TaxTMI 
TaxTMI 
1948 (7) TMI 6
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....he belief recited in the order. Via -count Maugham sums up his conclusion thus: The result is that there is no preliminary question of fact which can be submitted to the Courts and that in effect there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith. ( 3. ) In support of this conclusion, the learned Lord relies on four circumstances First, that it was a matter for executive discretion and the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a judge in a Court of law could not have been contemplated: Secondly, that the Home Secretary could act on hearsay and was not required to obtain any legal evidence and therefore the Home Secretary was not acting judicially in such a case: Thirdly, that in many cases he will be acting on information of a most confidential character which could not be communicated to the person detained or disclosed in Court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm: and Fourthly, that the person who is primarily entrusted with t....
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.... an impersonal standard independent of the Secretary of State's own mind, or is it the personal standard of what the Secretary of State himself deems reasonable ? Between these two readings, there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of State had for his belief may, if challenged, be examined in a Court of law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man, and to enable the Court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he cannot, if he has acted in good -faith, be called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief. In discussing these rival views, the learned Lord refers to the following rule of construction: The p....
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.... directly arose out of an application for a writ of habeas corpus. It was held that the production of the Home Secretary's order of detention, the authenticity and good faith of which were not impugned, constituted a complete answer to an application by the appellant for a writ of habeas corpus, and no affidavit by the Home Secretary justifying his cause of belief was necessary, and the decision in Liversidge v. Sir John Anderson, (1942) A. C. 206 : (1941 -3 ALL E. E. 338) was followed. Viscount Maugham states the two propositions laid down in the Liversidge's case (1942 A. C, 206 : (1941) 8 ALL E. K. 838) ) thus: Your Lordships there decided that the words, in the context in which they are found, refer simply to the belief of the Secretary of State based on his view as to there being reasonable cause for the personal belief which justifies the detention order , ., . Your Lordships also expressed the opinion that the Secretary of State could not be culled on to disclose his information or grounds of belief if he took the view that It would be contrary to the public interest to do so. He held that the order itself was a sufficient answer and that it must be presu....
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....I [l] of 1947: Were the person detained left witheut any safeguard, this might be an argument against holding that an absolute discretion has been conferred on the Secretary of State, but the argument is the other way when it is found, as it is in this regulation, that elaborate provision is made for the safeguarding of the detained person's interests. I refer to the constitution of advisory committees to which any person aggrieved by a detention order way make representations. The duty is imposed on the chairman to inform the objector of the grounds on which the detention order has been made and to furnish him with such particulars as are in the chairman's opinion sufficient to enable him to State his case, I say nothing as to the efficacy of this safeguard, for I do not know how it operates in practice, but I emphasize the significance of its presence in the regulation. It suggests that this special procedure was introduced for the very reason that review by the law Courts was excluded. ( 10. ) I nest come to the class of cases to which Section 16 A would apply. With respect to this class the case in Basanta Chandra Qhose v. King -Emperor decision of the Feder....
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....ely before the promulgation of the Ordinance. If on consideration the Court cornea to the conclusion that it was not validly made on any of the grounds indicated in any of the long line of decisions in England and this country on the Subject, other than the ground that B. 26 was ultra vires, 8,10 of Ordinance III will no more prevent it from be finding than Section 16, Defence of India Act did. Saab, an invalid order theugh purporting to be an order, will not In fact be an 'order made under this Ordinance' or having effect by virtue of Section 6 as if made under this Ordinance at all for the purposes of Section 10. The grounds indicated in the long line of decisions in England referred to by the learned Chief Justice of India are these discussed in the 'speeches in the House of Lords in Liver sidge v. Sir John Anderson, (1942) A. C. 206 : (1941 -8 ALL E. Rule 338). The esect of this decision of the Federal Court is that in the present case it may be said that the addition of s, 16 -A does not make any material difference in the curtailment of the powers of this Court to interfere with orders of detention passed under the Act, theugh of course only on t....
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.... under Regulation III, Sub -section (1)(b) baa no application, It seems to us therefore to follow that something more than allegations that a person is being 'illegally or improperly' detained under Regulation III is necessary before the Court can get over the bar to jurisdiction under the section imposed by sub -section (8). Complaints as to the. illegality or impropriety of the detention, if the detention be under Regulation III, can .be dealt with under the procedure laid down in Sections 3, 4 and 5 of Regulation III and may well both basis of other claims which a Court can properly entertain, but such allegations can - not in our judgment be sufficient to give the Court jurisdiction under' Section 491. If on the facts of the case it is clear that a person is being detained under Regulation III, even theugh a Court might think if it investigated these facts, it might find that the detention was illegal or improper, still the Court cannot in our judgment interfere under Section 491. In this case it is clear that the Government has been claiming to detain the appellant from 9th September 1940, onwards under Regulation III. ( 12. ) The learned Chief Justice then went....
