentioned observation. In Attorney General for Ontrio v. Attorney General for the Dominion of Canada (1896) 1896 A.C. 348 a case which I will deal with later on in some detail, Lord Watson dealing with an Act of the Dominion Parliament of Canada, which in express terms had repealed an Act of the Legislature of the Province of Upper Canada (Ontario), the subject-matter of both the Acts being prohibition of the sale of wine and fermented liquors, laid down the law in the following words:

But the Dominion Parliament has no authority conferred upon it by the Act (The British North America Act, 30 Vict. Rule 3) to repeal directly any Provincial Statute, whether it does or does not come within the limits of jurisdiction prescribed by Section 92. The repeal of a Provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactment of the Dominion; and if the existence of such repugnancy should become a matter of dispute, the controversy cannot be settled by the action either of the Dominion or of the Provincial Legislature, but must be submitted to the judicial tribunals of the country. In their Lordships’ opinion, the express repeal of the old Provincial Act of 1864 by the Canada Temperance Act of 1886 was not within the authority of the Parliament of Canada.

16. In my judgment these observations would apply equally to the case which we have before us. Repeal by repugnancy of the law made by one competent legislative body by another legislative body equally competent to legislate on the same subject is one thing and direct repeal by the one of the legislative enactments of the other is another thing. In cases of the first type the Court has jurisdiction to decide, but in the last type that jurisdiction would be robbed. This, in my judgment, is a distinction of a fundamental nature, which prevents applicability of the principle, that where an authority can do away with a thing indirectly, it can also do away with it directly, to a case of the type which we have before us, a case where one Legislature by its express provisions seeks to override the Act of another Legislature, both the Legislatures deriving their powers from the same paramount Legislature and both being equally competent to legislate on the subject. I go further and hold that the observation which I have quoted above from Lord Watson’s judgment lays down a sound general principle. In any event those observations would apply with the same force to the case before us.

17. The Constitution Act of Canada distributes the field of legislation between the Dominion Parliament and the Legislatures of the Provinces by Sections 91 and 92. The Provincial Legislatures have exclusive jurisdiction to legislate on the sixteen subjects enumerated in section 92. The Dominion Parliament has exclusive jurisdiction to legislate on the twenty-nine subjects enumerated in Section 91. As some matters falling within the twenty-nine classes of subjects enumerated in Section 91 and the sixteen classes of subjects enumerated in Section 92 may overlap, by reason of the wide scope of the enumerated subjects, the Act provides that in cases of such overlapping the matter should be deemed to be outside the classes of subjects enumerated in Section 92. The Dominion Parliament of Canada has, however, a residual jurisdiction. It can legislate on any matter for the peace and good government of Canada which do not fall within the subjects enumerated in Section 92. In the matter of distribution of legislative functions, the Canadian constitution is similar to the Indian constitution, except that the Central Indian Legislature has not the residual jurisdiction which the Constitution Act of Canada has expressly conferred on the Dominion Parliament. The Central Indian Legislature cannot legislate on any matter not covered by Lists I and III, and of List II of Schedule 7, where it legislates in pursuance of Section 102. If legislation by the Central Indian Legislature on a subject not covered by those lists becomes necessary the Governor-General has in his discretion to give power to that Legislature by a notification issued under Section 104. This is a distinction between the Canadian and Indian constitution, but on the question now under consideration it is not a material distinction. The fact that in Ontrio v. Attorney General for the Dominion of Canada (1896) 1896 A.C. 348 the question concerned an Act of the Dominion Legislature quoad an Act of the Provincial Legislature, in my judgment, so far as the question of principle is involved, is not also a matter of vital distinction. I will now analyse that case.

18. In 1864 the Legislature of the province of Upper Canada (Ontario) passed a Temperance Act which contained provisions prohibiting retail sale of fermented liquors within municipalities, townships and incorporated villages within that province. The Act was not to come into force in any such local area, unless and until bye-laws were made upon the majority of the electors within that area voting for the introduction of the Act in that area. That Act was passed be-fore the Union. In 1867 the British North America Act was passed. The Union was established and the Dominion Parliament created. By Sections 91 and 92 of that Act the legislative powers were distributed between the Dominion Parliament and the Legislatures of the Provinces. The Temperance Act of 1864 was in force in Ontario up to 1886, when the Dominion Parliament passed the Temperance Act of 1886 for the whole of the Dominion of Canada. Like the Act of 1864 it contained provisions prohibiting the sale of fermented liquors. There were differences in detail between the provisions of that Act and the Act of 1864. Those details are not material for our purpose. That Act was to be not in force suo motu in any county, municipality etc., but had to be introduced in any such area within the Dominion by following a procedure similar to the procedure laid down in the Act of 1864. Both the Acts were optional Acts, in the sense that it depended upon the will of the electors to bring them into active force in a I particular local area. The Dominion Act of 1886, however, contained a section which expressly repealed the prohibitory clauses of the Temperance Act of 1864 in the manner stated at the bottom of p. 857 and top of p. 358 of the report. The Parliament of Ontario passed an Act in 1890 (53 Vict. C. 56) Section 18 of which in effect revived the prohibition laws which were in force in Ontario at the date of British North America Act, 1867. The competence of the Parliament of Ontario to make this enactment was the principal question in the case.

19. Lord Watson in delivering the judgment held that it was within the jurisdiction of the Dominion Parliament to enact the prohibition clauses as enacted in the Temperance Act of 1886. He also held that the e Parliament of Ontario was also competent to enact Section 18 of 58 Vict, C 56. That part of the judgment is not material for the point we are considering. It depended upon the construction of Sections 91 and 92, British North America Act, 1867. On the assumption that the Dominion Parliament was competent to legislate on that subject, namely, prohibition, and that the Parliament of Ontario could have legislated on the subject if the Dominion Parliament had not legislated, Mr. Blake, who was contending against the validity of Section 18 of the Provincial Statute (53 Vict., C. 56), contended that after the legislation of the Dominion Parliament in 1886 on that subject, the Provincial Legislature could no longer legislate on the said subject. To support that contention he relied upon the doctrine of “occupation of the field” – which embodies a well-established and general principle “of constitutional law. He argued that the Dominion Legislature by enacting the Temperance Act in 1886 had completely occupied the whole field of “prohibition” in 1886 and that the Provincial Legislature of Ontario could not in law thereafter enter that field. This contention was examined by Lord Watson at page 366 of the report. In my opinion, the position was this: The Provincial Legislature was on the field – was occupying it – till the Canadian Temperance Act of 1886 was passed, because the Temperance Act of 1864,was in force then in the sense that it was on the statute book. The first necessary step in the occupation of that field by the Dominion Parliament would be the act of driving out the Provincial Legislature from that field. That the Dominion Parliament purported to do by expressly repealing the prohibition clauses in the Provincial Act of 1864. If that repeal clause in the Dominion Act of 1886 was a valid piece of legislation the Ontario Legislature would in law be driven out of the field by the Dominion Parliament, and the Dominion Legislature could occupy it completely. If however that clause was beyond the powers of the Dominion Parliament, the Ontario Legislature would be still in occupation of the field. As the Dominion Parliament was found to be competent to enact the prohibition clauses as contained in the Temperance Act of 1886 it validly occupied the same field, but unless the repeal clause in the Dominion Act was intra vires, the Dominion Legislature would not be in complete or exclusive occupation of that field in 1886. In law both the Legislatures would be occupying the same field after 1886. The Provincial Legislature of Ontario, would not, in that case, be absolutely debarred from legislating on the subject, and the only material question would be a question of repugnancy, if it chose to make enactments on prohibition after the Dominion Temperance Act of 1886. The question of repugnancy could be solved by the Courts only, and as there was no express provision in British North America Act for determining which legislative enactment should prevail, that question would have had to be solved by recourse to general principles. What those general principles were, where there was a competition between the Dominion Legislature and the Provincial Legislature are stated in the opening words of the paragraph at page 366 of the report.

20. What I have statedabove is a necessary background for understanding the passage at that page which follows the passage which I have quoted in the earlier part of my judgment. The point there was – and I have already indicated how that point was a material point in that case – whether one Legislature, in that case the Dominion Parliament, could by the express provisions of its statute and by sole force thereof repeal the provisions of a statute passed by another Legislature, in that case the Legislature of the Province of Ontario, both the Legislatures being equally competent to legislate on the subject of prohibition and both deriving their powers from the same Act of Parliament, which had not in express terms conferred on one the power of repealing the Act passed by the other. That question was answered in the negative. An argument was advanced that Section 129, British North America Act, had given in express terms the Dominion Parliament the power to repeal the Provincial Temperance Act of 1864. That contention was overruled and in connexion with that contention Lord Watson made the following observations at the bottom of p. 366 of the report:

It appears that neither the Parliament of Canada nor the Provincial Legislatures have authority to repeal statutes which they could not directly enact.

and then referred to Dobie v. Temporalities Board (1882) 7 A.C. 136 These last-mentioned observations in my judgment were made on the matter of construction of Section 129 of the Canadian Constitution and did not lay down a general proposition of law. Section 129 provided that all laws in force in the Provinces of Canada (which consisted of the Province of Ontario and Quebbec, see Section 6), Nova Scotia and New Brunswick at the date of the Union shall continue in force till repealed, abolished or altered by the Parliament of Canada (the Dominion Parliament) or by the Legislature of the respective province, according to the authority of the Parliament or of that Legislature under this Act.

21. All that Lord Watson said in this part of the judgment was that according to the true construction of Section 129 the Dominion Parliament could not repeal or amend the Temperance Act of 1864, which, being an Act passed before the Union, was continued by Section 129 in the Province of Ontario, as the Dominion Parliament could not have passed that Act for the Province of Ontario only after the Union by reason of the provisions of Section 92 of the Constitution Act of Canada.

22. The case before us is in essential features of the same type. Both the Central Indian Legislature and the Governor-General exercising his functions under Section 72 of Schedule 9 derive their powers to legislate from the same Act of Parliament. Both are competent to legislate on items of Lists I and III, bearing upon peace and good government of British India. I am leaving out for the present List II subjects, for a question has been raised as to whether the Governor-General can by Ordinance made and promulgated under Section 72 encroach on any subject of List II. The Act of Parliament does not give express powers to the Governor-General to directly repeal or amend an Act of the Central Indian Legislature. The observations of Lord Watson, which I have first quoted, would therefore apply with equal force to the case before us. I therefore hold that the Governor-General has no power to repeal directly and in express terms any Act of the Central Indian Legislature. The power to amend stands on the same principle, for whereas repeal means the destruction of the whole, amendment means the destruction of a part, followed, may be but not necessarily, by the creation of a substitute. I accordingly hold that Section 2 of Ordinance 14 of 1943 is ultra vires the powers of the Governor-General. Apart from the reasons stated above the Government of India Act gives indications that such power was not intended by Parliament for the Governor-General. In cases where either the Governor-General or the Governor is given the power to make what in substance are laws – either by Ordinance or by Regulation, and the stand on the same footing under the Indian Constitution Act – Parliament had expressed itself in clear terms; where it intended that they (the Governor-General or the Governor, as the case may be) should have the power to repeal or amend an Act of the Legislature. A reference to Sections 92(2) and 96 read with Section 95(3), Government of India Act, supports the view I am taking. The last portion of Section 72 of Schedule 9 also indicates that where Parliament intended to confer such a power to a co-ordinate legislative body, e.g., the Indian Legislature, it expressed itself in an unambiguous manner.

23. It only remains to consider the reasons given in the decision of the Madras High Court in Govind Swaminathan v. Emperor Cri. Misc. Petn. No. 302 etc. of 1943. The judgment has not yet been reported, but the Registrar of the Madras High Court has supplied us with an authenticated copy. The judgment of the Allahabad High Court delivered on 30th April 1943 in Emperor v. Baldeva Dass Cri. Misc. Petn. No. 356 of 1943, where the validity of Ordinance 14 of 1943 was also challenged is not helpful, for the point which I am now considering was neither raised nor discussed.

24. In the Madras decision three reasons have been given for coming to the conclusion that the Governor-General has power to amend an Act of the Indian Legislature, namely : (1) that in an emergency the Governor-General has the same legislative powers as the Indian Legislature, (2) that the Governor-General is not a legislative authority subordinate to the Indian Legislature, and (3) that as Section 72 of Schedule 9 places no restriction on his powers he must be taken to have the power to amend.

25. The first proposition appears to me to have been stated in somewhat broad terms, but I am not building an argument on it. Section 72 says that when an Ordinance is promulgated it will have the like force and effect as an Act of the Indian Legislature. The Acts of both the bodies are placed on the same level. That is all that the section says. Be that as it may, I will assume that the first proposition is correct. The second proposition is undoubtedly correct. The Governor-General has not been made a legislative authority subordinate to the Indian Legislature. But from these it would not necessarily follow that as a legislative body he would have the power to nullify or amend directly the Act of an equally competent legislative authority with co-ordinate powers. The third proposition is in my judgment not a sound one. The thing has to be looked at from a positive aspect, and not from a negative one. It is not correct to say that one 1 legislative authority will have the power to amend the Act of another legislative body of equal authority, because no restriction or limitation has been placed on its powers. To have the power to amend the Act of another legislative body, which stands on the level with itself, that power has to be conferred expressly by the paramount Legislature. I have already given detailed reasons for that proposition. Moreover no reference was made in the Madras decision to other sections of the Government of India Act, which throw light upon the question. I have already pointed out some of those sections.

26. The learned Advocate-General has further argued that even if it be held that the Governor-General had no power to amend directly an Act of the Central Indian Legislature, the provisions, of Section 2 of Ordinance 14 of 1943 cannot be disregarded by us. That Ordinance, he says, has to be treated as an independent piece of legislation, which the Governor-General could have made under Section 72 and as the provisions of Section 2 of the Ordinance is clearly repugnant to Section 2, Defence of India Act, it must prevail. I cannot accept this argument. It is no doubt true that the Governor-General by creating a repugnancy by the provisions of an Ordinance promulgated by him under Section 72 could have in effect destroyed or modified an Act of the Indian Legislature. But it is one question as to what he could have done and quite a different question as to what he has done. The preamble to the Ordinance says that its purpose was to amend the Defence of India Act and the actual enactment is amendment. Moreover, the ordinance cannot stand independently. Without reference to Sections 2(1) and 2(2), Defence of India Act, and without an incorporation of those provisions into the Ordinance the provisions of the Ordinance have no meaning and effect, for nowhere in this Ordinance, as it stands by itself, a rule-making power has been conferred on the Central Government.

(4). Only the Central Indian Legislature has power to amend an Act passed by it in pursuance of Section 102.

27. This ground has been urged on the strength of the proviso to Section 102(1), Government of India Act. Section 102(1), as I have already held, gives Central Indian Legislature power to make laws in respect of matters included in List. II on the declaration of grave emergency by the Governor-General. The proviso runs thus : “No bill or amendment for the purpose aforesaid shall be introduced etc.”

28. In my judgment the phrase “for the purpose aforesaid” does not mean “for the purpose of meeting the grave emergency.” That proviso means that if the Central Indian Legislature intends to pass a law on a matter coming within List II, the previous sanction of the Governor-General would have to be obtained. The phrase “for the purpose aforesaid” means “for the purpose of making laws on matters of the Provincial List.” The proviso attaches a condition on the powers of the Central Indian Legislature in the matter of making laws in the exclusive provincial field. That section occurs in Part V which deals with legislative powers of the Indian Legislatures-the Central and the Provincial. I cannot hold that if the Governor-General had otherwise the power to repeal or amend an Act of the, Central Indian Legislature, that power would be taken away from him by the proviso to Section 102(1) in respect of an Act passed by that Legislature in pursuance of that section.

(5). The Governor-General has no power to legislate by ordinance on matters enumerated in List II.

