Authored By : Mitter, Khundkar, Sen

Mitter, J.

1. The nine persons on whose behalf applications underSection 491, Criminal P.C. have been made before us by their relations havebeen 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 March1943. Those applications were made on 24th April 1943 after the Federal Courthad 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 toshew cause why the said persons should not be released, Those rules came on forhearing/before us on 7th May 1943. At an early stage of the hearing, seven outof the nine detenus applied to us to give them facilities to swear affidavitsin jail. We granted their prayer. They swore affidavits and those affidavitshave been put on the record with liberty to the Crown to file affidavits inanswer. Another affidavit sworn by Dr. Nalinaksha Sannyal, a member of theBengal Legislative Assembly and a first cousin of Sasanka Sekhar Sannyal, oneof the detenus, was put before us. The Crown objected to the reception of thataffidavit but we overruled that objection and directed that affidavit to be puton the record, the Crown being given liberty to file an affidavit in answer. Atthe time when we admitted Dr. Nalinaksha Sannyals affidavit we intimated thatwe would give reasons in our judgment for admitting the said affidavit.

2. At the time when Dr. Nalinakshas affidavit was put inthe advocates for the petitioners stated that as that affidavit embodied onlythe proceedings in the Legislative Assembly which would be relevant in all thenine cases before us it would be a needless repetition to file affidavits ofexactly the same nature in the other eight cases. They ; accordingly prayedverbally 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. NalinakshaSannyals affidavit may be allowed to be used in all the nine cases which wewere hearing together. To that course the learned Advocate-General did notobject and we allowed the prayer. The Crown has put in an affidavit in answeraffirmed by Mr. Porter, who at all material times had been the AdditionalSecretary in the Home Department of the Government of Bengal, to meet theallegations made in the affidavits of the, seven detenus and those made in theaffidavit of Dr. Nalinaksha Sannyal. The orders passed on the nine detinuesunder Rule 26 have been produced by the Crown for our perusal. True copies ofthose orders have been put on the record. After the decision of the FederalCourt in Keshav Talpades case,1 the Governor-General has, on 28th April 1943,made and promulgated an Ordinance (Ordinance No. 14 of 1943, hereafter to becalled 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 necessaryfurther to amend the Defence of India Act, 1939 (35 of 1939) for the. purposehereinafter appearing;

Now therefore in exercise of the powers conferred by Section72, 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 thefollowing Ordinance:

1. Short title and Commencement - (1) This Ordinance may becalled the Defence of India (Amendment) Ordinance, 1943. (2) It shall come intoforce 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 ofIndia Act, 1939 (35 of 1939), the following clause shall be substituted, andshall be deemed always to have been substituted, namely:

(x) the apprehension and detention in custody of any personwhom the authority empowered by the rules to apprehend or detain as the casemay be suspects, on grounds, appearing to such authority to be reasonable, ofbeing of hostile origin, or having acted, acting, being about to act, or beinglikely to act in a manner prejudicial to the public safety or interest, thedefence of British India, the maintenance of public order, Sis Majestysrelations with foreign powers or Indian States, the maintenance of peacefulrelations in tribal areas or the efficient prosecution of the war, or inrespect of whom such authority is satisfied that his apprehension and detentionare necessary for the purpose of preventing him for acting in such, prejudicialmanner, the prohibition of such person from entering or residing or remainingin any area, and the compelling of such person to reside and remain in anyarea, or to do or abstain from doing anything.

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

3. The underlined (here italicized) portions of Section 2 ofthe 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 Ruleswas 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 pronouncedRule 26 to be ultra vires was cut away. To regularise the detentions that hadbeen made in the past by orders made under Rule 26 and to prevent the legalityof those orders for detention being challenged in Courts the amendment wasgiven retrospective operation and Section 3 of the Ordinance was enacted withthe same purpose in view. The Crown pleads this ordinance in answer to theclaim 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 andamended forms, is ultra vires the Indian Legislature. (2) That the portion ofClause (x) of Section 2(2) of the said Act, which has been added by theamendment made by the Ordinance is ultra vires the Indian Legislature andaccordingly of the Governor-Generals powers under Section 72 of Schedule 9.The corresponding portions of Rule 26 of the Defence of India Rules are bad andconsequently the orders of detention in the cases we have before us are bad. Inaddressing their arguments on the first point the learned advocates appearingfor the petitioners proceeded upon the assumption that ordinance 14 of 1943 isa good enactment. (3) That the Governor-General has no power to repeal or amenddirectly any Act of the Federal Legistature by an Ordinance made andpromulgated 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 oramend an Act of the Central Indian Legislature passed under the provisions ofSection 102, Government of India Act. (5) That the Governor-General has nopower 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-Generalhas no power to give retrospective operation to such an ordinance. (7) That inany event the ordinance (14 of 1943) cannot affect proceedings which werepending 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 saidOrdinance and must stand or fall with that section. (9) That Rule 26, Defenceof India Rules, had no existence in the eye of law on 29th September 1939, whenthe Defence of India Act was passed and so does not exist even now either inits original or amended forms. (10) That even if Rule 26 be ultra vires thedetention of the nine persons, whose cases are before us was improper.