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....ernor -General in Council to require that an individual should be placed under personal restraint, witheut any immediate view to ulterior proceedings of a judicial nature, a warrant of commitment under the autherity of the Governor -General in Council, and under the hand of the Chief Secretary to Government, shall be issued to the officer, in whose custody such person is to be placed. (2) the warrant of commitment shall be in the following -form : (The form is not relevant). (3) The warrant of commitment shall be sufficient autherity for the detention of any State prisoner in any fortress, jail, or other place within the territories subject to the presidency of Port William. ( 13. ) In the case before the Federal Court, it was neither alleged nor established that the warrant of commitment was not in the prescribed form or not in conformity with the provisions of the Regulation. A warrant duly signed by R, Tottenham, Additional Secretary to the Government of India, and containing the statement that the Governor. General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with the Indian States, has ....
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....ith a view to preventing him it is necessary to direct him to be detained or otherwise dealt with under Section 2(l) of the Act, is not present. If it is established that neither the Provincial Government nor the officer or other autherity empowered under Section 15 has exercised its or his mind on the material placed before it or him, then an order of detention, theugh purporting to be passed under s, 2 (2) must be deemed' to be not an order under Section 2. ( 15. ) These , then, are the only grounds on ' which in spite of Section 16 and Section 16 -A of Madras Act. I [l] of 1947 this Court can exercise the power conferred on it by Section 491, Criminal P. C. If these grounds exist, in respect of any detained persons, such a person will not be a person detained or deemed to have been detained under fl. 2 of the Act. ( 16. ) If these grounds do not exist, it is well established on the highest autherity that this Court, 'cannot investigate the sufficiency .of the material or the reasonableness of the grounds,' vide Emperor v. Sibnath Banerjee upon which the Government or the empowered officer or autherity had been satisfied. It is not competent for this Court t....
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....ed with respect to any particular person that he is acting or about to Act. in any manner prejudicial to the public safety or the maintenance of public order and with a view to, preventing him, it is necessary so do, may make an order directing that he be detained. Section 15 provides for the delegation of the powers and duties of the Provincial Government under the Act to such officers or autherities as the said Government may by order specify. Section 2(2) 'directs that when any order is made under sub -a. (1) of Section 2 by an officer or autherity empowered under Section 15 that officer or autherity shall forthwith report the fact to the Provincial Government together with the grounds on which' the order has been made and such other particulars as, in the opinion of such officer or autherity have a bearing on the necessity for or expediency of the order. Section s (l) provides that whenever an order in respect of any person is made by the Provincial Government or by any officer or autherity subordinate to them the Provincial Government shall communicate to the person affected by the order the grounds on which the order has been made against him and such other p....
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....the purpose of amend - ing the Madras Maintenance of Public Order Act, 1947: And whereas the instructions of the Governor General have been obtained in pursuance of the proviso to Section 88, Sub -section (i), Government o( India Act. 1933 ; Now, therefore, in exercise of the powers conferred by Section 88, Sub -s, (i) aforesaid, the Governor hereby promulgates the following Ordinanoe. There is no need to make any detailed reference to th'e provisions of this Ordinance apart from S. I, Section 2 provides for the insertion of new Sections 2A and 2B in Madras Act I Q] of 1947 which -render penal the harbouring or concealing of persons ordered to be detained and the reproducing or publishing of statements made by persons be ordered. Power to seize and search for copies of documents which have been forefeited is conferred by the new Section 12A the insertion of which is provided for by Section 3 of the. Ordinance. Then occurs S. of the Ordinance round which a considerable portion of the arguments centred. It may be set out in extenso. 4, After Section 16 of the said Act. the following section, shall be inserted, namely:16A. Nothing in Section 491, sub -ss. (1) and (3), Criminal&....
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.... be inquired into in any Court. This excludes all discussion of an allegation that' no advice was or could have been tendered, but even assuming otherwise there is nothing offered by the applicants by way of proof of Such an assertion. ( 24. ) The gravamen of the charge finally reduces itself to an attack on the propriety of issuing an order of prorogation on the 24th. If the Legislature was in session on the 24th, it was pointedly asked, why was not the Legislature immediately summoned to consider the necessity or desirability to legislate in the terms of what has now been promulgated in the shape of an Ordinance ? It was emphasised that the prorogation was just on the eve of the promulgation of the Ordinance and was made, it was suggested, with a view to avoid a discussion by the Legislature, at any rate, at that stage, of the somewhat drastic provisions of the intended legislation. The propriety or otherwise, however, of The order of prorogation is not a matter for consideration by this Court. Assuming its impropriety, that would in no way furnish a legal ground for invalidating The Ordinance that has been issued. ( 25. ) Presuming , as we must, the c....