29. Section 72 of Schedule 9 has been bodily taken from the Government of India Act of 1915, which is no longer in force. Under the Government of India Act, 1915, the distribution of the legislative business between the Indian and the Provincial Legislature was on a basis which is different from the scheme in part V, Government of India Act, 1935. Under Section 65 of the former Act the Indian Legislature could legislate for peace and good government on all subjects not especially excepted by Sub-sections (2) and (3) of that section. The Provincial field was not absolutely demarcated as in the Act of 1935. But those distinctions are of no importance. Section 72 of Schedule 9 of the Act of 1935 A being a part of the Government of India Act of 1935 has to be construed with reference to other parts of that Act. Two conditions contained in Section 72 require consideration. The first is that the power of making ordinances “is subject to the like restrictions as the power of the Indian Legislature to make laws,” and the second is that the Indian Legislature can by an Act control or supersede the ordinance.

30. The first thing to find out is what are the restrictions on the powers of the Central Indian Legislature during the transitional period. The restrictions are the same as are put on the Federal Legislature after Federation is established (Section 316). My view is that the Governor-General has the same powers which the Central Indian Legislature would have had at the time when the particular ordinance is made and promulgated. By a declaration of emergency by the Governor-General under Section 102 the Central Indian Legislature acquires the power to legislate on matters included in List II. If the Governor-General makes and promulgates an ordinance after he has declared a grave emergency under Section 102, that ordinance can directly deal with matters enumerated in List II. The object which Parliament had in view was to centralise powers “in the centre” when a grave emergency appeared. It is, however, said by the learned advocates J appearing for the petitioners that this view would militate against the second condition mentioned in Section 72 of Schedule 9. The argument is as follows:

The declaration of “grave emergency” under Section 102 gives the Central Indian Legislature power to legislate on matters “enumerated in List II during the limited period of six months from the date of the declaration of emergency, unless Parliament in the meantime had approved the declaration of emergency. The law passed during this period will no doubt be in force for a further period of six months after the declaration of emergency had ceased to have force. But during this second period” of six months the Central Indian Legislature would have no power to legislate on a Provincial subject. If the Governor-General were to make and promulgate an Ordinance on a Provincial subject on the last day of the first period of six months during which the Central Indian Legislature has power to legislate on such a subject, and beyond which period it has no such power, the Central Indian Legislature would have no power by an Act to control or supersede such an ordinance passed so late in the day. It is no doubt true that the provisions of Section 102 imply that the Central Indian Legislature has power only during the first period of six months, which is the normal life of a declaration of emergency, to legislate on provincial subjects, but I do not quite appreciate why that Legislature could not have power to amend and supersede (subject to Section 108(1)(b), Government of India Act, 1935) the Ordinance as long as the Ordinance has force and effect. A special power has been conferred on it by Section 72 of Schedule 9, and that power would exist as long as the ordinance is there, notwithstanding the general provisions of the first part of Clause (c) of Section 102 Sub-section (3). For the reasons given above I overrule this ground.

(6). Governor-General has no power to give retrospective operation to his ordinance.

31. Section 72 of Schedule 9 as it originally stood stated that an ordinance would remain in force for six months from the date of its promulgation. The limitation of six months does not apply to ordinances promulgated after the passing of the India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. VI, c. 33) but it is said that provisions of Section 72 as it stood before the said amendment has an important bearing on the question. It is said that as an ordinance had by the provisions of Section 72, as it originally stood, a maximum life for six months, the Governor-General could not give operation to an ordinance from a date anterior to the date of its promulgation, for in that case he would be giving his ordinance a span of life for more than six months. In the first place Section 72, as it originally stood, nowhere laid down that the maximum life of an ordinance was to be six months. The section said that the ordinance will have operation for a period of six months from the date of its promulgation. To me it appears that if an ordinance giving retrospective operation to its provisions had been passed at a time when Section 72 was unamended, the provisions, with its retrospective effect, would have lasted for six months from the date of its promulgation. I agree with observations made by the Madras High Court in Govind Swaminathan v. Emperor Cri. Misc. Petn. No. 302 etc. of 1943 that there is a vital difference between the period during which an ordinance remains in force and the period over which acts of persons are affected by the ordinance. I overrule this point also.

(7). The ordinance cannot affect pending proceedings.

32. As the proceedings before us were pending when ordinance 14 of 1948 was promulgated this question is an important one. A large number of cases has been cited before us by both sides on this point. Most of the important decisions have been noticed and reviewed by Sulaiman and Varadaehariar JJ. in United Provinces v. Atiqa Begum and in the decision of this Court in Punyendra Narain Deb v. Jogendra Narain Deb . The first general principle which I deduce from the cases is that the law existing at the commencement of an action or proceeding must decide the rights of the parties and not the law that existed at the date of the judgment or order. In Hitchcock v. Way (1837) 6 A. & E. 943 where an Act of Parliament was passed during the pendency of an action to recover money due on a bill of exchange, which had materially affected the rights of parties, it was contended that the law which existed at the time of the judgment would be applicable, but that contention was overruled by Lord Denman C.J. who observed that in the absence of any provision in the statute, that had been passed during the pendency of the action, the law as it had existed at the date when the action commenced must decide the rights of the parties. Cases where the statute under consideration uses No. words giving its provisions retrospective operation are simple. There pending actions and proceedings would not be affected. But where the statute gives 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. The question finally resolves itself into a matter of construction. In my judgment express words are not essential in order that a statute may apply to pending actions or proceedings. It is enough if that intention can be inferred, and for ascertaining the intention of the Legislature not only the meaning of words used in the enactment but also the object of the enactment must be kept in view. In fact the object of the enactment as gathered from its provisions would be a very important matter. In Rex v. General Commissioners of Income-tax for Southampton, Exparte Singer (‘1916) 2 K.B. 149 Lord Reading C.J. laid down the law thus:

I cannot accept the contention of the applicant that an enactment can only take away vested rights of action, for which legal proceedings have been commenced, if there are in the enactment empress words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute.

33. In Quilter v. Mapleson (1883) 9 Q.B.D. 972 where the statute in question did not in express terms say that its provisions were to apply to pending actions Sir George Jessel held the enactment to be applicable to pending actions, observing thus at p. 675 of the report:

We must therefore in furtherance of the objects of the Act, hold the enactment to apply to pending proceedings unless there is something in the words to prevent our doing so.

34. In my judgment it is on this principle that the case in K.C. Mukherjee v. Ramratan Koer has proceeded. The principle is, that if the object of an Act, and that object must be gathered from the words of the enactment, itself requires that the Act should apply to pending proceedings, it will be so applied, unless there is a saving clause in the Act itself to the effect that it would not apply to pending proceedings. In the light of these principles we will have to examine Ordinance 14 of 1943. The object is plain. Clause (x) is to be in the form in which it is put in Section 2 of that Ordinance from 29th September 1939, when the Defence of India Act was passed. Section 3 of the Ordinance contemplates orders for detention that had been passed in the past, and some of the orders for detention may have been passed soon after 29th September 1939. None of those orders made in the past are to be called in question on the ground that Rule 26, Defence of India Act, was ultra vires. If the words had only been that “no order shall be called in question” there could have been some room for saying that the Ordinance was not intended to apply to pending proceedings, but to proceedings that may be commenced in future. But there are the additional words : “No order shall be deemed to be invalid.” Those words make the object of the enactment clear. It attempts to validate all detentions under Rule 26 made ever since 29th September 1939. The Governor. General by his Ordinance says that no person detained in the past under orders made under Rule 26 is to be released on the ground that the rule was bad. That being the plain intendment of the Ordinance, its provisions, if otherwise valid, would apply to pending proceedings, as there is no saving of pending proceedings. I therefore answer this question against the petitioners.

(8). Section 3 of the Ordinance has no |existence apart from Section 2.

35. The argument of the learned Advocate-General is that even if the amendment of Section 2(2), Clause (x), Defence of India Act, by Section 2 of the Ordinance is bad, Section 3 of the Ordinance stands and the orders of the detention on the persons before us cannot be challenged. I cannot accept this contention. I have already held that the Governor-General cannot repeal or amend an Act of the Central Indian Legislature. An Act is amended if some of its provisions are altered. It is also amended if some provisions are added to its original provisions. I consider both Sections 2 and 3 of the Ordinance to be amendments of the Defence of India Act. The preamble to the Ordinance throws light on the matter and supports my view. That is one reason why I hold that Section 3 is bad, for I have already held that the Governor. General by his Ordinance made and promulgated under Section 72 of Schedule 9 cannot amend an Act of the Indian Legislature. There is another reason why I hold that Section 3 of the Ordinance falls to the ground with Section 2. Section 3 says that for the removal of doubts the provisions contained therein were enacted. The ‘doubt’ in my judgment would have arisen in the following manner, if Section 3 had not been enacted. By Section 2, Clause (x) of Section 9(2), Defence of India Act, was amended with retrospective effect. That amendment would sustain Rule 26, Defence of India Eules, from 29th September 1939, when the Defence of India Act was passed, but it could still be argued that the orders of detention made before 28th April 1943, when the Ordinance was promulgated, were bad. To set at rest that point, Section 3 was enacted. I do not wish to develop this point further, as it is dealt with fully in the judgment of my learned brother Sen J. which I had the advantage of seeing. I agree with the reasons given therein for coming to the conclusion that Section 3 of the Ordinance cannot have an existence independently of Section 2. I accordingly answer this ground in favour of the petitioners.

(9). Rule 26 of the Defence of India Rules had no existence when the Defence of India Act (35 of 1989) was passed.

36. Assuming Section 8 of Ordinance 14 of 1948 to be a good enactment the petitioners can challenge Rule 26 of the Defence of India Rules on any ground other than the ground mentioned therein. That position is clear on the terms of Section 8 of the Ordinance, and is moreover not contested by the learned Advocate-General. The petitioners’ advocates attack Rule 26 on the ground that it never had existence in the eye of law. For following this argument the following facts are relevant. On 3rd September 1939 Ordinance 5 of 1939 was made and promulgated by the Governor-General under Section 72 of Schedule 9. Rule 26 of the Defence of India Rules was published on the same date. Ordinance 5 of 1989 was repealed by the Defence of India Act (85 of 1939) which was passed on 29th September 1939. Section 2 of the Act is a reproduction of Section 2 of that Ordinance. The substance of that rule as published on 3rd September 1939 so far as it is material for the argument on this point is as follows : Paragraph 1 gave the Central Government only the power to make, if satisfied, any of the orders mentioned in Clauses (a) to (g) of that paragraph on any person with a view to prevent him from acting in a manner prejudicial to the efficient prosecution of the war, to the defence of British India or to public order. Clause (b) provided for detention. Paragraph 2 gave the Provincial Government powers to make like orders on a person who was within Province with a view to prevent him from acting in a manner prejudicial to public order only.

37. After the Defence of India Act had come into force that rule was amended twice – once on 28th March 1940 by Notification No. 356-O.R./40and then again on 3rd August 1940 by Notification No. 534-O.R./40. The rule as it exists now with the exception of the words “His Majesty’s relations with foreign powers or Indian States the maintenance of peaceful conditions in tribal areas” after the words “public order” in para. 1 was the result of the first-mentioned amendment and those words were added by the second amendment. Section 21, Defence of India Act, on which the argument is based is as follows:

The Defence of India Ordinance, 1939, is hereby repealed, and any rules made…in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made…in exercise of the powers conferred by or under the Act as if this Act had commenced on 3rd day of September 1939.

38. The learned advocates for the petitioners contend that on the reasons given by the Federal Court in Talpade’s case1 it must be held that Rule 26 as made and published on 3rd September 1939 was also ultra vires, because it went beyond what had been provided for in Section 2(2), Clause (x) of Ordinance 5 of 1939. It was made, they say, not in the exercise of the powers conferred by Ordinance 5 of 1939, but in excess of those powers. It had, therefore, no existence in the eye of law on 29th September 1939, when the Defence of India Act 1939, was passed, and therefore could not be continued thereafter by the force of Section 21, Defence of India Act. To emphasize this argument reference was made to Section 24, General Clauses Act (10 of 1897) and our attention was drawn to the difference in the language employed there. It was pointed out that the language of Section 24, General Clauses Act, is not “made in exercise of powers” under the repealed Act or Regulation etc., but simply made or issued under the repealed Act or Regulation. The argument does not however appear to me to be convincing. I do not see any substantial difference in these two phrases. In my judgment, Section 21 does not merely continue the rules made in pursuance of the powers given by the Defence of India Ordinance but continues then by re-enactment. What in fact had existed was continued-not merely what existed only as valid in law. Rule 26 as it then existed may have been ultra vires, but no Court had then pronounced it to be so. Moreover, a finding by a Court that a particular rule or bye law is ultra vires does not remove it from the statute book, for Courts can only declare a rule or bye-law to be void in order to give the substantive relief asked for. It cannot say that it never existed. The observations of Dicey at p. 98 of Law of the Constitution (Edn. 9) lead to the inference which supports the view I am taking. Rule 26 as it existed before 29th September 1939 was accordingly a rule made in exercise of the powers under the Defence of India Act, as in fact it was made in the exercise of the powers given by Ordinance 5. As it had existed at the passing of the Defence of India Act it continued and could later on be amended from time to time.

(10). Detention of the nine persons improper.

39. The argument on this point has been addressed to us under two heads : (i) that the authority or the person who is authorised to detain under Rule 26, Defence of India Rules, had not in fact been satisfied that the detention of the nine persons before us was necessary : and (ii) that the power of detention had not been exercised in the case of those persons in a bona fide manner. In support of the proposition that Courts can investigate these matters, two cases have been cited before us by the petitioners’ advocates, viz. Eshugbayi Eleko v. Officer administering the Government of Nigeria (’31) 18 A.I.R. 1931 P.C. 248 and Jitendra Nath Ghosh v. Chif Secretary to the Government of Bengal . In the first mentioned case, the legality of the expulsion of the Eleko by the executive authority of Nigeria under powers conferred by an Ordinance was challenged. It was held that the Court was entitled to investigate as to whether the conditions on which the executive act of expulsion depended for its validity had been complied with or not. In the cases before us, the act of detention of the nine persons is an executive act, which depends upon the condition that the authority designated by Rule 26 is to be satisfied that the detention of the particular person was necessary for preventing him from doing acts of a prejudicial nature. The Courts cannot enquire into the grounds of satisfaction or the sufficiency thereof but have certainly the jurisdiction to enquire as to whether that authority or person was satisfied as a matter of fact before he made the order of detention. In the second case, the phrase “illegally or improperly detained” occurring in Section 491, Criminal P.C. was construed. It was held that the word “improperly” can only refer to cases in which, although the forms of law had been observed, there had been a fraud on an Act or an abuse of the powers given by the Legislature.” In Liversidge v. Sir Anderson (1942) 1942 A.C. 206, the principle that a Court can look into the question as to whether the power of detention had been exercised in a bona fide manner by the executive in exercise of powers given to it by the Legislature was re-affirmed, and it was stated if the Court was satisfied that it had not been so exercised, it must give relief. These principles are, in my judgment, well established.

40. In all the cases before us, the orders of detention have been made in the following form:

Whereas the person known as (name given) is detained in the…. Jail under the provisions of Rule 129, Defence of India Rules:

And whereas the Governor has been satisfied that with a view to preventing the said person from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, it is necessary to make the following orders to continue his detention:

Now therefore in exercise of the powers conferred by Clause (b) of Sub-rule(l) and Sub-rule (5) of Rule 26, Defence of India Rules, the Governor is pleased to direct (a) that the said person shall until further orders be detained; (b) that until further orders the said person be detained in…jail; and (c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940.

By order of the Governor.

Signed by Assistant, Deputy or Additional Secretary (as the case may be) to the Government of Bengal.