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

5. In Talpades case the Federal Court has decided that theDefence of India Act is not ultra vires the powers of the Central IndianLegislature, that most of the matters covered by the general words in Section2(1) as well as by the more precise provisions set out in Sub-section (2) withits 35 paragraphs are covered by Lists I, II and III of Schedule 7, Governmentof India Act. That judgment also indicates that preventive detention for thedefence of British India being in item 1 of List I, the Central Indian Legislaturewould 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, waspronounced to be bad, has now been supplied by ordinance 14 of 1943. Neitherthe Federal Courts judgment nor the amendment made by the said ordinance,however, concludes this point by reason of the form in which it has been urgedbefore us. For the purpose of dealing with this point I would assume thatordinance 14 of 1943 is a good enactment, and that Section 2(1) and inparticular Clause (x) of Section 2(2), Defence of India Act, both in itsoriginal and final shape, includes matters which are in List I and List II, andnone 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 underSection 102, Government of India Act, the Central Indian Legislature no doubtacquires the power to legislate on matters enumerated in List II, but then itcan legislate on those matters for one Province at a time, that is to say, onesuch Act cannot comprise more than one Province, and (b) in any case it cannotin one enactment include in an inseparable manner matters coming in List I andList II. These two questions depend solely upon the interpretation of Section102, Government of India Act. The questions raised are of first impression. Ican at once say that I cannot accept those contentions.

7. For deciding the points raised, Sections 99(1), 100 and102 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. Itmeans the Governors Province and does not include the areas under the administrationof Chief Commissioners. Section 100, Sub-section (4) has an important bearingon the construction of the phrase, "to make laws for a Province" usedin Section 102(1). It is on this phrase only that the first part of thecontention of the petitioners advocates is based. Leaving out of considerationBritish Baluchistan, which is specially dealt with in Section 95, the CentralIndian Legislature has powers to legislate in respect of matters covered byList II for all areas not comprised in Governors Provinces, Rule g. for theChief Commissioners Provinces apart from the provisions of Section 102. Apartfrom Section 102, it cannot legislate on matters coming within List 11 for theGovernors Provinces. Section 99(1) defines the local extent of Acts passed bythe Central Indian Legislature (= Federal Legislature during the transitionalperiod), and Section 100 distributes between the Centre and the Provinces thesubjects of legislation. The phrase "make laws for a Province" usedin Section 102(1), accordingly does not mean "make laws for one particularProvince at a time." That phrase had to be used in Section 102(1) becauseof the language employed in Section 100, Sub-section (4). The real effect ofSection 102(1) in my judgment is to destroy the separation of thesubject-matter of legislation in regard to Governors Provinces, which had beencreated by Section 100, Sub-section (3) on a grave emergency being declared bythe Governor-General. On such a declaration List 11 is to be regarded as partand parcel of List I and the Central Indian Legislature which has by virtue ofSection 99(1) the power to legislate over the whole of British India, wouldacquire the power to legislate over whole of the said area (which necessarilyincludes all the Governors Provinces) in respect of matters contained in ListII. There is thus nothing in the Government of India Act which would preventthe Central Indian Legislature from making one enactment which would haveoperation over more than one Governors Province.

8. In construing Section 102(1) I have already indicated myview that List II is fused, so to say, into List I on the declaration of graveemergency. If there was nothing more in the other parts of Section 102, theCentral Indian Legislature would have the power to legislate by one enactmenton matters of both those lists in an inseparable manner. It had from before thepower to legislate over the whole of British India, which covers the areasunder the administration of Governors in matters coming in List I and by reasonof the declaration of grave emergency it acquires the power to legislate inrespect of the matters mentioned in List II for areas included in GovernorsProvinces. To meet these conclusions the learned advocates for the petitionersrefer us to Sub-section (4) of Section 102. The argument is that an Act passedby the Central Indian Legislature on matters contained in List I has ordinarilypermanent duration. Unless the particular enactment expressly limits itsduration it would be on the statute book till expressly repealed by it. An Acthowever dealing with matters contained in List n passed by the Central IndianLegislature in pursuance of Section 102 would be of limited duration. Unlessthe proclamation of emergency had been approved by Parliament, such an Actwould last for one year from the date of the proclamation of emergency. Thepetitioners advocates say that if these conclusions are sound, and I hold thatthey are, after the expiry of a year from the date of the proclamation ofemergency a part of the enactment - that - which dealt with List I - wouldremain on the statute book and the other part that which dealt with subjectsmentioned in List II would cease to have effect, and if matters of the twolists were essentially and inseparably connected in substance in thatenactment, the part that would remain would be unworkable. They accordingly saythat as Parliament never intended such a result it must be held that theCentral Indian Legislature has no power to legislate on subjects of Lists I andII in that manner. The argument, in my judgment, is of no substance. Itproceeds upon an entire misconception of the provisions of Section 102,Sub-section (4). The Central Indian Legislature can say in express terms that aparticular enactment on a subject mentioned in List I shall have force for sucha limited period of time which it chooses. By combining the matters mentionedin 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 theenactment which bears upon the subjects of List I would cease to have effect atthe same time when the provisions of that enactment relating to mattersmentioned in List II would cease to have operation by virtue of the provisionsof Section 102, Sub-section (4). I accordingly overrule ground No. 1.