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.... 'include' with all its grammatical variations has always been -read as widening the scope of the definition so as to bring in what would not otherwise be comprised in it. Delivering the judgment of the Judicial1 Committee in Dilworth v. Commissioner of Stamps (1899) a. c. 99 : (68 l.J .P. C. l) Lord Watson said: The word 'include' is very generally read in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute ; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural Import, but also these things which the interpretation clause declares that they shall include. My construction of Item 2 of List III receives support from the decision of the Patna High Court in Vishwanath v. Sri Mahant, 17 pat. 714 at 725 : (A.I.R. (26) 1939 pat. 90) where it was held referring to Item 4 of the same List which is in similar terms that 'all matters whether relating to procedure or not included in the Code of Civil Procedure on the date of the pas. sing of the Government of India Act are concur. rent legislative subject....
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....f an entry or entiles, one of which will result in legislative power being Conferred. by some entry or entries in the lists and the other in a finding of no existing power, but if legislation is required that recourse must be had to Section 104, the first construction should on principles analogous to these applied to the .Canadian Constitution be preferred. It is unnecessary to decide whether item 2 of the Concurrent Legislative List should be read along with items 1 and 2 of the Provincial Legislative List so as to allot Section 491 to the former sphere or whether it should be held to fall within the -scope of item 2 of the Provincial Legislative List read with item 1, there being to that extent a subtraction out of item 2 of the Concurrent Legislative List. As observed by the Privy . Council in Profulla Kumar v. The Bank of Commerce Ltd., 1947 -2 M. L. J. 6 at 13 : A.I.R. (84) 1947 P. C. 60, 'It is not possible to make so clean a cut between the powers of the various Legislatures: they are be und to overlap from time to time.' For the purpose of the present contention it is sufficient to hold that the matter falls under either the one or the other of the items referre....
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....oid. This, however, is statedly 'subject to the provisions of this section.' This would bring in sub - s. (2) which provides that if the procedure therein laid is followed, the Provincial law shall prevail over the existing law in the Province concerned, and it is then stated that even in such a case the Dominion Legislature may at any time thereafter enact further legislation with respect to the same matter. The argument that Section 107 (l) is absolute is, I think, answered by the language of the sub -section itself which provides that it operated 'subject to the provisions of this section,' the only relevant provision for this purpose being sub -section (2). On my reading of Section 107, the present case falls under Section 107 (2) and the procedure laid down in that sub -section or rather what is equivalent to it under Section 88 (1), namely, the obtaining of instructions from the Governor. General having been satisfied, Section 4 of the Ordinance would prevail over Section 491, Criminal P. C. and its validity cannot be questioned on this ground even if Section 4 is assumed to relate to a matter in the Concurrent Legislative List. Whether and how far Section 4 i....
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....r to deal with cases of illegal or improper detention other than the power to issue a writ of habeas corpus or the statutory power under Section 491. No case has ever asserted the existence of any such power. Moreover, it is clear law that where a power is given expressly there is no scope for the exercise of an inherent power. ( 30. ) The question has next arisen as to whether Section 16 -A would apply to the applications before us which for. this purpose would fall into two groups, namely, these which were filed before and were pending on 26th May 1948 when Section 16a came into operation and these which were filed subsequent to 25th May 1948 theugh in respect of orders of detention which had been passed prior to that date. The argument on behalf of the Crown goes so far as to claim that the jurisdiction under Section 491 ceases to be exercisable on the pro -mulgation of the Ordinance and that this is indicated by the sweeping reference 'any person detained or deemed to have been detained' under Section 2 of the Act. ( 31. ) There was a learned discussion as to how in America a person can be deprived of his liberty only by judicial process by reason of the ....
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....as not meant only to apply to detentions made after that date. It was argued by the learned Counsel who appeared in this group of applications that by virtue of the very orders of detention their clients obtained a right to apply under a. 491, which right they characterised as a vested right. The argument was sought to be supported by a reference to Section 8, els, (d) and (0, Madras General Clauses Act, 1 of 1891 which provides that: Where any act to which this Chapter applies repeals any other enactment, then the repeal shall not affect any right accrued...under any enactment so repealed ; or affect any...remedy in respect of any such right.... This is, however, answered by the decision of the Privy Council in Abbott v. The Minister of Lands, (1895) a. c. 425 : (64 L. J. P, C. 167) where it was held that a mere right existing at the date of a repealing statute to take advantage of the provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause in an interpretation statute. In any event, as I have already indicated, there would be no content whatever for the words 'persons deemed to have been detained under the Act' i....