41. These orders have been authenticated in accordance with the rules framed under Section 59(2), Government of India Act. The learned Advocate-General concedes that if the orders of detention had not been so authenticated it would have been open to : Courts to investigate the question as to whether the Governor was satisfied in fact on the general principles laid down in Eshugbayi Eleko v. Officer administering the Government of Nigeria (’31) 18 A.I.R. 1931 P.C. 248, but in the cases before us we must take the orders of detention as they stand in view of Section 69 (2), Government of India Act; that is to say, he says that we are prevented from saying that the Governor was not satisfied as to the necessity of detaining these persons, for in the order the Governor says that he was satisfied. In my judgment, this is not the effect of Section 59(2). That section prevents an order of the Governor duly authenticated from being challenged on the one ground specified in that subsection. No one can say that the order is not the order of the Governor and that is all the effect of that sub-section, but he can certainly say that the Governor was not in fact satisfied. The affidavit of Dr. Nalinaksha Sannyal contains materials relevant to the enquiry as to whether the authority required by Rule 26 was in fact satisfied before the orders of detention were made under Rule 26. It embodies the answers given by the Home Minister on the floor of the Legislative Assembly. Proceedings in Council ought to be proved by the journals of the House, but the learned Advocate-General has waived the mode of proof. He says however that the answers given by the Home Minister are not admissible in evidence, and in support of his contention has referred us to the decision of’ the Judicial Committee of the Privy Council in Gerald Lord Strickland v. Carmelo Mifsud Bonnici (’35) 22 A.I.R. 1935 P.C. 34. In that case, to the plaintiff’s claim for damages for defamation, the defendant pleaded justification, and in support of that plea proved some reports of the Legislative Assembly which contained a speech delivered by the plaintiff when he was the leader of the opposition. Lord Thankerton in dealing with the point observed:

As regards the reports of debates, it is clear in their Lordships’ opinion that they can only be evidence of what was stated by the speakers in the Legislative Assembly, and are not evidence of any fact contained in the speeches.

42. I do not see in what way that case sup. ports the contention of the learned Advocate. General that the answers given by the Home Minister are inadmissible. Those answers were given in reply to written and supple, mentary questions and were given by the Home Minister on behalf of the Government. The answers relate to facts and not to opinion, and those facts directly relate to the question as to whether any person or the authority designated by Rule 26 was at all satisfied before making the orders of detention under Rule 26. The Crown does not say that the answers of the Home Minister have not been correctly set out in the annexure to Dr. Nalinaksha’s affidavit, My learned brother Sen J. has dealt with the affidavit of Dr. Nalinaksha Sanyal and of Mr. Porter in detail. For the reasons given by him, I agree with his conclusions. But for the purpose of considering the questions of law that have been raised by the learned Advocate-General on the basis of Section 49 and Section 59(3), Government of India Act, I will assume that in five cases the Home Minister, and in three cases Mr. Porter, who was then the Additional Secretary in the Home Department of the Government of Bengal, were satisfied as to the necessity of detaining the persons under Rule 26. Mr. Porter’s affidavit, taken with the answers of the Home Minister as set out in Dr. Nalinaksha’s affidavit, may suggest that the case of Sasanka Sekhar Sanyal was the only case that was considered by the Governor himself.

43. It is admitted by the learned Advocate-General that, except for the area covered by the District of Chittagong, the Provincial s Government has not delegated its powers and duties by orders made under Sub-section (5) of Section 2, Defence of India Act, to any authority or person. The learned Advocate-General further admits that none of the cases which we have before us relate to the Chittagong area. The position taken up by him for raising the points of law is that the orders of detention must be taken to be orders made by the Provincial Government itself, though none of the cases (except one) had been brought up or considered by the Governor himself. He says that if either the Home Minister or the Secretary or the Additional a Secretary in the Home Department of the Government of Bengal was satisfied as to the necessity of detaining these persons and passed orders for detention, that was sufficient, as it must be taken, by reason of the provisions of Section 49 and also by reason of the general rules of business framed under Section 59(3), Government of India Act, that the Provincial Government after being satisfied had made the orders for detention, for the reason that the Provincial Government functions through Ministers and Secretaries. On a careful consideration of the matter, I cannot accept his contentions.

44. Rule 26, Defence of India Rules, requires the Provincial Government to make the order for detention on it being satisfied that the detention of a particular person is necessary. That power and duty can be delegated by the Provincial Government to any other authority or officer not subordinate to the Central Government by making an order under Section 2(5), Defence of India Act. The word, Provincial Government has been de. fined in Section 3, Clause 43(a), General Clauses Act, (10 of 1897). It means the Governor acting or not acting in his discretion, or exercising or not exercising his individual judgment, according to the provisions made in the Government of India Act, 1935. The matter of detention in terms of Rule 26, Defence of India Rules, comes within the special responsibility of the Governor as mentioned in Section 52(1), Clause (a), Government of India Act. The Governor is, therefore, required to exercise his individual judgment. The Ministers can tender their advice to him but he is not bound to accept their advice. In this view of the matter, the Governor must act him-self, unless he had delegated his power and duty to another by an order made under Section 2(5), Defence of India Act. In these circumstances, and in the absence of delegation by an order passed by him under the last-mentioned section, I do not see how Section 49, Government of India Act, or the general rules of business made under Section 59(3), Government of India Act, could be invoked to sustain an order under Rule 26 made either by the Home Minister or a Secretary or Additional Secretary to the Government of Bengal, when the Governor himself was not satisfied, but either the Home Minister or the Secretary or the Additional Secretary was, and they made the orders in the name of the Governor. In any view, a minister cannot be regarded as an officer subordinate to the Governor : Emperor v. Hemendra Prosad Moreover, section 49 says that the executive authority of a province shall be exercised on His Majesty’s behalf by the Governor either directly or through officers subordinate to him, but Sub-section (2) of Section 49 limits the exercise of the executive authority conferred by Sub-section (1) on the Governor to matters which could be dealt by the Provincial Legislature only in the absence of any other provision in the Government of India Act, and so far as this matter is concerned, there is no other provision. The Defence of India Act could not have been enacted by the Provincial Legislature because, as I have held already, that enactment deals exclusively with mat-ters falling within List I.

45. By the general rules of business, the subject of “public order” has been assigned to the Home Department of the Bengal Government which is in charge of the Home Minister. The general rules of business framed under Section 59(3), Government of India Act, authorise the Ministers to regulate the business of their departments by standing orders. Such standing orders may provide that in cases of extreme urgency the Secretary can make orders without reference to the Minister concerned, but all such cases will have to be brought to the notice of the Minister at the earliest opportunity. The Home Minister had issued a general standing order in terms of this general rule. But standing orders cannot, in my judgment, authorise the Secretary, even in eases of urgency, to deal himself with a case of detention under Rule 26. The matter being within the special responsibility of the Governor, the Governor alone (in the absence of an order made under Section 2(5), Defence of India Act) has to make an order after he is satisfied about the necessity of the detention of that particular person. The Home Minister cannot pass such an order on his satisfaction. If the Governor does not wish to do so for any reason, he will have to act in accordance with Section 2(5), Defence of India Act. The Secretary or the Additional Secretary cannot also deal with the matter of detention under Rule 26 on his own satisfaction as to the necessity of detention in the absence of an order by the Provincial Government (which means the Governor) made in terms of that sub-section. So the standing order of the Home Minister which authorises the Secretary to pass orders in urgent oases without reference to him cannot be of any avail, for, that standing order governs only such orders which the Minister could himself have made. The above reasons equally apply to the cases where the Additional Secretary, Mr. Porter, made orders for detention on his own satisfaction on Bejoy Singh Nahar, Shibnath Banerjee and Nanigopal Mozumdar; for the standing order of the Minister quoted in para. 8 of Mr. Porter’s affidavit could not in law confer a power on the Secretary which the Minister himself did not possess. For the reasons given under this heading, I also hold that the nine persons before us have been, illegally detained. For the reasons I have given in discussing, the matter under headings Nos. (3), (8) and (10), I hold that the detention of all the petitioners before us is illegal and my order is that all of them be forthwith set free.

Khundkar, J.

46. I have had the advantage of reading the judgment just delivered by my learned brother Mitter J., and I agree that the following points enumerated in his judgment should be negatived : (1) That the whole of Section 2, Defence of India Act, both in its original and amended forms, is ultra vires of the Indian Legislature. (2) That the portion of Clause (x) of Section 2(2) of the said Act, which has been added by the amendment made by the Ordinance is ultra vires of the Indian Legislature. The corresponding portions of Rule 26, Defence of India Rules, are bad and consequently the orders of detention in the cases we have before us are bad. (4) That it is only the Central Indian Legislature that has the power to repeal or amend an Act of the Central Indian Legislature passed under the provisions of Section 102, Government of India Act. (5) That the Governor-General has no power to legislate by such an Ordinance on any Bubject enumerated in List II of Schedule 7, Government of India Act, 1985. (6) That in any event the Governor-General has no power to give retrospective operation to such an Ordinance. (7) That, in any event, Ordinance 14 of 1943 cannot affect proceedings which were pending on the date of its promulgation. (9) That Rule 26, Defence of India Rules, had no existence in the eye of the law on 29th September 1939 and so does not exist even now either in its original or amended form.

47. I agree with the conclusions reached by my learned brother upon these points, and with the reasons upon which those conclusions are based. It is therefore not necessary for me to add anything to what is contained in his judgment regarding these points. As I am constrained to disagree regarding the remaining points dealt with in the judgment just delivered, I give below my reasons for so doing. The points upon which I disagree are the points stated in my learned brother’s judgment as points (8), (8) and (10).

48. Point No. (3). – The Governor-General has no power to repeal or amend directly any Act of the Federal Legislature by an Ordinance made and promulgated under Section 72 of Schedule 9, Government of India Act, 1935.

49. The argument in support of this proposition falls upon an analysis into compartments which I shall indicate by the letters A, B, c and D.

(A). An Ordinance under Section 72 of Schedule 9 being of limited duration, cannot amend an Act of the Indian Legislature which is a permanent enactment. This point was not very seriously argued and I can see no substance in it. It is not disputed that a provision of an Act of the Indian Legislature may be suspended for a limited period. Section 2 of Ordinance 14 of 1943 substitutes a new-clause for Clause (x) of Section 2 (2), Defence of India Act, 1939. Substitution means no more than this, that an existing provision is removed, and a new provision is enacted in its place. This surely can be done for a limited period. If an Ordinance under Section 72 in Schedule 9 is otherwise valid, I can see no reason why it should not effect such a substitution.

(B) Section 72 expressly says that an Ordinance “may be controlled or superseded” by an Act of the Indian Legislature. If, therefore, the converse was also intended namely, that an Act of the Indian Legislature could be controlled or superseded by an Ordinance under Section 72, that section would have said so.

50. I do not think it can be held that, because it is provided that an Ordinance may be controlled or superseded by an Act of the Legislature, this implies that an Act cannot be controlled or superseded by an Ordinance. No such inference can be drawn from the words quoted when the necessity for their presence in the section is properly understood. The section first says that the Governor-General may, in cases of emergency, make Ordinances for peace and good government for the whole or any part of British India, and that such Ordinances shall have the like force of law as an Act of the Indian Legislature. If the section had stopped there, it might have been thought that, by reason of the emergent nature of an Ordinance, the paramountcy of the objects for which it is made, viz., peace and good government, and its unlimited territorial field, an Ordinance might well transcend all the limitations 1 imposed by the Government of India Act, 1985, on the powers of the Indian Legislature, as for instance, those contained in Section 110 of the Act. Hence, it was necessary to add the following words:

But the power of making Ordinances under this section is subject to the like restrictions as the powers of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature.

51. For the same reason, it might also have been thought that once an Ordinance was made and promulgated, it could not be touched by the Indian Legislature. Therefore, it was further necessary to make it clear that, should the Indian Legislature wish, during the continuance of an Ordinance, to modify or replace it, there was no bar in limine to its doing so. Whether the Governor-General could, on consideration, permit it to do so was another matter, and that is dealt with in Section 108(1)(b) of the Act.

(c) One must accept as a principle, the doctrine that, when one legislative authority which is representative and democratic in form has expressed its will in an enactment, that will may not be stultified by introducing into the enactment an expression of the will of another legislative authority which consists of one individual. The individual here is the Governor-General who is the supreme head of the executive, and who must necessarily be constantly influenced by considerations of executive expediency. To permit the Governor-General to vary, by direct alteration, an enactment which expresses the will of the Indian Legislature of which the Governor-General himself constitutes only one element, would be illogical and opposed to the theory of democratic government. The absence of any such intention on the part of Parliament, when it enacted the Government of India Act, must therefore be assumed until the contrary appears in express words. If the Governor-General desired to amend an Act of the Indian Legislature it would have been both appropriate and permissible for him to do so by a Governor. General’s Act under the provisions of Section 44 or S.67B in Schedule 9. Wherever Parliament intended to give the power to amend an Act of the Legislature otherwise than by an Act of the Legislature it has manifested that intention in express words. This can be seen in Sections 92, 95(8) and 96 of the Act. I shall deal with these sections at once. They are as follows:

Section 92 (1). The executive authority of a Province extends to excluded and partially excluded areas therein, but notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.

(2) The Governor may make regulations for the peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature or” any existing Indian law, which is for the time being applicable to the area in question.

Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect, and the provisions of this part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.

(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion.

Section 95(3). The Governor-General may in his discretion make regulations for the peace and good government of British Baluchistan and any regulations so made may repeal or amend any Act of the Federal Legislature or any existing Indian law which is for the time being applicable to the Province and, when promulgated by the Governor-General, shall have the same force and effect as an Act of the Federal Legislature which applies to the Province.

The provisions of Part II of this Act relating to the power of “His Majesty to disallow Acts shall apply in relation to any such regulations as they apply in relation to Acts of the Federal Legislature assented to by the Governor-General.

Section 96. The provisions of Sub-section (3) of the last preceding section shall apply in relation to the Andaman and Nicobar Islands as they apply in relation to British Baluchistan.

52. The underlined words (here italicized) in the sections above set out show that in each of these sections there are express words giving the authority which is to make Regulations the power to amend an Act of the Legislature by a Regulation. Let me take these sections one by one. In Section 92(2) the underlined words (here italicized) are seen to be necessary, because in this section it is not indicated that any Regulation made thereunder shall have the same force and effect as an Act of the Provincial Legislature. As regards Section 95, the effect of Sub-section (2) of that section is that an Act of the Federal Legislature, after it has been made in the usual way, for territory outside British Baluchistan, may, so to speak, be borrowed and then applied to British Baluchistan. Acts of the Federal Legislature suffer from this infirmity, that they cannot be made directly and solely for British Baluchistan. An Act, the only purpose of which is to amend an Act of the Federal Legislature which already applies to British Baluchistan, cannot be made by the Federal Legislature. When Sub-section (3), therefore, goes on to say that a Regulation made by the Governor-General “shall have the same force and effect as an Act of the Federal Legislature which applies to the Province,” the same infirmity would attach to the Regulation as to the Act, that is to say, a Regulation could not be made for the purpose only of amending an Act of the Federal Legislature which already has force in the Province. It was to avoid such a result, and to make it clear that the Governor General could make a Regulation for the purpose of amending an Act of the Federal Legislature which had been extended to British Baluchistan, that the words under, lined (here italicized) were necessary.