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

9. The amendment introduces detention for preventing aperson from acting in a manner prejudicial to the public safety or interest,the defence of British India, the maintenance of public order, His Majestysrelations with foreign powers or Indian States, the maintenance of peacefulconditions in tribal areas or the efficient prosecution of the war. Theargument is that defence of British India is not one of the subjects enumeratedin the Lists of Schedule 7, Government of India Act, and of the subjectsmentioned above "preventive, detention for reasons connected with publicorder" is the only subject enumerated in those lists, that subject beingone of the subjects mentioned in item 1 of List II. I am not convinced thatthis is correct. In the first place, I cannot say that Parliament kept away allmatters concerning defence of British India from the province of the IndianLegislatures. Items 1, 2, 3, 17, 29 and 30 of List I in some form or other havedirect relation to defence and war, and items 1 and 29 of List II and No. 34 ofList ill may in some circumstances have relation to those subjects. In thesecond place, the last part of item 1 of List I gives power to the CentralIndian Legislature to make laws dealing with preventive detention for reasonsof State connected with defence and external affairs. All that is required isthat there should be a connexion with defence. In my judgment, all the itemsmentioned in Section 2(2) Clause (x) as amended by the Ordinance are intimatelyconnected with the defence of British India. Efficient prosecution of this waris directly connected with the defence of British India, when Japan is almostknocking at the gate3 of India. On the maintenance of public safety, interestand public order, on the maintenance of His Majestys relations with foreignpowers or Indian States and on the maintenance of peaceful conditions in tribalareas, which border on British India, depend the effective prosecution of thiswar and so those matters are connected with defence of British India.

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

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

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

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

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13. The Central Indian Legislature derives its authority andpowers from Parliament. The Governor-General, who also derives authority fromParliament, exercises legislative functions on fulfilling the conditionsrequired by Section 72 of Schedule 9. Emergency gives him the power tolegislate for peace and good government of India. He then becomes a legislativeorgan. The same Act of Parliament gives him the power to legislate underSection 72, which gives authority to the Central Indian Legislature tolegislate. He cannot legislate on matters on which the Central IndianLegislature cannot legislate. The only difference is that an emergency mustexist (of which he is the sole, judge) before he can embark on legislation byordinance, and the legislation must be for the peace and good government ofBritish India. But whether the particular provisions which he chooses to enactwould promote peace or good government is a matter which is entirely within hisjudgment. The propriety of the particular piece of legislation cannot bequestioned by any outside body : Bhagat Singh v. Emperor . Buthe cannot act in excess of the powers conferred on him by Parliament. Subjectto what has been indicated above, he cannot make a provision in his ordinancethat the validity of its provisions or a particular provision therein shall notbe challenged in Courts of Judicature in India on the ground of ultra vires hispowers. Such a provision would be illegal and would be discarded by Courts, onthe 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 observationsin view of the provisions of Ordinance 14 of 1943 and by way of introduction.

14. On an emergency the Governor. General encroaches uponthe field of the Central Indian Legislature. The Ordinances made andpromulgated under Section 72 of Schedule 9 during the transitional period andthose 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 theCentral Indian Legislature, the Indian Legislature during the transitionalperiod and the Federal Legislature after Part II has come into operation. Thereis thus the possibility of an Ordinance made by the Governor-General on anemergency coming into conflict with an Act passed by the Central IndianLegislature. The learned Advocate-General argues, and I dare say rightly, thatwhen such a contingency happens, it must be held that the provisions of theOrdinance would prevail over these of the Act of the Central Legislature. Thereare two sound principles behind that contention of the learnedAdvocate-General. One is that where there are two legislative enactments havingthe same force and effect, the last in point of time must prevail. The otherprinciple is that the special enactment would prevail over the general. I musttherefore accept the contention that by creating a repugnancy theGovernor-General can destroy or mutilate an Act of the Central IndianLegislature by an Ordinance made and promulgated by him on an emergency. Thenext step in the argument of the learned Advocate. General requires carefulconsideration. It is, that when the Governor-General can indirect do away withor modify an Act of the Central Indian Legislature, there is no reason why hecannot directly, that is to say by the express provisions of his Ordinance,repeal or amend an Act of the Central Indian Legislature. The principle onwhich he stands using his words, is that an authority can do that directlywhich it can do indirectly. At first sight his contention would appear to be asound one, but on careful consideration I do not consider it to be so.

15. Where one legislative body seeks to do away with theenactment of another legislative body equally competent to legislate on thesubject by creating what appears prima facie to be a repugnancy, it isexclusively within the province of the Courts to decide whether in fact therepugnancy 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 : AIR1936Cal628is an illustration of the last-mentioned observation. In Attorney General forOntrio v. Attorney General for the Dominion of Canada 1896 A.C. 348 a casewhich I will deal with later on in some detail, Lord Watson dealing with an Actof the Dominion Parliament of Canada, which in express terms had repealed anAct of the Legislature of the Province of Upper Canada (Ontario), thesubject-matter of both the Acts being prohibition of the sale of wine andfermented liquors, laid down the law in the following words:

But the Dominion Parliament has no authority conferred uponit by the Act (The British North America Act, 30 Vict. Rule 3) to repealdirectly any Provincial Statute, whether it does or does not come within thelimits of jurisdiction prescribed by Section 92. The repeal of a Provincial Actby the Parliament of Canada can only be effected by repugnancy between itsprovisions and the enactment of the Dominion; and if the existence of suchrepugnancy should become a matter of dispute, the controversy cannot be settledby the action either of the Dominion or of the Provincial Legislature, but mustbe 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 TemperanceAct of 1886 was not within the authority of the Parliament of Canada.