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....te arguments in. regard to the nature and extent of the jurisdiction of the High Court and of the Superior Courts generally in dealing with application challenging the legality and propriety of detentions under statutes similar to Madras Act I [l] of 1947. One preliminary observation must here be made. The challenge in every one of the cases involved in the batch of applications before an is a challenge against the order of detention itself and not that even if the order was valid at its inception the continuance of the detention has become illegal or improper in view of what happened subsequently or by reason of what . the Government subsequently did or failed to do. I say this merely to guard myself against heve understood as having decided anything -more than what is strictly required by the applications under consideration. ( 35. ) The broad division of the application into two categories, namely, (l) these which were filed before 25th May 1948, and (2) these which were filed thereafter has, as already been indicated, to be borne in mind in determining whether there is any and i so what difference in our jurisdiction in dealing with each of the two groups. If Section 4 of th....
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....ed in by Zafrullah Khan J. was reversed by the Privy Council in The King Emperor v. Benoari Lai Sharma and others , the Privy Council agreeing with the views of Eowland J. of the Federal Court and of Derbyshire C. J. and Ehundkar J. of the Calcutta High Court in regard to certain question which have no bearing on the point now under discussion; there is, however, no disagreement expressed by the Privy Council with what Varda -chariar Off. C. J. and Zafrullah Khan J. Btated on this particular aspect, namely, the real scope and bearing of the provisions of the Ordinance on the jurisdiction and powers of the High Court. ( 37. ) In Basantha Chandra Ghose v. The King.Emperor (1944) 7 P. L.J. 203 : A.I.R. (3l) 1944 P. C. 86, Sir Patrick Spens C. J. who delivered the judgment of the Federal Court first quoted the language of Section 10(l) of the Restriction and Detention Ordinance In [3] of 1944 which was in the following words: No order made under this Ordinance and no order having effect by virtue of Section 6, as if it had been made under this Ordinance, shall be called is question in any Court, and no Court shall have power to make any order under Section 491, Criminal P. ....
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....tary of State had not reasonable cause to believe or did not believe' that it was necessary to detain the person. Some reliance was placed by the learned Advocate -General on the judgment of the Federal Court in Birpal Singh v. The King Emperor 1946 F.C.R. 21 : A.I.R. (33) 1946 P. C. 2: 47 Cr. L. .T. 583), as supporting his contention that the jurisdiction under Section 491 is altogether excluded. The Federal Court was there dealing with an application under Section 491 by a person who was detained under the Bengal State Prisoners Regn. Ill [3] of 1818) which is one of the Regulations referred to in Sub -section (3) of Section 491. In rejecting the application, the Federal Court made certain observations which may, at first sight, seem to go so far as to hold that if the Government claims to have passed an order under the provisions of that Regulation there is no more jurisdiction in the High Court under Section 491, to consider any matter arising out of or in.relation to the detention. If the judgment of the Federal Court is to be so read, it may seem to be in conflict with the view expressed by the Federal Court in Basanta Chandra, Ghose's case , On a close readi....
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....e the following: Once the Court is satisfied that a person is being: detained under Rega. Ill, there is no jurisdiction under Section 491, which the Court can exercise in the matter. and again. In our judgment the material question in this case is: is the appellant a person detained under Regn, III? If he is, his application must fail. ( 40. ) In the light of what I have already said, I am not inclined to regard these observations as -excluding the preliminary jurisdiction of the High Court to decide, if the contention should be raised, whether the order was not in fact made by the concerned officer or autherity, and did not represent his or its belief, and secondly, whether the order constituted a fraudulent exercise of the -power. These questions are concerned with ascertaining whether the order under challenge is really one made by the concerned individual or body of individuals under the statutory power conferred on him or them. They are in a sense preliminary or collateral questions and seek to decide whether the order could at all be said to be one under the relevant statute. If these question are decided adversely to the detenu we reach the position that the orde....
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....eed in holding that a mere recital in the order that the Provincial Government is satisfied to the effect stated in Section 26 cannot prevent the Court from enquiring into its accuracy and if there is sufficient material, from coming to the conclusion that the recital is inaccurate theugh the presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence to controvert it. There is a presumption attaching to an order regular on the face of it that it has been properly made; but this is a rebuttal presumption. Eelying on Liversidge v. Anderson 1942 A. C. 206 : (1941 -S ALL B. Rule 838) and Greene v. Secretary of State for Home Affairs, 1942 A. C. 284 : 1941 -3 ALL E. Rule 388 the Federal Court held that the Court could enquire whether there was not any consideration by or any satisfaction on the part of any properly autherized person before the orders for detention1 Were made. ( 41. ) The judgment of the Judicial Committee in Sibnath Banerji's case , approves of the judgment of the Federal Court in the above respect. It was maintained for the Crown before the Privy Council 'that the orders being, on their face regular and in....