53. But it is said that Section 96 stands in the way of such an explanation. By that section the provisions of Section 95(8) are made to apply in relation to the Andaman and Nicobar Islands. These territories constitute, by reason of Section 91(1), a Chief Commissioners Province for which the Federal Legislature has power to legislate directly (see Section 100(4)). As Section 95(3) applies to this Province, a Regulation made by the Governor-General, having as it does “the same force and effect as an Act of the Federal Legislature,” would be capable of amending an Act of the Federal Legislature even without the underlined (here italicized) words in Section 95(8). This is undoubtedly so, but I think it is legitimate to consider these words in Section 95(3) as they apply to the Andaman and Nicobar Islands to be merely words of abundant caution. Such a conclusion would be consistent with the meanings of “Regulation” and “rule” contained in Clauses (46) and (47) of Section 3, General Clauses Act (India Act 10 of 1897), which clauses have to be read together. They are in these terms:

Clause (46). – ‘Regulation’ shall mean a Regulation made by the Central Government under the Government of India Act, 1915, or the Government of India Act, or under Section 95 or Section 96, Government of India Act, 1935.

Clause (47).- ‘Rule’ shall mean a rule made in exercise of a power conferred by any enactment, and shall include a Regulation made as a rule under any enactment.

54. From Clause (47) it is clear that the term “Regulation” includes Regulations under Sections 95 and 96, Government of India Act, 1935. From Clause (47) it follows that a Regulation which is made as a rule under an enactment may nevertheless be considered to be a rule. I do not think it can be disputed that a rule made under any enactment cannot be capable of amending a statute unless a power of amendment is given by express words to the rule-making authority. In cases where a doubt might arise as to whether a Regulation is or is not a rule under an enactment, the power to amend an Act of the Legislature by a Regulation should, if it is given at all, be expressly conferred. It cannot be said that prudent drafting does not demand such a course.

55. I am of the opinion that the conclusion just stated is in keeping with Section 311(6), Government of India Act, 1935, where any reference to Acts of the Federal Legislature or Provincial Legislature is made to include a reference to Ordinances but not to Regulations. Finally, as regards this point it should be borne in mind that the Government of India Act, 1985* being an Act of Parliament, the word ‘Regulation,’ unless otherwise explained in the Act, must be understood in the sense in which that word is used in English Constitutional Practice. Whatever may have been the legislative evolution from a historical point of view of the word ‘Regulation’ Ordinances are emanations of the Royal Prerogative to make law. Historically, Parliament encroached by gradual stages upon the field over which that prerogative right was once exercised, but it did not extinguish the right altogether. In theory, at least, it still exists and in a limited and perhaps modified form it finds expression in that class of legislation known today as Ordinances. I would here refer to some passages in Anson’s Law and Custom of the Constitution, Edn. 4. Upon the subject of “The Claims of the Crown to Legislate,” at pages 248 to 245 of vol. I, it is stated:

The concurrent legislative power of the Crown-in-Council was a survival of the pre-Parliamentary Constitution and is manifested in the distinction, so difficult to be drawn by the student of constitutional history, between Statute and Ordinances.

The recognised differences between these two modes of legislation are described by Dr. Stubbs as being differences partly of form, partly of character. The ordinance is put forth in Letters Patent or Charter and is not engrossed in the Statute Boll; it is an act of the King, or of the King-in-Council; it is temporary and is revocable by the King or the King-in-Council. The statute is the act of the Crown, Lords and Commons; it is engrossed on the Statute Boll; it is meant to be a permanent addition to the law of the land; it can only be revoked by the same body that made it in the same form.

The ordinance in fact seems to follow the form of legislation which was in use when the Crown-in-Council discharged both legislative and executive functions. Its existence indicates the difficulty which is noticeable for some time after parliaments were at, work in distinguishing the functions of the Crown in parliament from those of the Crown-in-Council, and of the ‘Magnates’ as Councillors of the Crown from the same persons as Lords of Parliament….

As the distinction between statute and ordinance became manifest, the Crown came to assert definitely as a part of the prerogative the right to legislate independently of parliament. The Royal Proclamations of the 16th and 17th Centuries formed the battle ground of the old controversy which is fought under changed names, and the right of the Crown to tax or to legislate without parliamentary sanction is asserted and disputed in one form or another from the Ordinance of the Staple to the Bill of Rights.

56. Upon the subject of the Royal Proclamations, Anson at pages 320-321 of the same volume says:

The assumption by the Crown of independent legislative powers found some warrant in the identity, in early times, of the Executive and the Legislature and in the very gradual definition of the functions of the King-in-Council and the King-in-Parliament. Legislation by way of Ordinance continued for some time after Parliament had acquired legislative power, and often with the sanction and approval of Parliament. I have spoken of the legislative character of the ordinance as distinguished from statute, and of the jealousy with which this form of legislation came to be regarded. This quickened as the confusion between the Executive and the Legislature cleared away and as Parliament, and especially the Commons, realised the importance of insisting upon the observance of the terms of the Statute of Edward II whereby the consent of the Prelates, Earls, Barons and the Commonalty of the Realm was requried to matters which were to be established for the estate of the King, the Realm and the people.

Legislation by Ordinance which had been denounced at the end of the 14th Century disappeared during the 15th but revived in the 16th in the form of legislation by Royal Proclamation.

57. In the chapter on “The Legislative Power of the Executive” in volume n, Part l, Anson deals at pages 250 to 252 with forms and types of delegated legislation. A few passages may be cited.

All delegated legislation is characterised by its derivation from Parliamentary authority, and by its subjection, therefore, to scrutiny by the Court to determine its validity. However wide the delegation, even if the legislation passed under it is to have effect as if enacted in the Act delegating power, the Court must examine its conformity with the authority given, whereas an Act is exempt from question…. The forms in which the power is exercised are many and various. (1) The most formal type is the Order-in-Council under statute, which is adopted for the more elaborate and serious form of regulation ; thus we have the Aliens’ Order-in-Council and the Air Navigation Orders. These, of course, are prepared by the Home Office and the Air Ministry on whose responsibility they are formally enacted by the King-in-Council. (2) Departmental regulations take various names and forms. They are regulations such as those made under the Defence of the Realm Act or under the Factory and Workshop Act, 1901; rules such as rules of the Court or rules under the Poor Law Act, 1930, which authorises the making of regulations, rules or orders;…

58. Enough has been said, I think, to show that whereas ordinances are the outcome of a prerogative right to make law which, in constitutional theory is on the same footing as the power of Parliament to make laws, regulations are not so regarded. Regulations are laws, but they rest on a different foundation, and are to be looked at as rules made by a subordinate authority in the exercise of a power which it has received by delegation from a supreme legislative authority. In India the position of the Governor-General as the supreme head of the executive and as the representative of the Crown is, vis-a-vis the Indian Legislature, analogous to the relation in which the King stands to Parliament. If this view is correct, then the contention which is based on the language of Sections 92, 95(3) and 96 entirely disappears.

59. As regards Section 44 and Section 67B in Schedule 9 Government of India Act, 1935, which was referred to in support of this branch of the argument, all that it is necessary to say is that, although Governor-General’s Acts under those sections can undoubtedly amend Acts of the Indian Legislature, the procedure involved would necessarily take time. An Ordinance under Section 72 is intended to meet cases of emergency, and, in an emergency, prompt and speedy amendment of an existing Act may be imperative. The making and promulgation of an Ordinance would certainly avoid the delays incidental to the passing of an Act under Section 44 and Section 67B in Schedule 9. Section 72 gives power to legislate in an emergency for peace and good government. Such legislation might be totally ineffective unless it was capable of nullifying enactments of the Legislature which had become, by reason of the emergency, a hindrance to peace and good government. It is clear from other sections of the Act that Parliament has considered it desirable to give the Governor-General power, when the need arises to override or stultify the wishes of the Legislature. In this connection, reference may be made to the following sections : Section 44, Section 108 and Section 67 (2A) and Section 67B in Schedule 9.

60. Incidentally, in connexion with Section 108, it may here be noted that “Ordinance” in clause (b) of Sub-section (1) now comes within the meaning of “Ordinance” as used in Section 72 in Schedule 9 by reason of the India and Burma (Emergency Provisions) Act, 1940, Section l, Sub-section (4) of which provides that the functions of the Governor. General under Section 1 of that Act shall be deemed for the purposes of the Government of India Act, 1935, I to be included among the functions which he is, by or under that Act required to exercise in his discretion. When we proceed to examine Section 72 in Schedule 9, we cannot, therefore, approach that section with a mind coloured by the assumption that Parliament would, on principles of logic or on principles of democracy, be averse to the notion of allowing the Governor-General to interfere with the wishes of the Legislature and that therefore the words “the like force of law as an Act passed by the Indian Legislature” are not sufficient to import a power to amend an Act of the Legislature but further words ex abundanti cautela must be found in the section before the power to amend an Act of the Legislature can be read into it. Freed from such an assumption, what does the argument amount to? What is to prevent the Governor-General from expressing his will in an Ordinance and “putting the Ordinance into an Act so as to make his will appear as the will of the Indian Legislature?” That is the language in which this argument was at one stage expressed. If the principle appealed to is one based on logic or on any theory of democracy, that principle is seen to fail, because it is not carried out in the sections of the Government of India Act, 1935, just referred to. On what foundation then does the proposition above quoted rest? I can see no foundation for it other, than some vague idea of harmony borrowed from the realm of aesthetics. But we are not concerned with a painting in oils which may not be retouched with water colours. What we are concerned with is the question whether the language of Section 72 indicates with sufficient clarity that an Ordinance may amend an Act of the Indian Legislature.

61. There is no judicial authority at all for the proposition that an Act of the Indian Legislature may not be amended by an Ordinance passed by the Governor-General under Section 72 in Schedule 9. In my opinion, there are two decisions which have an opposite import. In Des Raj v. Emperor (’30) 17 A.I.R. 1930 Lah. 781 it was held that so far as an amendment of the Code of Criminal Procedure was concerned, there was nothing to prevent either the Indian Legislature, the Governor-General in Council or Governor-General acting under the powers conferred on it or him by the Government of India Act, from bringing about such an amendment. In Bhagat Singh v. Emperor , which was a decision of the Judicial Committee of the Privy Council, their Lordships dealt with the contention that there was a repugnancy between the Ordinance which they were there considering and the constitution of the High Court of Lahore, and that the terms of Section 84(a), Government of India Act, as it then stood, made void the Ordinance because of such repugnancy. In this connexion, their Lordships said:

But as soon as it is admitted, as counsel candidly did admit, that an Act might be passed by the Indian Legislature under the powers of Section 65 and in the same terms as the Ordinance, the point as to repugnancy vanishes.

62. In dealing with the matter generally, their Lordships said:

The power given by Section 72 is an absolute power without any limits prescribed, except only that it cannot do what the Indian Legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it.

63. In my opinion, the words quoted above are sufficient to show that the Privy Council was proceeding upon the assumption that the power given to the Governor-General under Section 72, Government of India Act, which is now continued in Schedule 9 of the Act of 1935, included a power to amend an Act of the Indian Legislature.

64. It would not be incorrect to say that the Indian Legislature has, within the limitations imposed upon it by the Government of India Act, the plenary powers of a supreme Legislature, by which expression I mean to distinguish it from those law making authorities which, by virtue of delegated powers, enact what is strictly speaking subordinate legislation. This has been recognised by the Privy Council in R. v. Burah (1878) 3 A.C. 889. Were it not so, it would be unnecessary to place fetters on those powers in certain eventualities as has been done by express enactment in Sections 108 and 110, Government of India Act. It is the fettering that has had to be done by express words. Now, Parliament has, in Section 72 of Schedule 9, given the Governor-General power to legislate for peace and good government in an emergency. If the power so to legislate is to be a real power, it must be at least as effective as the power of the Indian Legislature to make law, and this result has been brought about by enacting that an Ordinance of the Governor. General under Section 72 shall have the like force of law as an Act passed by the Indian Legislature. The power to amend a law being inherent in the power to make a law, it was quite unnecessary to say in express words, either in the case of the Indian Legislature, or in the case of the Governor-General acting under Section 72 in Schedule 9, that these authorities possessed the power to amend an Act of the Indian Legislature. This becomes quite clear when one considers Section 44 and Section 67B in schedule 9. These sections give the Governor. General the power to enact Governor-General’s Acts. It has not been suggested at any stage of the elaborate argument addressed to us that such Acts would not be capable of amending an Act passed by the Indian Legislature. Yet, neither of these sections contain words expressly conferring such a power of amendment. In these sections the power has to be inferred from the words “the same force and effect as an Act,” words which convey exactly the same meaning as the words “like force” of law as an Act” in Section 72 in Schedule 9. If in Section 44 and Section 67B in Schedule 9 no further words “ex abundanti cautela” were thought to be needed, it is difficult to understand how they become necessary in Section 72 in Schedule 9. In my judgment, it is more than reasonably clear that the power to amend an Act of the Indian Legislature is there, and that if any further words were needed with reference to that power, they would be needed not to confer the power but to take it away, if indeed it was considered necessary to take it away in any circumstances. It has not been taken away either in Section 72 or anywhere else. Finally, if an Ordinance passed under Section 72 in Schedule 9 is incapable of directly amending an Act of the Indian Legislature, I cannot imagine how it comes about that Clause (6) of Section 311 makes any reference to an Act of the Indian Legislature include a reference to an Ordinance.

(D) Here there are two Legislatures both deriving their powers from the same source – Parliament, and both having jurisdiction over the same field. If one of them is in that field with an enactment, the other may make an enactment which is repugnant to the former enactment, but it cannot directly repeal or amend it. This follows from a principle enunciated by the Privy Council in Ontrio v. Attorney General for the Dominion of Canada (1896) 1896 A.C. 348.

65. My learned brother Mitter J, has given a very full account of the circumstances of that case, and I am relieved of the necessity of analysing it for the purpose of showing what the case actually decided, I think it is quite apparent from the judgment of my learned brother that the questions which the decision actually set at rest were questions which arose directly out of the construction of certain sections of the British North America Act including Sections 91, 92 and 129. The passage at p. 866 of the report, quoted by my learned brother is as follows:

It appears to their Lordships that neither the Parliament of Canada nor the provincial legislature have authority to repeal statutes which they could not directly enact.

66. But this must be read with the further observations of their Lordships at p. 367 of the report:

The Old Temperance Act of 1864 was passed for Upper Canada, or, in other words, for the province of Ontario; and its provisions, being confined to that province only, could not have been directly enacted by the Parliament of Canada. In the present case the Parliament of Canada would have no power to pass a prohibitory law for the province of Ontario; and could therefore have no authority to repeal in express terms an Act which is limited in its operation to that province. In like manner, the express repeal, in the Canada Temperance Act of 1886, of liquor prohibitions adopted by a municipality in the province of Ontario under the sanction of provincial legislation, does not appear to their Lordships to be within the authority of the Dominion Parliament.

67. In the light of this passage, the general import of the words of Lord Watson quoted by my learned brother is really no more than this, that an authority which cannot make a law of a particular kind, can have no power, unless such power is expressly given, to repeal or amend a law of that particular kind. As I have attempted to show above, the Governor-General has power under Section 72 in Schedule 9 to make by Ordinance laws of the same kind as the Indian Legislature has power to make by Acts, and an Ordinance under Section 72 is capable therefore of amending an Act of the Indian Legislature. In my judgment, the Canadian case lays down no general principle from which a contrary conclusion could be derived.