16. In my judgment these observations would apply equally tothe case which we have before us. Repeal by repugnancy of the law made by onecompetent legislative body by another legislative body equally competent tolegislate on the same subject is one thing and direct repeal by the one of thelegislative enactments of the other is another thing. In cases of the firsttype the Court has jurisdiction to decide, but in the last type thatjurisdiction would be robbed. This, in my judgment, is a distinction of afundamental nature, which prevents applicability of the principle, that wherean authority can do away with a thing indirectly, it can also do away with itdirectly, to a case of the type which we have before us, a case where oneLegislature by its express provisions seeks to override the Act of anotherLegislature, both the Legislatures deriving their powers from the sameparamount Legislature and both being equally competent to legislate on thesubject. I go further and hold that the observation which I have quoted abovefrom Lord Watsons judgment lays down a sound general principle. In any eventthose observations would apply with the same force to the case before us.

17. The Constitution Act of Canada distributes the field oflegislation between the Dominion Parliament and the Legislatures of theProvinces by Sections 91 and 92. The Provincial Legislatures have exclusivejurisdiction to legislate on the sixteen subjects enumerated in section 92. TheDominion Parliament has exclusive jurisdiction to legislate on the twenty-ninesubjects enumerated in Section 91. As some matters falling within thetwenty-nine classes of subjects enumerated in Section 91 and the sixteen classesof subjects enumerated in Section 92 may overlap, by reason of the wide scopeof the enumerated subjects, the Act provides that in cases of such overlappingthe matter should be deemed to be outside the classes of subjects enumerated inSection 92. The Dominion Parliament of Canada has, however, a residualjurisdiction. It can legislate on any matter for the peace and good governmentof Canada which do not fall within the subjects enumerated in Section 92. Inthe matter of distribution of legislative functions, the Canadian constitutionis similar to the Indian constitution, except that the Central IndianLegislature has not the residual jurisdiction which the Constitution Act ofCanada has expressly conferred on the Dominion Parliament. The Central IndianLegislature cannot legislate on any matter not covered by Lists I and III, andof List II of Schedule 7, where it legislates in pursuance of Section 102. Iflegislation by the Central Indian Legislature on a subject not covered by thoselists becomes necessary the Governor-General has in his discretion to givepower to that Legislature by a notification issued under Section 104. This is adistinction between the Canadian and Indian constitution, but on the questionnow under consideration it is not a material distinction. The fact that inOntrio v. Attorney General for the Dominion of Canada 1896 A.C. 348 thequestion concerned an Act of the Dominion Legislature quoad an Act of theProvincial Legislature, in my judgment, so far as the question of principle isinvolved, is not also a matter of vital distinction. I will now analyse thatcase.

18. In 1864 the Legislature of the province of Upper Canada(Ontario) passed a Temperance Act which contained provisions prohibiting retailsale of fermented liquors within municipalities, townships and incorporatedvillages within that province. The Act was not to come into force in any suchlocal area, unless and until bye-laws were made upon the majority of theelectors 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 Actwas passed. The Union was established and the Dominion Parliament created. BySections 91 and 92 of that Act the legislative powers were distributed betweenthe Dominion Parliament and the Legislatures of the Provinces. The TemperanceAct of 1864 was in force in Ontario up to 1886, when the Dominion Parliamentpassed the Temperance Act of 1886 for the whole of the Dominion of Canada. Likethe Act of 1864 it contained provisions prohibiting the sale of fermentedliquors. There were differences in detail between the provisions of that Actand the Act of 1864. Those details are not material for our purpose. That Actwas to be not in force suo motu in any county, municipality etc., but had to beintroduced in any such area within the Dominion by following a proceduresimilar to the procedure laid down in the Act of 1864. Both the Acts wereoptional Acts, in the sense that it depended upon the will of the electors tobring them into active force in a I particular local area. The Dominion Act of1886, however, contained a section which expressly repealed the prohibitoryclauses 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 in1890 (53 Vict. C. 56) Section 18 of which in effect revived the prohibitionlaws 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 wasthe principal question in the case.

19. Lord Watson in delivering the judgment held that it waswithin the jurisdiction of the Dominion Parliament to enact the prohibitionclauses as enacted in the Temperance Act of 1886. He also held that the eParliament 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. Itdepended upon the construction of Sections 91 and 92, British North AmericaAct, 1867. On the assumption that the Dominion Parliament was competent tolegislate on that subject, namely, prohibition, and that the Parliament ofOntario could have legislated on the subject if the Dominion Parliament had notlegislated, Mr. Blake, who was contending against the validity of Section 18 ofthe Provincial Statute (53 Vict., C. 56), contended that after the legislationof the Dominion Parliament in 1886 on that subject, the Provincial Legislaturecould no longer legislate on the said subject. To support that contention herelied upon the doctrine of "occupation of the field" - whichembodies a well-established and general principle "of constitutional law.He argued that the Dominion Legislature by enacting the Temperance Act in 1886had completely occupied the whole field of "prohibition" in 1886 andthat the Provincial Legislature of Ontario could not in law thereafter enterthat field. This contention was examined by Lord Watson at page 366 of thereport. In my opinion, the position was this: The Provincial Legislature was onthe field - was occupying it - till the Canadian Temperance Act of 1886 waspassed, because the Temperance Act of 1864, was in force then in the sense thatit was on the statute book. The first necessary step in the occupation of thatfield by the Dominion Parliament would be the act of driving out the ProvincialLegislature from that field. That the Dominion Parliament purported to do byexpressly repealing the prohibition clauses in the Provincial Act of 1864. Ifthat repeal clause in the Dominion Act of 1886 was a valid piece of legislationthe Ontario Legislature would in law be driven out of the field by the DominionParliament, and the Dominion Legislature could occupy it completely. If howeverthat clause was beyond the powers of the Dominion Parliament, the OntarioLegislature would be still in occupation of the field. As the DominionParliament was found to be competent to enact the prohibition clauses ascontained in the Temperance Act of 1886 it validly occupied the same field, butunless the repeal clause in the Dominion Act was intra vires, the DominionLegislature would not be in complete or exclusive occupation of that field in1886. In law both the Legislatures would be occupying the same field after 1886.The Provincial Legislature of Ontario, would not, in that case, be absolutelydebarred from legislating on the subject, and the only material question wouldbe a question of repugnancy, if it chose to make enactments on prohibitionafter the Dominion Temperance Act of 1886. The question of repugnancy could besolved by the Courts only, and as there was no express provision in BritishNorth 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 theDominion Legislature and the Provincial Legislature are stated in the openingwords of the paragraph at page 366 of the report.