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....4 : 1941.3 ALL B. R,88. The first of these was concerned with Eegn, 14B, Defence of the Realm (Consolidation) Regulations, 1914 issued under the Defence of the Realm (Consolidation) Act of 1914, 8.1, Sub -section (l). The regulation empowered the Secretary of State to order the internment of any person of hostile origin or association where on the recommendation of a competent naval or military autherity it appears expedient for securing the public safety or the defence of the realm. The other two decisions arose out of orders of detention under the Defence (General) Regulations, Eegn. 183, issued under the Emergency Powers (Defence) Act 1939. Section 1, Sub -section (l), para. (1) of the regulation was in the following terms: If the Secretary of Stats has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, be may make an order against that person directing that be be detained. By para (8) 'Any person detained in pursuan....
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....y of judicial opinion that the order should have been made in good faith by the officer or autherity concerned, the bona fides of the order being presumed. There are several references to this in Liversidge's case, 1942 A. 0. 206 : (1941.3 ALL E. B. 338), Greene's case, 1942 A. C. 284 : (1941 -8 ALL B. Rule 388) and in Sibnath Banerjes's case, 1915 -8 F.L.J. 222 : (A.I.R. (32) 1945 P. c. 156). In Halliday's case, 1917 A, C. 260 : (86 L. J. K, Rule 1119), Lord Wrenbury states that the statutory autherity must be exercised honestly. It may be difficult for the detenu to establish the absence of bona fides, but it cannot be doubted that it is a ground of challenge which is open to him where he can, for instance, show that the order was not issued in the public interest but was actuate -ed by personal malice or spite or is the result of political animosity. (6) Negatively it can be said that the suffioien -cy of the available material or information to justify the order of detention and the question whether the officer concerned could be said to have reasonable grounds for the issue of the order in question are not matters which are within the cognisance of the Court. T....
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....hese applications will have to be dealt with accordingly. ( 46. ) Govinda Menon J As the facts and circumstances that led to the hearing of these petitions by this Full Bench have been exhaustively considered by my Lord the Chief Justice and my brother Govindarajachari J., I need not set them out at any length: but in view of the importance of the constitutional subjects arising for decision and the elaborate arguments addressed to the Court, I may as well state shortly in my own words the reasons for my concur, race with the judgments now delivered. As a preliminary step, the learned Counsel appearing for the various petitioners have contended that Madras Ordinance II of 1948 promulgated by H. E. the Governor of Madras on 95th May 1948 is ultra vires, because the necessary prerequisites for the validity of such a law not only do not exist, but that the essential conditions precedent to the promulgation of such an ordinance have also not been complied with. Theugh no specific autherity has been cited before the Court, it can be clearly assumed, that after the 15th August 1947, the position of the Governor, vis -a vis the Counoil of Ministers, is that he acts entirely as....
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....he Governor is satisfied that immediate action is necessary foe the purpose of amending the Madras Maintenance of Public Order Act of 1947 and that the instructions of the Governor. General have been obtained in pursuance of the proviso under Section 88 (l), Government of India Act, 1935, The correctness of these recitals can -act be questioned before this Court witheut any material to prove the contrary. Keferenco was also made to Sub -section (4) of Section 51, Government of India Act, 1935, for negativing the contention of the petitioners regarding the absences of advice by the Council of Ministers. According to this sub -section, the question whether any, and if so, what advice was tendered by the Ministers to the Governor shall not be inquired into in any Court. Further the learned Advocate.General brought to our notice that theugh the Madras .Legislature was in session till 2ith May 1948, the last day on which the Madras Legislative Assembly met was on 28th April 1948 after which the Assembly was adjourned sine die. The,, last meeting of the Legislative Council prior to the promulgation of the Ordinance was on 3rd May 1948, after which this House was also adjourned sine die. ....
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....roved, to have been properly made and the requisite as to the belief of the Secretary of State wa. 3 complied with. It cannot also be successfully contended that since the Ordinance does not make mention that the instructions of the Governor -General have not been obtained under Section 107, Govern -of India Act, the Ordinance in so far as it affects, the existing law is ultra vires. The fallacy in the line of reasoning is that 3.107 deals with an Act and since an Ordinance has all the essentials of an Act, it is unnecessary to make specific mention of Section 107 at all. In the face of express provisions contained in Sub -section (i) of Section 51, Constitution Act, we will not be justified in embarking upon an enquiry as to whether the Council of Ministers ever met at all or that any advice was tendered to tup Governor even if they met, on what that advice was. If this Court is precluded from investigating whether any advice was tendered, it necessarily follows, that the contentions regarding the ultra vires nature of the Ordinance on the ground that no advice was tendered to the Governor cannot be accepted. It is also in my opinion not within the province of this Court ....