68. Point (8). Section 3 of the ordinance 14 of 1943 has no independent existence apart from Section 2 of the said Ordinance, and must stand or fall with Section 2. As I have already stated, I am satisfied that an Act of the Indian Legislature can be amended by an Ordinance under Section 72 in Schedule 9. Both Sections 2 and 3 are in the same Ordinance it is true, but if Section 2 goes I do not see why Section 3 should fail. In my opinion the words “deemed to have been made” in Section 3 of the new Ordinance have the effect of repeating what is already contained in Section 2, and again give retrospective operation to the substitution brought about by Section 2, but they do it in such a manner as to remove all doubts as to the legality of detentions heretofore made. Rule 26 of the Defence of India Rules was actually made under the original Section 2(2)(x), but may now be deemed to have been made not under d the old but under the new Section 2(2)(x). This is the first and most obvious effect of Section 3, but it has another effect also. The words “powers that might be lawfully conferred by a rule made under Section 2” make it the duty of the Court to consider whether Rule 26 was ultra vires of any portion of Section 2, Defence of India Act, and this lets in Sub-section (1) of that section. The result is that if Rule 26 is not ultra vires of Sub-section (1), it justifies the detentions made in the past although that rule is expressed to be made under Section 2(2)(x) and not under Section 2(l). In seeking to bring about this result, Section 3 is nullifying the decision of the Federal Court that Rule 26 was made under Section 2(2)(x). In view of my conclusions on the points raised in the other arguments, I do not think I need pursue this question any e further.

69. Point (10). That even if Rule 26 be intra vires, the detentions of the nine persons whose cases are before us are improper. This argument falls into two compartments which I shall distinguish by the letters A and B.

(A) The Court is precluded from enquiring into the sufficiency of the reasons which led the Provincial Government to be satisfied that the detention of these persons was necessary, with a view to preventing them from acting in a prejudicial manner but the Court is not precluded from seeing that the duty of being so satisfied has been discharged by that authority to which the duty is entrusted, and by no other.

(B) Rule 26 requires the proper authority to be satisfied that a detention is necessary before any order of detention under that Rule is made. It is open to the petitioners to show that the consideration, if any, of their eases by the authority which ordered the detention, took place, if at all, after the detention was ordered and not before.

70. At the outset of this discussion I ought to make it clear that I agree with my learned brother Mitter J. in his reading of Section 59(2), Government of India Act, and of the cases J in Eshugbayi Eleko v. Officer administering the Government of Nigeria (’31) 18 A.I.R. 1931 P.C. 248, Jitendra Nath Ghosh v. Chif Secretary to the Government of Bengal and Liversidge v. Sir Anderson (1942) 1942 A.C. 206. I also agree that the answers of the Home Minister to questions put to him during the proceedings of the Legislative Assembly afford materials which the. Court may take into consideration.

71. The argument in compartment A was developed in the following way. Rule 26 of the Defence of India Rules requires the orders of detention to be made by the Central Government, or the Provincial Government, after the Government in question is satisfied that the order of detention is necessary. We are here concerned with the Provincial Government, and if it can be shown that “Provincial Government” means the Governor personally the orders of detention are illegal, for it will be seen presently that the Governor did not himself apply his mind to the cases of these petitioners for the purpose of satisfying himself that their detention was necessary.

72. That “Provincial Government” means the Governor personally is sought to be established in the following manner : (a) Under Section 2(5), Defence of India Act, it is permissible for the Provincial Government to delegate the duty of being satisfied that detention was necessary, to any officer or authority other than an officer or authority subordinate to the Central Government, Section 2 (5) being a provision contained in a special Act (The Defence of India Act), the provisions of the Government of India Act cannot apply. Therefore “Provincial Government” in Section 2(5) and Rule 26 cannot mean the Governor acting “through officers subordinate to him,” as in Section 49, Government of India Act, 1935. If “Provincial Government” had such a meaning in the Defence of India Act, and the rules framed thereunder, then Section 5(2), Defence of India Act, would be superfluous. The duty of being satisfied that detention is necessary has not, in fact, been expressly delegated in terms of Section 2(5), either to a Minister, or to a Secretary to the Provincial Government. Therefore “Provincial Government” in Rule 26 must in 4he present case mean the Governor himself.

73. I think there are three infirmities in the argument that because Section 2(5) provides for delegation, and no delegation has been made, “Provincial Government” in Rule 26 must mean the Governor himself. Rule 26 is a rule under Clause (x) of Sub-section (2) of Section 2, and the Federal Court has so held. It is not a rule under Sub-section (1) of Section 2, which, after the enactment of specific clauses to Sub-section (2), becomes only a residuary provision. Section 2(5) does not apply at all, because it contemplates delegation of powers and duties under Sub-section (1), and not powers and duties conferred by any of the clauses of Sub-section (2). Therefore the argument that Section 2(5) would be superfluous if Section 49(1), Government of India Act, applies has no relevance. Even if it is superfluous we are not concerned with it here.

74. The second infirmity lies in the very assertion that Section 2(5) is superfluous. Section 2(5) provides for delegation by the Provincial Government. In the light of Section 49(1), Government of India Act, “Provincial Government” is seen to mean the Governor exercising the executive authority of the Province, either directly, or through officers subordinate to him. As the act of delegation under Section 2(5) could very well be by the Governor acting either directly, or through an officer subordinate to him, I fail to see how Section 2(5) becomes superfluous at all.

75. The third infirmity is that the Defence of India Act being special legislation, some meaning must be found for the words “Provincial Government” appearing in the Act, and in Rule 26, Defence of India Rules, other than the meaning which the expression bears in the Government of India Act. The doctrine generalia specialibus non derogant only applies where there is an apparent repugnancy between two Acts, or two provisions, one general and the other special. No a such repugnancy was sought to be shown between the Government of India Act and the Defence of India Act, and as “Provincial Government” in the latter Act is reconcilable with the meaning which it bears in the former Act, I fail to see how the maxim applies.

(b) The point that “Provincial Government” in Rule 26 means the Governor himself, is sought to be established also in another way. Section 49(2), Government of India Act, makes the executive authority of each Province coterminous with the field in which the Legislature of the Province has power to make laws. No Provincial Legislature had power to enact the Defence of India Act. Therefore, the executive authority of the Province did not extend to the making of orders under that Act. Section 49 (1) provides that the executive authority of the Province shall be exercised by the Governor, either directly or through officers sub. ordinate to him. It follows that valid orders under the Defence of India Act cannot be made by the Governor under Section 49, that is to say, by the Governor acting either directly or through officers subordinate to him. Therefore, for the purpose of ascertaining what is meant by “Provincial Government” in R. 26, we must go to the General Clauses Act (India Act 10 of 1897). Clause 43 (a) of Section 8 of that Act says:

‘Provincial Government’ as respects anything done or to be done after the commencement of Part 3, Government of India Act, 1935, shall mean – in a Governor’s Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment according to the provision in that behalf made by and under the said Act.

76. Now, the functions covered by Rule 26, Defence of India Rules, fall within Section 62(1)(a), Government of India Act – “the prevention of any grave menace to the peace and tranquillity of the Province,” and as such they are embraced within the Governor’s special responsibilities (Section 52(1), Government of India Act). By Section 52(3) the Governor shall in so far as his special responsibility is involved exercise his individual judgment. It is stated, and we must take it, that in matters in which the Governor is to exercise his individual judgment, the Ministers are entitled to tender advice, but the Governor is not bound to accept the same. The Governor therefore remains the only authority which can make orders under Rule 26.

77. When examined, this ingenious argument is seen to be founded upon the circumstance that the enactment of the Defence of India Act was not within the legislative competence of a Province. That is very true, but the Provincial Legislature would have power to make a law with respect to “preventive detention for reasons connected with the maintenance of public order,” which is a subject included in Item 1 of the Provincial Legislative List. In my judgment this fact is sufficient to attract Section 49 to the making of orders under Rule 26. It further seems to me that “preventive detention for reasons connected with the maintenance of public order” is a much wider expression than would be such an expression as “preventive detention for the maintenance of public order.” Reasons connected with the maintenance of public order may very well be, and in actual fact very often are, connected also with such subjects as the defence of British India, and the efficient prosecution of the war. In actual practice it is not possible to separate such reasons and to place them in mutually exclusive compartments, corresponding to these different subjects. Again, it surely cannot be said, even in the abstract, that the maintenance of public order has not the most intimate bearing upon public safety and upon the defence of British India. Therefore, in my judgment, one need not be taken further than Section 49, Government of India Act, in a quest for the meaning of “Provincial Government” as used in Rule 26, Defence of India Rules. In any event the General Clauses Act does not repel the Government of India Act, but on the contrary the former Act applies to the latter Act and must of necessity be read along with it. The present argument would seem to ignore the fact that the provisions of the General Clauses Act which apply to the Government of India Act were enacted for the purpose of explaining the latter Act and not for the purpose of explaining it away. In my judgment clause 43(a) of Section 3, General Clauses Act, is necessarily meant to be read into certain sections including Section 49 and Section 59, Government of India Act. This alternative argument also fails, and it follows that the expression “Provincial Government” in Rule 26 has no meaning unless it is read with what is contained in Section 49(1), Government of India Act.

78. Now as already seen, Section 49(1) provides that the executive authority of the province may be exercised by the Governor either directly or through officers subordinate to him. Section 59(1) and (2) provides that all executive action of the Government of a province shall be expressed to be taken in the name of the Governor, and orders and instruments made e and executed in the name of the Governor shall, if properly authenticated, not be called in question on the ground that they are not orders and instruments made or executed by the Governor. Sub-section (8) of Section 59 provides that the Governor shall make rules for the more convenient transaction of the business of the Provincial Government and for the allocation among ministers of the said business which by reason of the words “not business with respect to which the Governor is…required to act in his discretion” includes all matters falling within the exercise of the Governor’s individual judgment. The subject-matter of Sub-section (3) being any business of the Provincial Government which is comprised within the functions exercisable by the Governor in his individual judgment, it is wide enough to embrace the matters enumerated in Section 52, and so it includes the making of orders under Rule 26. It follows therefore that such orders are covered by the expression “executive action of the Government” in Sub-section (1) of Section 59. But as executive action here must mean action taken in the exercise of “the executive authority of a province” within the meaning of Section 49(1), anything done after the allocation of business 3 treated of in Section 59 (3) must of necessity be controlled by the provisions of Section 49(1). It therefore follows that although a particular duty may have been allocated to a minister, the Governor may nevertheless exercise his functions in relation thereto through any officer subordinate to himself. In my judgment, if real effect is to be given to the intention which inspires the scheme of Chap. 2, Part 3, Government of India Act, the expression “officer subordinate to the Governor” in Section 49(1) must include a minister when that minister is transacting business allocated to him under Section 59(3). The ministers are the J Governor’s ministers, as is apparent from the language of Section 51(1). If I may revert again to constitutional analogy, the notion which is sought to be carried out in the Government of India Act is that of the Ministers of the Crown in England who when discharging their executive duties, act as servants of the Crown. In my judgment, a minister when discharging executive duties, acts in a different capacity from that which he occupies as an adviser of the Governor or a spokesman for the Government. Whether a minister may legally delegate executive business to a secretary is a question which, in my opinion, does not arise for consideration in the present case. Here it is conceded that under Rules of Business which had in fact been made under Section 59(3), the duty of passing orders under Rule 26, Defence of India Rules, had devolved upon the minister, and this brings us to compartment E of the argument which was developed to support point 10.

79. It was contended that so far as the petitioners are concerned, orders for their detention under Rule 26 were passed as a matter of routine, and that prior to the passing of such orders no authority properly acting as or for the Provincial Government, had applied its mind at all to the cases of these petitioners for the purpose of being satisfied that their detention was necessary. The principal foundation for this contention is contained in questions put to the Home Minister by Dr. Nalinakshya Sanyal in the course of proceedings in the Legislative Assembly on 19th February 1943, and in the Home Minister’s answers to those questions. The material questions and answers are as follows:

Dr. Nalinakshya Sanyal. My question is this : “I find from the list that more than 1200 persons have been kept under detention under the Defence of India Rule 26, to the end of December 1942. There may have been some releases later on. Now, Sir, the Defence of India Rules provide that in the case of subsequent detention under Rule 26 the sanction of the Local Government will have to be taken, and in the ease of R. 129 certain authority has been vested in the local officers. “We presume that the sanction of the Local Government in this case means the approval of the Hon’ble Minister in charge. So my question is whether in the case of these 1210 persons the approval of the Minister in charge has been taken or not?”

80. The Hon’ble Mr. A.K. Fazlul Huq : “It is not possible for me to say that. All that I can say is this that cases are put up, and as a matter of routine the order under Rule 129 is converted into one under Rule 26, unless there are special reasons why a recommendation should be made for their release. But as regards these 1200 persons as to how many cases were held back and how many were put up I have no idea.”

81. Dr. Nalinakshya Sanyal : “May I inquire if the detention of persons under Rule 26 whose cases have not been definitely referred to the Local Government have been illegally detained?”

82. The Hon’ble Mr. A.K. Fazlul Huq: “Cases may have occurred in which persons arrested under Rule 129 have been detained although no order has been passed.”

83. In reply to the contention raised in this connexion, the learned Advocate-General has put in on behalf of the Crown, an affidavit affirmed by Mr. Porter an Additional Secretary to the Government of Bengal in the Home Department. I shall consider Mr. Porter’s affidavit presently, but I shall first examine the contention based on the questions and answers above set out and I shall take that contention at its highest. It has been submitted on behalf of the petitioners that, after they were arrested and detained under Rule 129, their detention was converted as a matter of routine into the detention contemplated by R. 26, and that if their cases were considered at all, it was after the point of time at which orders against them under Rule 26 can be deemed to have been passed. The contention will, I think, in fact fail on its merits if the answers of the Home Minister are read along with the averments in Mr. Porter’s affidavit, but as I have already indicated this is an aspect of the question which I will consider a little later. Here I will assume that the Home Minister had directed that when any person was arrested and detained under R. 129, there was to be an automatic conversion of that detention into a detention under Rule 26. I will also assume that the Home Minister did not himself consider the cases of these petitioners. Now what would the position be, looked at from a legal or constitutional point of view? To the Home Minister had been allocated the duty of considering, and passing orders in, the cases of all persons who had been arrested and detained under R. 129. He was, according to the contention of the petitioners, not carrying out this duty. He was not attending to these eases at all. Would it for that reason become the duty of the Governor personally to discharge this duty? Or could he, as the person in whom the executive authority of the Province was vested, discharge it through some other person who happened to be an officer subordinate to him? If the answer to this question is that when a Minister fails for any reason to discharge his executive functions, those functions cannot be legally discharged except by the Governor acting directly and personally, the business of executive Government would soon come to a standstill. If the Governor must perform every executive act which a Minister should but does not perform what is to happen when, in the event of a failure of the constitutional machinery, the Governor has to issue a proclamation under section 93, Government of India Act. Would the Governor then have to perform all the executive functions of Government himself? But it may be said in answer to this, that when the constitutional machinery is functioning, the Governor would be acting in the exercise of his individual judgment under Section 52(3) in regard to the making of orders under Rule 26, because such orders fall under Section 52(1)(a), whereas when a proclamation has been issued under Section 93, the Governor would be making orders under Rule 26 in the exercise of his discretion (see Section 93(1)(a)). This is realty no answer because Section 49 covers both classes of functions.

84. In the present case, the Minister having, upon the assumption now made, failed to carry out his duties in regard to orders under Rule 26, those duties devolved in fact upon the Secretary. Minister or no Minister, the Secretary was an officer subordinate to the Governor, and so he remained for the whole time during which the cases of persons arrested and detained under Rule 129, who were awaiting further orders fell to be handled by him. As I understand it, the position was this: The Minister had a right to offer advice to the Governor in connection with these matters, but the Governor was not bound to accept that advice. This is what is meant when it is said that the Governor is exercising his individual judgment as to the action to be taken. Whether the Minister offered advice in any of these cases we do not know. But if the Secretary dealt with, and disposed of cases which properly came within the scope of his duties as the Secretary of a particular Department, it could with every justification be said that the executive authority of the Province had been exercised in regard to those cases by the Governor through an officer subordinate to him. The point which emerges is, that where there is a Minister; and where business of executive Government has been allocated to him under rules made under Section 59(3), that business may legally be transacted either by the Minister, or failing the Minister, by some other person provided the latter is an officer subordinate to the Governor. Prom the affidavit of Mr. Porter I am satisfied that orders under Rule 26 of the Defence of India Rules were passed in all these cases either by the Governor or, by the Home Minister, or by Mr. Porter. The order is in each case expressed to be the order of the Governor and is duly authenticated, and it is not open to any one to say that it is not the order of the Governor, for that question is concluded by Section 59(2). One question only therefore remains, and it follows from what I have stated above, that the question is just this “has it been sufficiently established that before orders under Rule 26 were passed either the Governor, or the Home Minister or the Secretary felt satisfied that detention was necessary within the intendment of Rule 26?”