20. What I have stated above is a necessary background forunderstanding the passage at that page which follows the passage which I havequoted in the earlier part of my judgment. The point there was - and I havealready indicated how that point was a material point in that case - whetherone Legislature, in that case the Dominion Parliament, could by the expressprovisions of its statute and by sole force thereof repeal the provisions of astatute passed by another Legislature, in that case the Legislature of the Provinceof Ontario, both the Legislatures being equally competent to legislate on thesubject of prohibition and both deriving their powers from the same Act ofParliament, which had not in express terms conferred on one the power ofrepealing the Act passed by the other. That question was answered in thenegative. An argument was advanced that Section 129, British North America Act,had given in express terms the Dominion Parliament the power to repeal theProvincial Temperance Act of 1864. That contention was overruled and inconnexion with that contention Lord Watson made the following observations atthe bottom of p. 366 of the report:

It appears that neither the Parliament of Canada nor theProvincial Legislatures have authority to repeal statutes which they could notdirectly enact.

and then referred to Dobie v. Temporalities Board 7 A.C. 136These last-mentioned observations in my judgment were made on the matter ofconstruction of Section 129 of the Canadian Constitution and did not lay down ageneral proposition of law. Section 129 provided that all laws in force in theProvinces 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 shallcontinue 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 thisAct.

21. All that Lord Watson said in this part of the judgmentwas that according to the true construction of Section 129 the DominionParliament could not repeal or amend the Temperance Act of 1864, which, beingan Act passed before the Union, was continued by Section 129 in the Province ofOntario, as the Dominion Parliament could not have passed that Act for theProvince of Ontario only after the Union by reason of the provisions of Section92 of the Constitution Act of Canada.

22. The case before us is in essential features of the sametype. Both the Central Indian Legislature and the Governor-General exercisinghis functions under Section 72 of Schedule 9 derive their powers to legislatefrom the same Act of Parliament. Both are competent to legislate on items ofLists I and III, bearing upon peace and good government of British India. I amleaving out for the present List II subjects, for a question has been raised asto whether the Governor-General can by Ordinance made and promulgated underSection 72 encroach on any subject of List II. The Act of Parliament does notgive express powers to the Governor-General to directly repeal or amend an Actof the Central Indian Legislature. The observations of Lord Watson, which Ihave first quoted, would therefore apply with equal force to the case beforeus. I therefore hold that the Governor-General has no power to repeal directlyand in express terms any Act of the Central Indian Legislature. The power toamend stands on the same principle, for whereas repeal means the destruction ofthe whole, amendment means the destruction of a part, followed, may be but notnecessarily, by the creation of a substitute. I accordingly hold that Section 2of Ordinance 14 of 1943 is ultra vires the powers of the Governor-General.Apart from the reasons stated above the Government of India Act givesindications that such power was not intended by Parliament for theGovernor-General. In cases where either the Governor-General or the Governor isgiven the power to make what in substance are laws - either by Ordinance or byRegulation, 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 thepower to repeal or amend an Act of the Legislature. A reference to Sections92(2) and 96 read with Section 95(3), Government of India Act, supports theview I am taking. The last portion of Section 72 of Schedule 9 also indicatesthat where Parliament intended to confer such a power to a co-ordinatelegislative body, e.g., the Indian Legislature, it expressed itself in anunambiguous manner.

23. It only remains to consider the reasons given in thedecision 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 theRegistrar of the Madras High Court has supplied us with an authenticated copy.The judgment of the Allahabad High Court delivered on 30th April 1943 inEmperor v. Baldeva Dass Cri. Misc. Petn. No. 356 of 1943, where the validity ofOrdinance 14 of 1943 was also challenged is not helpful, for the point which Iam now considering was neither raised nor discussed.