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....ral in Council v. The Province of Madras (1945) 1 M. h. J. 225 : (A.I.R. (32) 1343 P. C. 98) were referred to. In these decisions, their Lordships of the Privy Council have held that the lists in sob. 7 are be und to overlap from time to time, that it is not possible to make a clean cut be twe on the powers of the various Legislatures and, therefore, the existence of a concurrent list has made it easier to distinguish between these matters which are essential in determining to which list the particular provision should be attributed and these which are merely incidental. They further point out that it is possible that the Provincial Legislature may invade into the realm of the Federal Legislature and the provisions of a particular statute may advance, therefore, into the Federal territory as to show that its true nature is not concerned with provincial matters; but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is a provincial subject or a federal Subject. If that question is determine', then the Act falls on one or other side of the line and can be seen as valid or invali....
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....within the purview of a provincial lid even though it trenches upon some incidental or ancillary matter in the concurrent lift, that part of the legislation which trenches upon fiectinnurrent list is invalid or inoperative. Moreover, the conflict in these cases was between Lists I and II and not between Lists II and III. It baa farther to be observed that aub -8. (l) of 8.107 is subject to sub -a. (2) as is specifically mentioned therein. Sub -section (i) is in the nature of a proviso to Sub -section (l) and, therefore, one has to consider the matter by a joint application of be to the sub -sections together and mot by applying the provisions of sub -s, (l) alone literally. ( 51. ) It is next contended that Sub -section (2) alone its to be taken into consideration and then also Section 16A is repugnant and, therefore, void. The argument is that the entire Ordinance cannot be said to deal with a matter in the concurrent list but only a portion of it, and, therefore, Section 107 (2) baa no application, This argument overlooks the important circumstance that the word 'Provincial Law' does not necessarily mean the whole of the Provincial Law. The learned Counsel admitted tha....
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.... that Section 561A does not enlarge the powers of a criminal Court just as Section 151, Civil P. C, does not add to the powers of a civil Court. The question has to be viewed in the light of other relevant provisions of the Criminal Procedure Code. ( 53. ) It seems to both at the act of issuing a writ is the exercise of a power of jurisdiction and not the strict following of a specific procedure and I would uphold the contention of the Advocate -General to that extent. ( 54. ) The applicants have invoked the jurisdiction of this Court to issue directions in the nature of habeas corpus only under 8. 491, Criminal P. C. It cannot be disputed, therefore, that the power of this Court to issue the writ is to be ascertained from the jurisdiction vested under Section 491, Criminal P. C. What enables the High Court to take action, where a person is illegally or improperly detained within the limits of the appellate jurisdiction of the High Court, is the direct result of the jurisdiction and power conferred by Section 491. Such being the case, in my opinion, such power or jurisdiction is a matter about which the Provincial Legislature has power to legislate. The old Supreme Court;, on....
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.... in the Provincial List; and the learned Judges have observed that merely because the Civil Procedure Code contains certain provisions relating to the jurisdiction and powers of Courts, it does not follow that Civil Procedure in the concurrent legislative list includes everything relating to the jurisdiction and powers of Courts, So to hold would be completely to wipe out the Eecond entry in the Provincial Legislative List. It is true, that where a subject matter might fall either in the concurrent legislative list or in the Provincial Legislative List, Section 100 makes the former the dominant list; but this principle cannot apply where the result would be to rob the Provincial entry of all its context. The learned Judges further observe following a decision in In re Marriage Legislation in Canada, 1912 a. o. 880 : (81 L, J. Rule 0 237) that 'Civil Procedure' in the concurrent legislative list must be held to exolude matters relating to the jurisdiction and powers of Courts since special provision is made for these matters elsewhere in the list. The provisions in the Civil Procedure Coda whether they are Civil Procedure in tee limited sense or not are of course specificall....
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....overnment of India (Adaptation of Indian Laws) Order, 1937, reference to the Governor -General Clause 44, Letters Patent, refers to all other competent autheritie3 including the Provincial Legislature. The clauses of the Letters Patent can therefore be altered by the Provincial Legislature. It follows therefore that Section S93, Constitution Act, wa3 wide enough to cove1 Letters Patent as a law and the proper authority to legislate is the Provincial Legislature. Ex Concession the issuing of a writ of habeas corpus is included in either Clause s of List. No. 2 or in Clause 2 of List no. 3 and it cannot be said that Clause 44 is a bar to the promulgation of the Ordinance. ( 56. ) Before leaving this topic, it is necessary to advert to another really desperate argument advanced on behalf of the petitioners, and that is, that in the alternative the power to issue directions in the nature of a writ of habeas corpus is a matter not enumerated in any of the lists in Sch. 7 to the Constitution Act, but is a residuary power and therefore according to Section 101 of the Act such residual powers of legislation are vested in the Governor General who may empower either the Dominion Legislatu....