85. On this question the affidavit of Mr. Porter contains statements which are not denied and they are as follows : Debabrata Roy – Orders under Rule 26 were passed after the Home Minister or at least Mr. Porter was satisfied. Pratul Chandra Ganguly – Orders under Rule 26 were passed after the Home Minister or at least Mr. Porter was satisfied. Birendra Ganguly – Orders under Rule 26 were passed after Mr. Porter was satisfied. Narendra Nath Sen Gupta – Orders under Rule 26 were passed after the Home Minister was satisfied. Niharendu Dutta Majumdar- Orders under Rule 26 were passed after the Governor or the Minister or both were satisfied. Sasanka Sekhar Sanyal-Orders under Rule 26 were passed after at least Mr. Porter was satisfied. Bijoy Singh Nahar – Orders under Rule 26 were passed after Mr. Porter was satisfied. Sibnath Banerji – Orders under Rule 26 were passed after Mr. Porter was satisfied. Nani Gopal Majumdar -Orders under Rule 26 were passed after Mr. Porter was satisfied.

86. This ground also fails, but I have one observation to add. The conclusion which I have expressed above is, as already indicated, based upon my reading of Sections 49, 52 and 59, Government of India Act, as well as Section 2(5), Defence of India Act, and in the application of that reading to the averments contained in Mr. Porter’s affidavit. As against the conclusion to which I have been so led, there is an argument which I ought to deal with, and which is founded on the provisions of Section 59(3), (4) and (5). Sub-section (3) provides that the Governor shall make rules for the more convenient transaction of the business of the Provincial Government. Sub-section (4) enacts that those rules shall include provisions requiring a Minister to bring to the notice of the Governor, and the Secretary to bring to the notice of the Minister and of the Governor, any matter under consideration by him which involves or is likely to involve, any special responsibility of the Governor. Sub-section (5) makes it clear that in the discharge of his functions under Sub-section (4) the Governor shall act in his discretion after consultation with his Ministers. It may be contended that, as the duty of considering cases in which orders might have to be passed under Rule 26, Defence of India Rules, was a matter within the special responsibility of the Governor under Section 52 (l), both Minister and Secretary are by the operation of Sub-sections (4) and (5) of Section 59, debarred from dealing with those cases, and that it becomes the duty of the Governor to apply his own mind to them.

87. I do not think this follows from the provisions just referred to. Sub-section (4) certainly does require the framing of a rule that matters involving any special responsibility of the Governor are to be brought to his notice; but if no such rule has in fact been framed, or if the rule having been made, the matters to which it applies are not brought to the Governor’s notice, would it follow that action taken by the Minister or the Secretary in relation to such a matter would be invalid? I think not, for such a view would involve us in affirming that Sub-sections (4) and (5) of Section 59 take all matters embraced in the Governor’s special responsibilities out of the general operation of Section 49(1) altogether. No such intention is to be gathered either from Section 52, which treats of the matters embraced in the Governor’s special responsibilities, or from Section 49 which embodies the general rule of administration with regard to all executive authority in the Province which is, in its entirety, deemed to be vested in the Governor. In my judgment Section M9 controls Section 59, and the provisions of the latter section create no exception to the, rule of universality embodied in Section 49(1). The direction in Sub-section (5) of Section 59 that in the discharge of his functions under Sub-sections(2), (3) and (4) of this section the Governor shall act in his discretion after consultation with his Ministers, relates only to the Governor’s rulemaking function under those sub-sections, and cannot have reference to the exercise by him of any of the executive functions enumerated in Section 52(1) because in the exercise of such functions, the Governor is bound under Sub-section (3) of Section 52 to exercise his individual judgment and not his discretion. The result is, that in my judgment, all these rules should be discharged.

Sen, J.

88. I agree with my learned brother Mitter J. that these rules should be made absolute and the petitioners set at liberty forthwith. The points raised have been very fully discussed by my learned brothers and I concur in the conclusions of my learned brother Mitter J. on all points except one with which I shall deal later. The questions involved are of such importance that even at the risk of repeating what has already been said I feel that I should record separately my conclusions and the reasons therefor regarding some of the important matters canvassed before us. Before stating the arguments of the parties it will be necessary to go into the history of the rule under which the petitioners have been detained. The rule is Rule 26. made by the Central Government in the purported exercise of powers presumed to have been granted to it by the Defence of India Act of 1939. Before the Defence of India Act of 1939 was enacted there existed the Defence of India Ordinance 5 of 1939. Certain rulemaking powers were given to Central Government by the Ordinance. The Central Government made a rule, being Rule 26 in the exercise of powers presumed to have been given to it by the Ordinance. That rule may for the purposes of these cases be said to be in the same terms as the present one. The Ordinance was repealed and re-enacted by the Defence of India Act, 1989, which is matarially in the same terms as the Ordinance and Rule 26 was sought to be continued in force by Section 21 of the Act which is in these terms:

The Defence of India Ordinance 1939, is hereby repealed; and any rules made, anything done and any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made, done or taken in exercise of powers conferred by or under this Act as if this Act had commenced on the 3rd day of September 1939.

89. The rule underwent a slight modification which is not material and it now stands thus:

26. (1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty’s relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war it is necessary so to do, may make an order; (a)…. (b) directing that he be detained.

90. The petitioners have been detained under this rule. After their detention the validity of the rule was called in question in the Bombay High Court in Keshab Talpade’s case. That Court held that it was valid. On appeal the Federal Court has held that the rule was made in the exercise of powers presumed to have been granted to the Central Government by Section 2(2)(x), Defence of India Act, and that it is ultra vires of that section as the section did not grant the Central Government the power or authority to make such a rule. Thereafter these petitioners applied before me under Section 491, Criminal P.C. for their release on the ground that their detention was not sanctioned by law. I issued rules upon the Provincial Government to show cause why the petitioners should not be released. After the rules had been issued and pending the decision thereon the Governor. General passed an ordinance being ordinance 14 of 1943. This ordinance consists of only three sections. By Section 2, Section 2(2)(x), Defence of India Act, is repealed and a new Section 2(2)(x) is substituted in its place. The new section purports to give wider rule-making powers to the Central Government, and it is given retrospective operation. By this method Rule 26 is sought to be validated. This is the intended effect of Section 2 of the ordinance. Then, there is the other section viz., Section 3 which enacts that no detention heretofore made under Rule 26 shall be deemed to be invalid or be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act.

91. There is no room for any controversy that, if the present Ordinance 14 of 1943 have not been promulgated, in view of the decision of the Federal Court, the detention of the petitioners must be held to be illegal. The question for decision is whether this ordinance has the effect of validating the detention. The arguments urged on behalf of the petitioners may be conveniently grouped under four heads thus : (1) The present Ordinance is ultra vires the power of the Governor-General and it cannot validate the detention. (2) Even if the Ordinance be valid it cannot have the effect of validating Rule 26 as that rule had no legal existence when the Defence of India Act was enacted. (3) Even if the Ordinance be valid, inasmuch as it was promulgated when the present proceedings were pending, the cases of the petitioners must be decided as if the Ordinance had not been passed. (4) Even if the Ordinance has validated Rule 26 the orders of detention are bad as they have not been made in accordance with the provisions of the rule. I shall now take up for consideration the main argument under the first head. It may be stated thus. The present Ordinance has been promulgated by the Governor. General in the exercise of the powers conferred upon him by Section 72 of Schedule 9, Government of India Act of 1935. The Ordinance directly repeals Section 2(2)(x), Defence of India Act, an Act of the Indian Legislature, and substitutes in that Act a new Section 2(2)(x). Although Section 72 gives the Governor-General very wide powers it does not give him the power to repeal or amend directly an Act of the Indian Legislature. On behalf, of the Crown the answer to this argument is that although such power has not been expressly conferred by the section nevertheless this power is necessarily included in the wide powers conferred by the section. Section 72 is in these terms:

The Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.

92. It is clear that although the section expressly gives the Indian Legislature the power to control or supersede directly &n Ordinance no such corresponding power is expressly given to the Governor-General in respect of an Act of the Indian Legislature. I would next draw attention to Section 108, Government of India Act, which expressly recognises the power in the Indian Legislature to amend or repeal directly an Ordinance. It provides that if the Indian Legislature wishes to pass an act which repeals, amends or is repugnant to an Ordinance it must get the previous sanction of the Governor-General. There is no similar express recognition of any power in the Governor-General to repeal or amend directly by Ordinance an Act of the Indian Legislature. I would emphasise at this stage that the present point for consideration is not whether the Governor-General by an Ordinance can indirectly repeal or amend an Act of the Indian Legislature by the process of repugnant legislation but whether the Governor-General as ordinance maker can as he has done by the present Ordinance, directly repeal a provision of an Act of the Indian Legislature and substitute therein as part of that Act another provision.

93. The argument of the learned Advocate. General is this : By Section 72 of Schedule 9 once there is an emergency and the Governor-General considers that an Ordinance is necessary for peace and good government, the Governor-General is given power to legislate by ordinance on any topic upon which the Indian Legislature could legislate and such Ordinance has the same force as an Act of the Indian Legislature. Where such wide and plenary powers are given it follows as a matter of course that the Governor-General has the power to amend or repeal an Act of the Indian Legislature. Such power is inherent and need not be expressly granted. It is there unless it is expressly taken away.

94. I am unable to accept this view. There is, I know a well-known general principle that a body which is given the power to make laws has necessarily the power to amend or repeal its own laws : see Section 33, Interpretation Act, which relates to bye-laws. I am also able to appreciate an argument that where two bodies are given the same power to legislate in the same field, one body may make laws which are repugnant to the laws made by the other body and thereby indirectly repeal or amend an Act of the other. But it must be remembered that when such repugnancy occurs, the Courts and the Courts alone decide which law is to prevail. One Legislature does not repeal or amend directly the Act of the other. I am not aware of any general principle that where there are two legislative bodies with equal powers to legislate in the same field one body has the inherent power to repeal or amend directly the law of the other body and thereby establish by its own Act an overriding power over the other legislative body. There is a fundamental difference between the power to amend or repeal directly and the power to make repugnant laws. In the case of repugnancy one Legislature does not override the other. It merely legislates in its own field and leaves it to the Court to decide which law shall prevail. When one Legislature has the right to amend or repeal directly an Act of the other the decision as to which law shall prevail is not left to the Court. The Legislature which repeals or amends makes the decision for itself. The matter may be looked at from another angle. An Act of the Indian Legislature expresses the collective wisdom and will of the members of the Legislature, an Ordinance expresses the will and wisdom of the Governor-General.

95. It is difficult to appreciate how there can be any inherent power in the Governor-General as ordinance maker to introduce an Ordinance into an Act and make it part of the product of the Indian Legislature. To put the question more concisely. Has the Governor-General by reason of the provisions of Section 72 the inherent power of transforming an Ordinance into an Act of the Legislature? In my opinion he has not. However similar they may be an Ordinance is one thing and an Act of the Indian Legislature is another. They are not identical. Section 72 gives the Governor-General the power to make ordinances. It does not empower him to make an Act of the Indian Legislature or to convert Ordinance into an Act of the Indian Legislature. If he cannot make such an Act, it follows that he can have no inherent power to repeal or amend it directly or substitute something into it.

96. The learned Advocate. General supported his contention that the Governor. General had power to amend or repeal directly an Act of the Indian Legislature by recourse to another argument. This is what he said. When there is an emergency the Governor-General has, by virtue of the provisions of Section 72 of Schedule 9, power to make any law that the Indian Legislature could make for peace and good government. There can be no doubt that the Indian Legislature can make a law repealing or amending directly a previous law of the said Legislature. Therefore the Governor-General can make an Ordinance directly repealing or amending an Act of the Indian Legislature. The argument is plausible, but if the words of Section 72 are care-fully analysed it will be found to be unsound. Section 72 does not anywhere either expressly or by necessary implication say that in cases of emergency the Governor. General can by Ordinance make every law which the Indian Legislature can make. It says that in cases of emergency the Governor-General can make an Ordinance for peace and good government and that such Ordinance when validly made shall have “the like force of law as an Act passed by the Indian Legislature.” What does this then mean? It means simply this, that the Ordinance shall be as binding upon persons, as if it were an Act of the Indian Legislature and that it will be enforceable in the same manner as an Act of the Indian Legislature. The words “shall have the like force of law as an Act passed by the Indian Legislature” describes the qualities or attributes of the Ordinance, they do not confer a power on the Governor-General to make every law which the Indian Legislature can make. Again the section says:

The power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowances as an Act of the Indian Legislature.

97. These words are relied upon by the learned Advocate-General for his contention that the Governor-General as Ordinance maker can do whatever the Indian Legislature can do. The words relied upon are not words donating powers but words imposing restrictions on the power already conferred by the first part of Section 72 on the Governor-General to make Ordinances. The learned Advocate-General seemed to argue that as the section imposes the same restrictions upon the Governor-General’s power of making Ordinances as are imposed on the powers of the Indian Legislature to make laws, it follows that the powers of both Legislatures are identical. There is a fallacy in this argument and, if I may say so with respect, the argument really begs the question. If both Legislatures had originally identical powers then, certainly, the imposition of identical restrictions would result in the powers still remaining the same. This is axiomatic, but the mere imposition of like restrictions does not connote the conferment of identical powers. We are thus brought back to the original question – does Section 72 confer upon the Governor-General the power to do everything that the Indian Legislature can do? The answer is that the section does not say that it is doing any such thing and there is neither jurisdiction nor necessity for reading into a section of this description, which confers extraordinary emergency powers upon the Governor-General, something which is not there and which will have the effect of widening these emergency powers.

98. The learned Advocate-General next argued that as the Governor-General could indirectly repeal or amend an Act of the Indian Legislature by making an Ordinance which was repugnant to the Act he necessarily could effect the same end by the direct method of express repeal and amendment. What can be done indirectly, he argued, can also be done directly. I know of the principle more than once laid down by the Judicial Committee and the House of Lords that what a Legislature cannot do directly it cannot do indirectly Great West Saddlery Co. v. The King (’21) 8 A.I.R. 1921 P.C. 148 at p. 100, but I have not yet found any Court laying down the principle that what one can do indirectly one can necessarily do directly. To give countenance to this argument of the learned Advocate-General would be to accept the view that the end justifies the means, a view that is as unsound in ethics as it is in law. The law may sanction the achievement of a certain end but it does not follow from this that the law sanctions the employment of any and every means for the achievement of that end. What means are permissible and what are not must be ascertained from the terms of the law which gives the power and when there are no express terms from general principles of construction.

99. On behalf of the petitioners it was pointed out that whenever Parliament intended to give one legislative body in India the power to repeal or amend an Act of another legislative body Parliament gave this power in express terms. In this connection our attention was drawn to Section 72 itself which lays it down in express terms that the Indian Legislature can control or supersede an Ordinance. It was argued that if the proposition of the Advocate-General was correct, viz., that when two Legislatures are empowered to pass laws in the same field it necessarily follows that one Legislature can repeal or amend directly the Act of the other, then there was no necessity for providing expressly that the Indian Legislature could control or supersede an Ordinance. The reply of the learned Advocate-General was that the express provision was not necessary and was put in there ‘ex abundanti cautela’. Why this abundant caution was necessary regarding the powers of the Indian Legislature which is the normal legislative authority and not regarding the powers of the Governor. General acting as a Legislature only in cases of emergency is difficult to appreciate. I should have thought that words of abundant caution were more necessary when defining the emergency legislative powers of an authority who normally would not have such powers than when defining the legislative powers of the normal Legislature.