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

25. The first proposition appears to me to have been statedin somewhat broad terms, but I am not building an argument on it. Section 72says that when an Ordinance is promulgated it will have the like force andeffect as an Act of the Indian Legislature. The Acts of both the bodies areplaced 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 isundoubtedly correct. The Governor-General has not been made a legislativeauthority subordinate to the Indian Legislature. But from these it would notnecessarily follow that as a legislative body he would have the power tonullify or amend directly the Act of an equally competent legislative authoritywith co-ordinate powers. The third proposition is in my judgment not a soundone. The thing has to be looked at from a positive aspect, and not from anegative one. It is not correct to say that one 1 legislative authority willhave 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 thepower to amend the Act of another legislative body, which stands on the levelwith itself, that power has to be conferred expressly by the paramountLegislature. I have already given detailed reasons for that proposition.Moreover no reference was made in the Madras decision to other sections of theGovernment of India Act, which throw light upon the question. I have alreadypointed out some of those sections.

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

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

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

28. In my judgment the phrase "for the purposeaforesaid" does not mean "for the purpose of meeting the graveemergency." That proviso means that if the Central Indian Legislatureintends to pass a law on a matter coming within List II, the previous sanctionof the Governor-General would have to be obtained. The phrase "for thepurpose aforesaid" means "for the purpose of making laws on mattersof the Provincial List." The proviso attaches a condition on the powers ofthe Central Indian Legislature in the matter of making laws in the exclusiveprovincial field. That section occurs in Part V which deals with legislativepowers of the Indian Legislatures-the Central and the Provincial. I cannot holdthat if the Governor-General had otherwise the power to repeal or amend an Actof the, Central Indian Legislature, that power would be taken away from him bythe proviso to Section 102(1) in respect of an Act passed by that Legislaturein pursuance of that section.

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

29. Section 72 of Schedule 9 has been bodily taken from theGovernment of India Act of 1915, which is no longer in force. Under theGovernment of India Act, 1915, the distribution of the legislative businessbetween the Indian and the Provincial Legislature was on a basis which isdifferent from the scheme in part V, Government of India Act, 1935. UnderSection 65 of the former Act the Indian Legislature could legislate for peaceand good government on all subjects not especially excepted by Sub-sections (2)and (3) of that section. The Provincial field was not absolutely demarcated asin the Act of 1935. But those distinctions are of no importance. Section 72 ofSchedule 9 of the Act of 1935 A being a part of the Government of India Act of1935 has to be construed with reference to other parts of that Act. Twoconditions contained in Section 72 require consideration. The first is that thepower of making ordinances "is subject to the like restrictions as thepower of the Indian Legislature to make laws," and the second is that theIndian Legislature can by an Act control or supersede the ordinance.

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

The declaration of "grave emergency" under Section102 gives the Central Indian Legislature power to legislate on matters"enumerated in List II during the limited period of six months from thedate of the declaration of emergency, unless Parliament in the meantime hadapproved the declaration of emergency. The law passed during this period willno doubt be in force for a further period of six months after the declarationof emergency had ceased to have force. But during this second period" ofsix months the Central Indian Legislature would have no power to legislate on aProvincial subject. If the Governor-General were to make and promulgate anOrdinance on a Provincial subject on the last day of the first period of sixmonths during which the Central Indian Legislature has power to legislate onsuch a subject, and beyond which period it has no such power, the CentralIndian Legislature would have no power by an Act to control or supersede suchan ordinance passed so late in the day. It is no doubt true that the provisionsof Section 102 imply that the Central Indian Legislature has power only duringthe first period of six months, which is the normal life of a declaration ofemergency, to legislate on provincial subjects, but I do not quite appreciatewhy that Legislature could not have power to amend and supersede (subject toSection 108(1)(b), Government of India Act, 1935) the Ordinance as long as theOrdinance has force and effect. A special power has been conferred on it bySection 72 of Schedule 9, and that power would exist as long as the ordinanceis 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 thisground.

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

31. Section 72 of Schedule 9 as it originally stood statedthat an ordinance would remain in force for six months from the date of itspromulgation. The limitation of six months does not apply to ordinancespromulgated 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 Section72 as it stood before the said amendment has an important bearing on thequestion. 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-Generalcould not give operation to an ordinance from a date anterior to the date ofits promulgation, for in that case he would be giving his ordinance a span oflife for more than six months. In the first place Section 72, as it originallystood, nowhere laid down that the maximum life of an ordinance was to be sixmonths. The section said that the ordinance will have operation for a period ofsix months from the date of its promulgation. To me it appears that if anordinance giving retrospective operation to its provisions had been passed at atime when Section 72 was unamended, the provisions, with its retrospectiveeffect, would have lasted for six months from the date of its promulgation. Iagree 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 differencebetween the period during which an ordinance remains in force and the periodover which acts of persons are affected by the ordinance. I overrule this pointalso.

(7). The ordinance cannot affect pending proceedings.