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....d it has granted a certificate permitting the filing of such Letter Patent appeal, was held to be not retrospective in order to affect appeals in suits which had been died before the amendment. The institution of a suit carries with it the implication that all .appeals then in force are preserved to it through the rest of its career unless the Legislature has either abolished the Court to which an appeal then lay or has expressly or by necesaary intendment given the Act. a retrospective effect. If the right to file an appeal cannot be impliedly taken away by construing the law as having a retrospective effect, a fortiori it follows that that right to get one's illegal detention set aside cannot also be taken away, To this aspect of the case the contention on behalf of the Crown is that that Section 16 a expressly applies to all pending cases or at least by necessary intendment applies to such oases. The learned Advocate General points out that the words 'shall apply to any person detained or deemed to have been detained under Section 2 of this Act' make it clear that all persons whose liberty has been curtailed by applying the provisions of Section 2 of the Act or who a....
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.... A, I. R. (30) 1943 Cal. 877 at pp. 390 and 391 : 208 I. C. 493 (S.B.) Milter J., considered the effect of an Ordinance as affecting pending proceedings. Theugh the learned Judge held in that case that the illegal detention was later on validated by the Ordinance, his general observations can be read only as laying down that unless there is an express provision, retrospective operation cannot be given to be Ordinance like the one he was consider, dig. He also expressed the opinion that where the statute gave its provisions retrospective operation in express terms it would be a matter for consideration how far the retrospective operation extended and whether pending actions were intended to be affected by it and therefore the question finally resolveB itself into a matter of construction, theugh express words are not essential. I do not gee how this decision help3 the contention of the learned Advocate -General. The other decisions relied on by him vis. Mukherjee v Mt. Bam Ratan Kuer and The United Provinces v. Mt Atiqa Begum, (1940 P. c. It 110 at p. H2 : A.I.R. (28) 19 -11 F. c. 10 do not carry this contention any further. In the former case, their Lordships found that a. 2G(N), B....
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.... their right to invoke the powers of this Court to i33uo a writ of Habeas Corpus, if their detention is found to be illegal or improper, Toe question .as to what the powers of this Court are in the absence of Section 16 -A and with it in the statute will be considered later. The only point now to be decided 13 whether Section 16.A debars the petitioners from filing the applications after 25th May 1948, and the Court from hearing them, Toe petitioners put forward the plea that theugh their applications reached the High Court only after 25th May 1948, they had been despatched from their places of detention by the respective petitioners gome days before the promulgation of the Ordinance andthat the delay caused in transit or occasioned by the action of the executive autherities should not prejudice them. There is no allegation that their applications were fraudulently or wantonly withheld until the Ordinance was passed. Theugh it was very feebly suggested that the executive autherities withheld the transmission of these applications to the Advocates till the Ordinance was promulgated, no attempt whatever has been made to substantiate such a suggestion, I am definitely of opinion that ....
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....ered and discussed. As against the above line of autherity, Mr. K. Krishnamurthy appearing or the petitioners in one of these petitions relies upon the observations of the Court of Appeal in Hough v. Windus (1884) 13 Q. B. D. 224 : 53 L, J. Q. B. 165). In that case what happened was that before the enactment of Section 146, Bankruptcy Act of 1883 and in accordance with the law as it stood, a sheriff had entered into possession and seized the goods of the defendant under a writ of elegit at the suit of the plaintiff, a judgment, creditor of the defendant; but no delivery of the goods had been made to the plaintiff at the time the Bankruptcy Act. became law. It was held by the Court of Appeal that the Bankruptoy Act. of 1883 had not deprived the plaintiff of his right to the delivery of such goods, even theugh the writ of elegit had ceased to exist as a result of the Act. On the analogy of the principle stated here, learned Counsel wants the Court to say that the right which the petitioner had, to apply for a writ of Habeas Corpus before th& promulgation of the Ordinance cannot be taken away by Section 16 -A. I am unable to apply the analogy to this case for unlike the ease in the....