100. On the other hand, it is open to the petitioners to rely upon the legal maxim “Expressio unius excludio alterius” and say that when one only of two legislative authorities is expressly given the power to repeal and amend an Act of the other it follows that the latter authority had no such power. On behalf of the petitioners our attention was also drawn to the provisions of Sections 92, 95 and 96, Government of India Act, in support of the contention that whenever Parliament intended to confer on one legislative body the power to repeal or amend directly the Act of another express terms are to be found granting this power. Section 92 deals with excluded areas and S.95 deals with British Baluchistan. Neither the Indian nor the Provincial Legislature has the power to legislate with respect to these areas. These sections give power to the Governor. General to introduce by notification as law into these areas any enactment of the Indian or Provincial Legislature with such modifications as he thinks fit. He is also given the power to make regulations for the peace and good government of these areas which shall have “the same force and effect as an Act of the Indian Legislature.” After giving the Governor-General these wide powers of legislation by regulation the section goes on to grant expressly to the Governor. General the power to repeal or amend by these regulations any law of the Indian or Provincial Legislature introduced by notification. Section 96 deals with the Andaman and Nicobar Islands. In respect of these places the Indian Legislature has the power to make laws. Section 96 empowers the Governor-General to make regulations for the peace and good government of these areas which shall have “the same force and effect as an Act of the Indian Legislature.” Here again an express power to amend and repeal an Act of the Indian Legislature by means of regulations is given to the Governor-General. If the contention of the learned Advocate General be correct, viz., that when two Legislatures have power to legislate in the same field one Legislature has necessarily the power directly to repeal or amend the Act of the other then it was quite unnecessary for Parliament to make those express provisions in Sections 92, 95, and 96, Government of India Act. Again, the learned Advocate-General argues that this was done for abundant caution. I am unable to appreciate why Parliament should be so cautious in all these instances and fail to exercise any caution when enacting Section 72. It is more reasonable to presume from the provisions of all these sections that whenever Parliament intended to give one Legislature the power to amend directly an Act of another it took meticulous care to say so in express terms. The view that I have taken finds support in the decision of the Judicial Committee in Ontrio v. Attorney General for the Dominion of Canada (1896) 1896 A.C. 348. I would refer to the observation of Lord Watson at p. 366 which is in these terms:

It has been frequently recognised by this board and it may now be regarded as settled law, that according to the scheme of the British North America Act the enactments of the Parliament of Canada, in so farjas these are within its competency, must override provincial legislation. But the Dominion Parliament has no authority conferred upon it by the Act to repeal directly any provincial statute, whether it does or does not come within the limits of jurisdiction prescribed by Section 92. The repeal of a provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactments of the Dominion; and if the existence of such repugnancy should become a matter of dispute, the controversy cannot be settled by the action either of the Dominion or of the provincial legislature, but must be submitted to the judicial tribunals of the country. In their Lordships’ opinion the express, repeal of the old provincial Act of 1864 by the Canada Temperance Act of 1886 was not within the authority of the Parliament of Canada. It is true that the Upper Canada Act of 1864 was continued in force within Ontario by Section 129, British North America Act, “until repealed, abolished, or altered by the Parliament of Canada or by the provincial legislature,” according to the authority of that Parliament, “or of that legislature.” It appears to their Lordships that neither the Parliament of Canada nor the provincial legislatures have authority to repeal statutes which they could not directly enact.

101. The learned Advocate-General argued that the Judicial Committee, when they said that the Dominion Parliament had no authority conferred upon it by the Act to repeal directly t any provincial statute whether it did or did not come within the limits of the jurisdiction prescribed by section 92, British North America Act, were not basing their view upon any general principle that one Legislature cannot repeal an Act of another unless it is expressly given such power, but were basing it upon the particular provisions of the British North America Act which, he said, prevented the Dominion Parliament from repealing an Act of the Provincial Legislature. I am unable to accept this view for the reasons stated by my learned brother Mitter J., with which I respectfully and 5 entirely agree. The conclusion of the Privy Council regarding the inability of the Dominion Legislature to repeal directly an Act of the Provincial Legislature is based on the assumption that one Legislature cannot directly repeal an Act of another unless it is expressly vested with powers to do so and that the North America Act had not vested the Dominion Parliament with any such powers. The judgment contains nothing to indicate that their Lordships held the view that the Dominion Parliament would have had the inherent power to repeal directly an Act of the Provincial Legislature were it not for the peculiar provisions of the North America Act, nor was the learned Advocate. General able to point out anything in the North America Act which would have the effect of taking away any such inherent power if it existed. Sections 91 and 92, North America Act, are the provisions which describe the fields of legislation of the Dominion and Provincial Legislatures respectively. It would seem prima facie that each Legislature has an exclusive field of legislation but that is not so. There is some overlapping and in times of great emergency the Dominion Parliament for the safety of the Dominion as a whole has power to trench upon certain subjects in the Provincial field : Fort Francis Pulp & Power Co. v. Manitoba Press (1923) 1923 A.C. 695 at p. 703. In spite of this power in the Dominion Parliament it was held in Ontrio v. Attorney General for the Dominion of Canada (1896) 1896 A.C. 348 at p. 366, that the Dominion Parliament could not directly repeal an Act of the Provincial Legislature. Their Lordships went further and said that even if the Provincial Legislature had travel, led beyond the provincial field the Dominion Legislature could not directly repeal it, but could only pass repugnant legislation and leave it to the Courts to decide which legislation should prevail. In my opinion, a general principle was being laid down in the above case to the effect that one Legislature cannot directly repeal an Act of another unless it is expressly given power to do so.

102. For the reasons given above, I am of opinion that there is no power in the Governor-General to repeal or amend directly an Act of the Indian Legislature by means of an Ordinance passed under Section 72 of Schedule 9, Government of India Act. The learned Advocate-General next argued that even if this be so Section 2 only of the Ordinance would be ultra vires. Section 3, he said, did not directly amend any Act of the Legislature and was therefore valid. That being so, he contended, the orders of detention made in respect of s the petitioners could not be challenged. In my opinion, this contention cannot prevail for more than one reason. It is perfectly clear from the terms of Section 3 itself that the section was intended to be merely an appendage to Section 2. It was not intended to have any separate existence at all but was merely explanatory of the effect of Section 2 on the validity of the detentions made before the promulgation of the Ordinance. If Section 2 falls Section 3 must fall with it. Let us remove Section 2 from the Ordinance and see how it reads:

An Ordinance further to amend the Defence of India Act, 1939. Whereas an emergency has arisen which makes it necessary further to amend the Defenoe of India Act, 1939 (35 of 1939), for the purpose hereinafter appearing.

Now, therefore, in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9 to the Government of India Act, 1935 (26 Geo. V, c. 2), the Governor-General is pleased to make and promulgate the following Ordinance:

1. Short title and commencement. – (1) This Ordinance may be called the Defence of India (Amendment) Ordinance, 1943. (2) It shall come into force at once.

3. Validity of orders made under Rule 26, Defence of India Rules. – For the removal of doubts, it is hereby enacted that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act, 1939.

103. Section 3 by itself would have no meaning. I refer specially to the words “For the removal of doubts.” Section 3 expressly states that it is enacted for the purpose of removal of doubts. Now what are the doubts it seeks to remove? Surely it cannot be said that the decision of the Federal Court created any doubt regarding the validity of the orders of detention made under Rule 26. The Federal Court in Talpade’s case1 in explicit terms removed any possible doubts on the matter and declared that all such detentions were illegal. To say, in spite of this judgment of the Federal Court, that doubts still existed would be a piece of sheer impertinence and I am unwilling to ascribe such impertinence to anybody exercising legislative functions. Some other meaning must therefore be given to the -words “for the removal of doubts.” The meaning is obvious. The Federal Court had declared in Talpade’s case that the detention of Talpade under Rule 26 was illegal because that rule was ultra vires of the rulemaking power granted to the Central Government by Section 2(2)(x), Defence of India Act, 1939. Section 2 of the Ordinance repealed Section 2(2)(x) and substituted a new section in its place in order to give the Central Government the powers to make a rule like Rule 26 stating at the same time that the new section shall be deemed always to have been substituted. To remove any doubts as to whether this new section would have the effect of validating detentions made before the amendment was made, Section 8 was enacted. It does not make any new law. It states in express terms that its object is to remove doubts. In other words it is merely explanatory of Section 2. If Section 2 falls Section 8 which is merely pendant from Section 2 must necessarily fall.

104. There is yet another reason why Section 3 cannot prevent the petitioners from challenging the validity of their detention and it is this. As I have said before, Rule 26 was made originally under the Defence of India Ordinance, 5 of 1989, in the exercise of powers, assumed to have been granted to the Central Government by Section 2, Defence of India Ordinance. The Ordinance was repealed by the Defence of India Act, 1939, and was re-enacted in almost the same terms. Section 2 of the repealed Ordinance was reproduced verbatim in the Act. No new rules were framed under the Act but the rules made in the exercise of powers conferred by the Ordinance were saved by Section 21 of the Defence of India Act. Now Section 3 of the present Ordinance says that the validity of a detention heretofore made under Rule 26 shall not be questioned on the ground that Rule 26 conferred more powers than could lawfully be conferred by a rule made or deemed to have been made under Section 2, Defence of India Act. This is the only ground which a detinue is prohibited from urging by Section 3. The urging of any other ground against the validity of the detention is not prohibited. It is therefore open to the petitioners to urge, as they do urge, that their detention is bad not merely because Rule 26 conferred more powers than a rule made or deemed to have been made under Section 2, Defence of India Act, could have conferred, but on the ground that Rule 26 had no existence at all as it was not saved by Section 21, Defence of India Act. This leads us to the consideration of Section 21. Does Section 21 save and continue rules made under the Defence of India Ordinance, 5 of 1939, or does it enact those rules afresh? The learned Advocate-General contends that it is not a saving section. I am not able to accept this view. The marginal note of the section is “Repeal and saving.” I fully appreciate that a marginal note cannot control a section but it certainly elucidates and illumines the meaning of a section. There are no words in the section which indicate that the marginal note is a misdescription. I hold therefore that Section 21 saves and continues rules made in the exercise of powers conferred by the Defence of India lOrdinance 5 of 1939. Now what rules does the section save? The learned Advocate-General contends that all rules valid or invalid which purport to be made under the Defence of India Ordinance were saved. I am not able to accept this view for the reason that the ; section does not say so. It says:

And any rules made…in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made…in exercise of powers conferred by or under this Act as if this Act had commenced on 3rd day of September 1939.

105. The section says that it saves rules made in the exercise of “any power conferred.” It does not say that it saves rules made in the exercise of a power not conferred but believed to have been conferred. Now, if it can be shown that no power was conferred upon the Central Government by Ordinance 5, of 1939 to make such a rule as Rule 26 then it follows that the rule was not saved by Section 21. This takes us to the decision of the Federal Court in Talpade’s case . I agree with the learned Advocate-General that the decision of a Court cannot repeal or annul a statute (Dicey: Law of the Constitution, Edn. 9, p. 98). I am not suggesting that the decision of the Federal Court has annulled or repealed Rule 26 and it is not necessary to say any such thing. But there is no bar to this Court deciding with reference to the Federal Court’s judgment whether such a rule like Rule 26 could validly be made under the provisions of ordinance 5 of 1939. Having regard to what was said by the Federal Court in Talpade’s case and having regard to the fact that the rule making powers granted to the Central Government by ordinance 5 of 1939 are exactly the same as the rule-making powers granted by the Defence of India Act, this Court cannot but come to the conclusion that the Central Government had no power to make a rule like Rule 26 under Ordinance 5 of 1939. The rule was not made in the exercise of “any power conferred.” It was therefore not saved by Section 21, Defence of India Act. That being so, a detention purporting to be made under Rule 26 which ceased to exist with the repeal of the Defence of India Ordinance 5 of 1939 cannot be valid. Other grounds were urged to show that the Ordinance was ultra vires. They have been dealt with fully by my learned brother Mitter J. and I entirely agree with his conclusions regarding them and for the reasons given by him.

106. I now come to the second argument, viz., even if the Ordinance be ultra vires, it cannot have the effect of validating Rule 26 as that rule had no legal existence when the Defence of India Act was enacted. This question has been fully discussed when dealing with the effect of Section 3 of the Ordinance. I have held that Rule 26 ceased to exist with the repeal of the Defence of India Ordinance 5 of 1939 and that it was not revived by Section 21, Defence of India Act. The present Ordinance makes no rules but merely seeks to enlarge the rule-making powers of the Central Government in order to validate Rule 26. Even if it be held that the Ordinance has validly enlarged those powers, Rule 26 could not be validated as it was not in existence from long before the passing of the Ordinance. As there was no Rule 26, the detention of the petitioners must be illegal as there is no power given to any one by law to make any such order of detention. I shall sum up my conclusions on these two arguments urged on behalf of the petitioners. I hold in agreement with my learned brother Mitter J. that the entire Ordinance is ultra vires the ordinance-making powers of the Governor-General and that the orders of detention of the petitioners are bad and without jurisdiction. I hold further in agree, raent with my learned brother Mitter J. that Section 3 of the Ordinance cannot prevent the petitioners from challenging the validity of the orders of detention or prevent this Court from declaring that such orders are illegal and without jurisdiction. In arriving at this conclusion regarding the effect of Section 3 I have given an additional reason with which my learned brother Mitter J. does not agree. I also hold that even if the Ordinance be within the powers of the Governor-General the detention still remains illegal as Rule 26 was not in existence when the detentions were made and was never re-enacted.

107. I now come to the third point urged, viz., that the Ordinance having been promulgated while the cases of the petitioners were pending, it cannot affect the decision of these cases which must be decided in accordance with the law as it was when the rules were issued. It is a well established principle that an amendment shall not be given retrospective effect unless there are clear terms in the Act making it retrospective. Here there are express terms giving the Ordinance retrospective effect but the petitioners contend that there is another principle, viz., even if an amendment is given retrospective effect, if there is an action pending at the time the amendment was made the Court will decide the action in accordance with the law as it stood before the amendment unless the Act clearly indicates that the amendment will affect pending proceedings. In this connexion our attention was drawn amongst others to In re Joseph Suche and Co. (1876) 1 Ch. D. 48 at p. 50 and to United Provinces v. Atiqa Begum . The learned Advocate-General relied on the decision of the Privy Council in K.C. Mukherjee v. Ramratan Koer . The principles which I deduce from all these cases is this. If the law is changed while an action is pending even if the new law is given retrospective effect it will not affect the rights of the parties to the pending action unless the statute expresses such an intention either directly or by necessary implication. In the absence of such an expression, the pending action must be decided according to the law as it was at the time the action commenced. I must guard myself by saying that these principles apply to a change in the substantive law and and not necessarily to a change in procedural law. It follows from this that the whole question is really a matter of construction of the particular statute. In my opinion Sections 2 and 3 of the Ordinance read together leave no room for doubt that the intention of the Ordinance was to affect pending actions; The Ordinance if it had been valid would, in my opinion, have had to be taken into consideration in deciding upon the validity of these orders of detention. The third main ground therefore fails. In this connexion I may notice an argument urged on behalf of the petitioners that there is no power given to the Governor-General to make an Ordinance having retrospective effect. In support of this argument reliance was placed on the following words appearing, in Section 72 of Schedule 9.