32. As the proceedings before us were pending when ordinance14 of 1948 was promulgated this question is an important one. A large number ofcases has been cited before us by both sides on this point. Most of theimportant decisions have been noticed and reviewed by Sulaiman andVaradaehariar JJ. in United Provinces v. Atiqa Begum and inthe decision of this Court in Punyendra Narain Deb v. Jogendra Narain Deb: AIR1936Cal593 . The first general principle which I deducefrom the cases is that the law existing at the commencement of an action or proceedingmust decide the rights of the parties and not the law that existed at the dateof the judgment or order. In Hitchcock v. Way (1837) 6 A. & E. 943 where anAct of Parliament was passed during the pendency of an action to recover moneydue 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 wouldbe applicable, but that contention was overruled by Lord Denman C.J. whoobserved that in the absence of any provision in the statute, that had beenpassed during the pendency of the action, the law as it had existed at the datewhen the action commenced must decide the rights of the parties. Cases wherethe statute under consideration uses No. words giving its provisionsretrospective operation are simple. There pending actions and proceedings wouldnot be affected. But where the statute gives its provisions retrospectiveoperation in express terms it would be a matter for consideration how far theretrospective operation extended and whether pending actions were intended tobe affected by it. The question finally resolves itself into a matter ofconstruction. In my judgment express words are not essential in order that astatute may apply to pending actions or proceedings. It is enough if thatintention can be inferred, and for ascertaining the intention of theLegislature not only the meaning of words used in the enactment but also theobject of the enactment must be kept in view. In fact the object of theenactment as gathered from its provisions would be a very important matter. InRex v. General Commissioners of Income Tax for Southampton, Ex parte Singer(1916) 2 K.B. 149 Lord Reading C.J. laid down the law thus:

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

33. In Quilter v. Mapleson (1883) 9 Q.B.D. 972 where thestatute in question did not in express terms say that its provisions were toapply to pending actions Sir George Jessel held the enactment to be applicableto 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 inthe words to prevent our doing so.

34. In my judgment it is on this principle that the case inK.C. Mukherjee v. Ramratan Koer has proceeded. The principleis, that if the object of an Act, and that object must be gathered from thewords of the enactment, itself requires that the Act should apply to pendingproceedings, it will be so applied, unless there is a saving clause in the Actitself to the effect that it would not apply to pending proceedings. In thelight of these principles we will have to examine Ordinance 14 of 1943. Theobject is plain. Clause (x) is to be in the form in which it is put in Section2 of that Ordinance from 29th September 1939, when the Defence of India Act waspassed. Section 3 of the Ordinance contemplates orders for detention that hadbeen passed in the past, and some of the orders for detention may have beenpassed soon after 29th September 1939. None of those orders made in the past areto be called in question on the ground that Rule 26, Defence of India Act, wasultra vires. If the words had only been that "no order shall be called inquestion" there could have been some room for saying that the Ordinancewas not intended to apply to pending proceedings, but to proceedings that maybe commenced in future. But there are the additional words : "No ordershall be deemed to be invalid." Those words make the object of theenactment clear. It attempts to validate all detentions under Rule 26 made eversince 29th September 1939. The Governor. General by his Ordinance says that noperson detained in the past under orders made under Rule 26 is to be releasedon the ground that the rule was bad. That being the plain intendment of theOrdinance, its provisions, if otherwise valid, would apply to pendingproceedings, as there is no saving of pending proceedings. I therefore answerthis question against the petitioners.

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

35. The argument of the learned Advocate-General is thateven if the amendment of Section 2(2), Clause (x), Defence of India Act, bySection 2 of the Ordinance is bad, Section 3 of the Ordinance stands and theorders of the detention on the persons before us cannot be challenged. I cannotaccept this contention. I have already held that the Governor-General cannotrepeal or amend an Act of the Central Indian Legislature. An Act is amended ifsome of its provisions are altered. It is also amended if some provisions areadded to its original provisions. I consider both Sections 2 and 3 of theOrdinance to be amendments of the Defence of India Act. The preamble to theOrdinance throws light on the matter and supports my view. That is one reasonwhy 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 9cannot amend an Act of the Indian Legislature. There is another reason why Ihold 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 thereinwere enacted. The doubt in my judgment would have arisen in the followingmanner, if Section 3 had not been enacted. By Section 2, Clause (x) of Section9(2), Defence of India Act, was amended with retrospective effect. Thatamendment would sustain Rule 26, Defence of India Eules, from 29th September1939, when the Defence of India Act was passed, but it could still be arguedthat the orders of detention made before 28th April 1943, when the Ordinancewas promulgated, were bad. To set at rest that point, Section 3 was enacted. Ido not wish to develop this point further, as it is dealt with fully in thejudgment of my learned brother Sen J. which I had the advantage of seeing. Iagree with the reasons given therein for coming to the conclusion that Section3 of the Ordinance cannot have an existence independently of Section 2. Iaccordingly answer this ground in favour of the petitioners.

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

36. Assuming Section 8 of Ordinance 14 of 1948 to be a goodenactment the petitioners can challenge Rule 26 of the Defence of India Ruleson any ground other than the ground mentioned therein. That position is clearon the terms of Section 8 of the Ordinance, and is moreover not contested bythe learned Advocate-General. The petitioners advocates attack Rule 26 on theground that it never had existence in the eye of law. For following thisargument the following facts are relevant. On 3rd September 1939 Ordinance 5 of1939 was made and promulgated by the Governor-General under Section 72 ofSchedule 9. Rule 26 of the Defence of India Rules was published on the samedate. 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 reproductionof Section 2 of that Ordinance. The substance of that rule as published on 3rdSeptember 1939 so far as it is material for the argument on this point is asfollows : Paragraph 1 gave the Central Government only the power to make, ifsatisfied, any of the orders mentioned in Clauses (a) to (g) of that paragraphon any person with a view to prevent him from acting in a manner prejudicial tothe efficient prosecution of the war, to the defence of British India or topublic order. Clause (b) provided for detention. Paragraph 2 gave theProvincial Government powers to make like orders on a person who was withinProvince with a view to prevent him from acting in a manner prejudicial topublic order only.