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....ubject to the implied exception that they were not to extend to such vested rights to sue which were to continue subject to the rules of limitation in force at the passing of the Act. These decisions proceed upon the rule of law that where there is a vested right of suit it cannot be impliedly taken away by an enactment. Such abolition of a right of suit must be in express terms or by necessary intendment. It seems to me that the principles of law discussed in these cases as well cannot be applied to the present petitions. The whole question is whether the petitioners have a vested right to avail themselves of S, I9l even if they do not move their little finger or take any steps in that direction. Certain observations in the judgment of Fazl Ali J. in Banwari Gope v. King -Emperor, 22 rat. 175: U. i. r. (30) 1943 pat. 18: u or. L. J 273 (P.B.)) tend to show that in the the case of criminal proceedings instituted against a person, he is deemed to have a right of appeal vested in him in accordance with the law existing on the date when the criminal proceedings were instituted. By implication it can be inferred from this decision, that in order that a right might be vested in an indiv....
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....ic Order Ordinance, and sub -s (3), says that where any order as is referred to in suRs. (1)purported to have been made and signed by an autherity in the exercise of any power conferred by or under this Act. the Court shall presume that such order was so made by such autherity. There ha3 been a large body of case -law in the Indian High Courts as well as in the Federal Court on a similar and analogous subject, viz,, the provisions of the Defence of India Act and the rules thereunder. Most of these decisions refer to the well known decisions of the Hou3e of Lords in Liversidge v. Sir John Anderson 1942 A. o. 206 : 1941 -3 all E. b. 338 and Green v. Secretary of State for Home Affairs 1942 A. a. 284 : 1941. 3 all E. B 388. In the earlier of them, the House of Lords had to consider whether the ap -licant who was detained by the Home Seoretary under Begn. 18B of the Defence (General) Be -gulations of 1939 was entitled to get the parti -culars of the reasons of his detention from the Home Secretary and in tne second case it was an application for a writ of habeas corpus by a person detained under the same Begulation, The House of Lords by a majority held in the first case, (Lord Atkin d....
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....ty in many respects between the above two provisions and B. 18 -B, Defence (General) Regulations of 1939. They are in many respects' tn pari materia, theugh not ad idem. One can safely assume that Begulation 18 -B is the parent of similar provisions of law, either enacted or promulgated in India. Now, the words used in Regulation 18 -B are 'Has reasonable cause .to believe' and these in Section 2 of Madras Act I tl] of 1947 are 'if satisfied that....'These two expressions denote the same state of mind and are not intended to express anything different from each other and such being the case the decisions on the interpretation of B. 18.B of Defence (General) Regulations as well as on R, 26, Defence of India Rules are very helpful in deciding this question. There is the further circumstance that 8.16 (1) of Madras Act I [1] of 1947 is worded practically in the same terms as Section 16 (l), Defence of India Act with a very minor addition (viz) 'deemed to have made....' The construction of Section 16(1), Defence of India Act, and B. 26, Defence of India Rules came up for decision finally before the Privy Council in Emperor v. Sibnath Banerji and the Judi -ci....
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....the powers which this Court possesses when Section 16 -A of the Ordinance is found intra vires. The principles of law that emerge from this decision are, (i) that it is open to the detenu to show that the order of detention was not in effect made by the autherity empowered to make it, or (2) that it was a fraudulent exercise of the power by the autherity, or, (3) that the detenu was not the person intended to be affected or lastly (4) that the autherity which made the order did not act in good faith. In other words the order must be in proper exercise of the powers conferred by the statute and not in a colourable exercise, nor should the order bothe result of bad faith on the part of the autherity, It should also not be an abuse of the powers conferred under the Act, or for the pur -pose of effecting a fraud on the Act. Consistently with these principles good faith on the part of the order -making autherity is presumed until the contrary is proved and a mere challenge by the detenu is not sufficient to shift the onu3 on the autherity. ( 64. ) In my judgment, the above principles are well established from the decisions cited, and they are fully applicable to Madras Act, I [l] of ....
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....investigate whe. ther there was any colourable exercise of power or whether it was made in bad faith or in abuse. of the powers conferred under the Act, but with the addition of 8.16 -A of the Ordinance the above limited powers are not in any manner reduced. But it is not open to the Court to find out whether the grounds on which Provincial Government is satisfied are sufficient. Different standards of satisfaction are likely to exist in the case of different individuals, even if the society were ideal. In the society as it is constituted to -day, we cannot expect the same standard in every individual, so that if the executive autherity states bona fide that it is satisfied, this Court cannot say that it is not a proper or valid satisfaction, It is interesting to note that under the Defence Regulations in England, there was no provision either like Section 16, Defence of India Act, or like Section 16 or 16 -A of the Madras Act and Ordinance. Even, then, the House of Lords held that it was not open to the Court to go behind the satisfaction of the Homo Secretary. In my opinion, these are principles de -decible from a discussion of cases of the highest autherity so far as th....