And any ordinance so made shall for the space of not more than six months from its promulgation have the like force of law.

108. It was argued that if an Ordinance is made retrospective its operation will commence from a date before the date of its promulgation and it may thus have force for a period longer than six months. I cannot accept this argument. All that Section 72 said is that the Ordinance shall have force for not more than six months from the date of its promulgation. I can see no reason why for the space of these six months the Ordinance cannot have retrospective effect. The period during which a law has force is quite a different matter from the effect which a law may have. There is, in my opinion, no bar to a temporary law having a retrospective effect. Further I would point out that since the India and Burma (Emergency Provisions) Act of 1940 (3 and & Geo. VI, oh. 33) the words limiting the life of an ordinance to six months have been deleted. I now come to the fourth and last ground urged on behalf of the petitioners, viz. : Even if the Ordinance be valid the orders of detention are bad as they were not made in accordance with the terms of Rule 26 which the Ordinance has sought to validate. In my opinion this ground must prevail. Rule 26 says that the Provincial Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in a particular manner it is necessary to make an order directing him to be detained it may make an order directing that he be detained. Before an order of detention under Rule 26 can be passed, the Provincial Government must be satisfied about certain matters. This satisfaction is the condition precedent of an order of detention and indeed it is the only ground upon which the order can rest. Now what is meant by “Provincial Government?” Section 43a, General Clauses Act, defines Provincial Government thus:

(43a) “Provincial Government” as respects anything done or to be done by the “Provincial Government” after the commencement of Part 3, Government of India Act, 1935, shall mean – (a) in a Governor’s Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in that behalf made by and under the said Act.

109. In short it means the Governor acting on the advice of his Ministers or the Governor acting without and against such advice when he may so act. It follows from this that before an order of detention under Rule 26 can be made the Governor acting as aforesaid must be satisfied as regards the matters mentioned in the rule. I am not unmindful of the fact that it is not open to the Court to investigate whether there were sufficient grounds upon which the Governor could properly be satisfied. That is a matter entirely for the Governor to decide. But it is certainly open to the Court to enquire whether the Governor was in fact satisfied. The Advocate-General contended first that in view of the nature of the orders of detention passed in this case it is not open to the petitioners to say that the Governor was not satisfied. He pointed out that the orders were signed by a Deputy Secretary to the Government of Bengal and that they stated expressly that the Governor was satisfied. He then drew our attention to Section 59(1) and (2), Government of India Act, and argued that Sub-section (2) precluded any one from challenging the fact that the Governor was satisfied. I am unable to accept this view. Sub-sections (1) and (2) of Section 59 are in the following terms:

59. (1) All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

110. All that Sub-sections (1) and (2) lay down is that all executive orders shall be expressed in the name of the Governor and shall be authenticated in a particular manner. If it is so authenticated, no one can say that the order is not valid on the ground that it has not been made by the Governor. The validity of the order does not become unchallengeable on all grounds. The validity of the order is not challengeable only on one ground, viz., that it is not an order made or executed by the Governor. In this case the argument is not that the orders of detention are bad be. e cause they were not made or executed by the Governor; the argument is that the detention is bad because the Governor did not satisfy himself on matters on which he was bound to satisfy himself before he could pass an order of detention. Nothing in Sub-section (2) of Section 59 precludes this Court from inquiring whether the Governor was satisfied.

111. Next the learned Advocate-General argued that the Governor having stated that he was satisfied, it is not open to the Court to enquire whether in fact he was satisfied. I am not impressed by this argument. As I have said before I appreciate the argument that it is not for this Court to say that the Governor was satisfied on inadequate grounds or that the Governor’s satisfaction was improper but it is always open to this Court to investigate whether in fact he was satisfied. Ordinarily the ‘ipse dixit’ of the Governor would be quite enough and it would be extremely difficult for any one to prove that the Governor was not in fact satisfied when he stated that he was. But in this case there are ample materials to prove conclusively that the Governor was not, in fact, satisfied. This takes me to the affidavits filed in this case.

112. Of the nine detenues affidavits have been filed on behalf of seven. On behalf of one of them viz., Sasanka Sekhar Sanyal, in addition to the affidavit sworn by the detenue an affidavit has been sworn by his cousin Nalinakshya Sanyal and to it was annexed the report of certain proceedings held in the Bengal Legislative Assembly during which the Home Minister made certain statements in answer to questions put to him in the House. The learned Advocate-General objected to the report of the proceedings being put in evidence. His contention was that the statements of the Home Minister were not evidence at all, and that in any case they were not evidence of the truth of the facts stated by him. In this connexion he referred us to Gerald Lord Strickland v. Carmelo Mifsud Bonnici (’35) 22 A.I.R. 1935 P.C. 34 which was decided by the Privy Council on appeal from the Court of Malta. That case really has no application as the facts were entirely different. Here the Home Minister was speaking on behalf of the Government as its spokesman and his answers to questions put to him, as Home Minister, in relation to matters dealt by him as Home Minister, are admissible in evidence as admissions made by the Government. Government is a party to these proceedings and therefore these admissions are relevant and admissible under the Indian Evidence Act against the Government. The Crown may of course show that the admissions were really not admissions or that they were made under a mistake or that they were not binding on Government for any other valid reason, but unless this is shown the admissions must be taken in evidence against Government. Government was given an opportunity to answer the points involved in all the affidavits and the annexure and, on behalf of the Crown, Mr. Porter the Additional Secretary, Home Department, has sworn an affidavit. After we decided to take the statements made by the Home Minister into evidence it was agreed between the learned Advocate-General and the petitioners that these statements of the Home Minister would be taken into consideration in the cases of all the detenus so far as they may apply to their cases without separate affidavits containing those statements being filed in each case.

113. We pointedly asked the learned Advocate-General whether it was his case that the Governor personally was satisfied in terms of Rule 26 that in each of these cases an order of detention was necessary. He replied that he was not in a position to show this. He referred to the affidavit of Mr. Porter and stated that in all the nine cases Mr. Porter was satisfied. In the cases of Debabrata Boy, Pratul Ganguly, Birendra Ganguly and Narendra Nath Sen Gupta, the Home Minister was also satisfied. In the case of Birendra Ganguly, the Home Minister was satisfied subsequent to the passing of the orders of detention. In the case of Niharendu Dutta Majumdar and Sasanka Sanyal the orders were passed without the consent of the Home Minister. In the cases of Bejoy Singh Nahar, Shibnath Banerjee and Noni Gopal Majumdar, Mr. Porter under a general order of the Home Minister passed the order of detention without first consulting the Home Minister. In the cases of Bejoy Singh Nahar and Shibnath Banerjee subsequent to the order of detention materials regarding their cases were placed before the Home Minister and he has not passed any order withdrawing the order of detention made by Mr. Porter. In the case of Noni Gopal Majumdar the materials have not as yet been placed before the Home Minister for ‘review.’

114. The learned Advocate. General stated that except perhaps in the case of Sasanka Sanyal there was no question of the Governor being personally satisfied within the meaning of Rule 26. In Sasanka’a case he said that the facts indicated that the Governor was personally satisfied but there was nothing expressly stated in the affidavits to this effect. a His contention was that the law does not require the Governor personally to be satisfied and that the Governor could discharge this function through his Ministers or any of his officers without passing any specific orders delegating this particular function. He referred to Sections 49 and 59, Sub-sections (3) and (4), Government of India Act, in support of his argument. Section 49 says that the executive authority of a Province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him.

115. I fail to see how this section can be of any help in the decision of this point. The section deals with the executive authority of a Province which is in His Majesty and which the Governor is empowered to exercise on behalf of His Majesty either himself or through his subordinates; it has nothing to do with a particular function imposed upon the Governor by the Defence of India Act, viz., the duty of satisfying himself regarding certain matters before he passes an order of detention under Rule 26 of that Act. I cannot see how this particular duty can be included in the term “executive authority of a Province.” Sub-section (2) of Section 49 makes it impossible to include what I may shortly describe as “the duty of satisfaction” within the meaning of the words “executive authority of a Province.” That sub-section says that the executive authority of each Province extends to matters with respect to which the Legislature of the Province has power to legislate. Now Rule 26 which imposes this ‘duty of satisfaction’ relates to many matters regarding which the Provincial Legislature cannot legislate; the functions imposed by the rule cannot therefore come within the meaning of the words “executive authority of a Province.” I would add in passing that I cannot subscribe to the view just expressed by my learned brother, Khundkar J., that a Minister is an officer subordinate to the Governor. In my opinion he cannot in any sense be so regarded. Next I hold that Sub-sections (3) and (4) of Section 59, Government of India Act, which empowers rules of business to be made can be of no assistance to the Crown. These rules relate td the executive business of the Government. They cannot be made to apply to this particular duty. I am of opinion that the Governor cannot delegate his duty of being satisfied within the meaning of Rule 26 by recourse to the provisions of Section 49 or Section 59, Government of India Act. It may be contended that it could never have been the intention of the Defence of India Act that the Governor should look into the case of every person sought to be detained. This is quite a reasonable view. The Defence of India Act has made express provision for this difficulty in Section 2(5).

2. (5) A Provincial Government may by order direct that any power or duty which by rule made under Sub-section (1) is conferred or imposed on the Provincial Government, or which, being by such rule conferred or imposed on the Central Government, has been directed under Sub-section (4) to be exercised or discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised, or discharged by any officer or authority, not being (except in the case of a Chief Commissioner’s Province) an officer or authority subordinate to the Central Government.

116. The Governor is given express power to make an order directing this function to be discharged by some one else. He has made no such order under Section 2(5) except in the case of the District of Chittagong and these cases are not of that District. He is therefore the only person who can discharge this function. He has certainly not discharged this function in the case of any of the nine petitioners except possibly in the case of Sasanka Sanyal. In that case also, although this point was expressly raised and argued at great length there is no positive evidence to show that he did so satisfy himself. This being the position the orders of detention must be considered to have been improperly made and the petitioners are entitled to be released forthwith from such detention. The statements of the Home Minister and the affidavit of Mr. Porter disclose that certainly in seven out of the nine cases before us the orders of detention were made in gross violation of the provisions of Rule 26, Defence of India Act.

117. I leave out of consideration in this connexion the cases of Debabrata Roy and; Pratul Ganguly who were detained in 1940. In the case of Birendra Ganguly, Mr. Porter said that he passed the orders of detention under Rule 26 “in anticipation of the orders of the Home Minister, Bengal, who on 18th September recorded his approval of continued detention.” Now there is no provision in Rule 26 for this procedure. There can be no detention under that rule until the detaining authority is satisfied that the detention is necessary for the purposes specified in the rule. There is no scope for an interim detention under Rule 26 which can be made absolute after satisfaction. Obviously the Home Minister was considered to be the person who was to be satisfied yet an order of detention is made by the Additional Secretary in anticipation of the Minister being satisfied. This seems a somewhat light-hearted manner of administering the Defence of India Act. The order of detention of Birendra Ganguli was illegal in its inception and continued to be illegal as there is no provision in the Defence of India Act or in the rules thereunder by which a detention, illegal in its inception, can be converted into a legal one by subsequent ratification. Again, the statement of the Home Minister is that he adopted a certain ‘device’ in these cases. When cases for detention under Rule 26 were brought up to him he automatically passed orders of detention under Rule 26 before satisfying himself that the detention was necessary; thereafter at his leisure he investigated the cases and then confirmed the orders in some cases and set them aside in others. He says he did this because he wanted to give the arrested persons the greater creature comforts a detenue has and which a person under arrest under Rule 129 cannot have. I suppose the Home Minister was under the impression that he was tempering justice with mercy. He forgot however that he was disobeying a salutary and essential provision of the law that he was supposed to be administering, viz., that no person should be detained under Rule 26 unless the detaining authority first satisfied himself that the detention for the purposes specified in the rule was necessary. I find it difficult to refrain from remarking, in passing, that the granting of additional amenities like an extra blanket or so would afford cold comfort to a person who is told when these amenities are being given that he is going to be detained under Rule 26, Government of India Act.

118. That this was the procedure followed is established not only by the statements of the Home Minister but by the affidavit of Mr. Porter. He says in Para. 8 of his affidavit that on 1st October 1942 the Home Minister directed that as soon as a report of an arrest together with a recommendation by the police for detention was received an order for detention under Rule 26 should at once be issued as a matter of course. Mr. Porter’s order in the case of Birendra Ganguli which was passed on 14th September 1942 seems to have been only a piece of intelligent anticipation of this general order. In the cases of Bejoy Nahar, Shibnath Banerji and Noni Gopal Majumdar Mr. Porter says expressly that he acted in accordance with this general order. His averment in the last paragraph of his affidavit does not necessarily mean, that even in these cases he was personally satisfied that an order for detention was necessary, for the purpose mentioned in Rule 26. He says “I was satisfied that it was necessary to issue the order.” The words used are significant. In view of the general order of the Home Minister issued on 1st October 1942, Mr. Porter might well have been satisfied that “It was necessary to issue the order” once the police report was received without at all troubling to be satisfied that the detention of the petitioners was necessary in order to prevent them from acting in the manner mentioned in the rule.

119. As regards the petitioner Narendra Nath Sen Gupta, his order of detention was sanctioned by the Home Minister on 17th October 1942, i. e., after the general order of 1st October 1942. In view of the statement of the Home Minister in the Assembly, it is reasonable to hold in the absence of any averment to the contrary that this order was also passed before ‘satisfaction’ in order to give the petitioners superior comforts. His detention would also be improper even if we were to hold that it was not for the Governor personally to be satisfied. As regards the orders of detention passed on Debabrata Roy and Pratul Ganguly they do not seem to be tainted with the device adopted by the general order of 1st October 1942. These orders of detention were passed in 1940 but they would be improper on the other ground that the Governor had not personally satisfied himself regarding the necessity of the detentions. In the case of Niharendu Dutt Majumdar there is nothing to show who was satisfied. This order of detention is also not tainted by the general order of 1st October 1942 as it was made without any preliminary arrest under Section 129 and served in his house in his absence. In his case an interim order of detention to ensure greater comforts was not necessary as he was not in custody at the time of the order. Nevertheless the order is improper as it has not been shown that the Governor was satisfied.

120. In the case of Sasanka Sanyal, it is also clear that the device of 1st October 1942, was not employed. His custody after arrest pursuant to Rule 129, Defence of India Rules, was not automatically converted into detention under Rule 26 but the order is bad as it has not been shown that the Governor was personally satisfied that the detention was necessary. I thus find that the orders of detention in these nine eases are not only illegal because the Ordinance is ultra vires but also improper because the orders of detention were passed in violation of the safeguards, slender though they be, contained in the rule itself. These rules must therefore be made absolute and the petitioners set at liberty forthwith. It is not for us to criticise the wisdom or the propriety of the Defence of India Act or the rules made thereunder; our duty is to determine their validity and, if they are found valid, to administer them according to law. We realise that in times of emergency the executive have to be given extraordinary powers which may have the effect of keeping out, to some extent, judicial scrutiny of acts done by the executive. But when through some unexpected crevice in these barriers against judicial action a cry against an illegal act does reach this Court it becomes our duty to be vigilant and to see that the liberty of none of His Majesty’s subjects is touched except in strict compliance with the law and neither the clouds of war nor the dust of political upheaval must be allowed to obscure our vision or blur that strict scrutiny which we must always bring to bear upon any action which savours of oppression or injustice. I am tempted to quote the observation of Lord Atkin in Eshugbayi Eleko v. Officer administering the Government of Nigeria (’31) 18 A.I.R. 1931 P.C. at page 670 which are very apt in this case:

In accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a Court of Justice and it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive.

121. I would only add that this Court shall always endeavour to maintain unimpaired this great tradition.

DATE : 3rd June, 1943

     Mitter, J.