37. After the Defence of India Act had come into force thatrule was amended twice - once on 28th March 1940 by Notification No.356-O.R./40 and 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 Majestysrelations with foreign powers or Indian States the maintenance of peacefulconditions in tribal areas" after the words "public order" inpara. 1 was the result of the first-mentioned amendment and those words wereadded by the second amendment. Section 21, Defence of India Act, on which theargument 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 saidOrdinance shall be deemed to have been made...in exercise of the powersconferred by or under the Act as if this Act had commenced on 3rd day ofSeptember 1939.

38. The learned advocates for the petitioners contend thaton the reasons given by the Federal Court in Talpades case it must be heldthat 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 thepowers 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 theDefence of India Act 1939, was passed, and therefore could not be continuedthereafter by the force of Section 21, Defence of India Act. To emphasize thisargument reference was made to Section 24, General Clauses Act (10 of 1897) andour attention was drawn to the difference in the language employed there. Itwas pointed out that the language of Section 24, General Clauses Act, is not"made in exercise of powers" under the repealed Act or Regulationetc., but simply made or issued under the repealed Act or Regulation. Theargument does not however appear to me to be convincing. I do not see anysubstantial difference in these two phrases. In my judgment, Section 21 doesnot merely continue the rules made in pursuance of the powers given by theDefence of India Ordinance but continues then by re-enactment. What in fact hadexisted was continued-not merely what existed only as valid in law. Rule 26 asit then existed may have been ultra vires, but no Court had then pronounced itto be so. Moreover, a finding by a Court that a particular rule or bye law isultra vires does not remove it from the statute book, for Courts can onlydeclare a rule or bye-law to be void in order to give the substantive reliefasked 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 theview I am taking. Rule 26 as it existed before 29th September 1939 wasaccordingly a rule made in exercise of the powers under the Defence of IndiaAct, 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 andcould 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 usunder two heads : (i) that the authority or the person who is authorised todetain under Rule 26, Defence of India Rules, had not in fact been satisfiedthat the detention of the nine persons before us was necessary : and (ii) thatthe power of detention had not been exercised in the case of those persons in abona fide manner. In support of the proposition that Courts can investigatethese matters, two cases have been cited before us by the petitioners advocates,viz. Eshugbayi Eleko v. Officer administering the Government of NigeriaA.I.R.1931 P.C. 248 and Jitendra Nath Ghosh v. Chif Secretary to the Government ofBengal : AIR1932Cal753 . In the first mentioned case, thelegality of the expulsion of the Eleko by the executive authority of Nigeriaunder powers conferred by an Ordinance was challenged. It was held that theCourt was entitled to investigate as to whether the conditions on which theexecutive act of expulsion depended for its validity had been complied with ornot. In the cases before us, the act of detention of the nine persons is anexecutive act, which depends upon the condition that the authority designatedby Rule 26 is to be satisfied that the detention of the particular person wasnecessary for preventing him from doing acts of a prejudicial nature. TheCourts cannot enquire into the grounds of satisfaction or the sufficiencythereof but have certainly the jurisdiction to enquire as to whether thatauthority or person was satisfied as a matter of fact before he made the orderof detention. In the second case, the phrase "illegally or improperlydetained" occurring in Section 491, Criminal P.C. was construed. It washeld 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 Actor an abuse of the powers given by the Legislature." In Liversidge v. SirAnderson 1942 A.C. 206, the principle that a Court can look into the questionas to whether the power of detention had been exercised in a bona fide mannerby the executive in exercise of powers given to it by the Legislature wasre-affirmed, and it was stated if the Court was satisfied that it had not beenso exercised, it must give relief. These principles are, in my judgment, wellestablished.

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

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

And whereas the Governor has been satisfied that with a viewto preventing the said person from acting in a manner prejudicial to thedefence of British India, the public safety, the maintenance of public order orthe efficient prosecution of the war, it is necessary to make the followingorders 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, theGovernor is pleased to direct (a) that the said person shall until furtherorders be detained; (b) that until further orders the said person be detainedin...jail; and (c) that during such detention the said person shall be subjectto the conditions laid down in the Bengal Security Prisoners Rules, 1940.

By order of the Governor.

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

41. These orders have been authenticated in accordance withthe rules framed under Section 59(2), Government of India Act. The learnedAdvocate-General concedes that if the orders of detention had not been soauthenticated it would have been open to : Courts to investigate the questionas to whether the Governor was satisfied in fact on the general principles laiddown in Eshugbayi Eleko v. Officer administering the Government of NigeriaA.I.R. 1931 P.C. 248, but in the cases before us we must take the orders ofdetention 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 wasnot satisfied as to the necessity of detaining these persons, for in the orderthe Governor says that he was satisfied. In my judgment, this is not the effectof Section 59(2). That section prevents an order of the Governor dulyauthenticated from being challenged on the one ground specified in thatsubsection. No one can say that the order is not the order of the Governor andthat is all the effect of that sub-section, but he can certainly say that theGovernor was not in fact satisfied. The affidavit of Dr. Nalinaksha Sannyalcontains materials relevant to the enquiry as to whether the authority requiredby Rule 26 was in fact satisfied before the orders of detention were made underRule 26. It embodies the answers given by the Home Minister on the floor of theLegislative Assembly. Proceedings in Council ought to be proved by the journalsof the House, but the learned Advocate-General has waived the mode of proof. Hesays however that the answers given by the Home Minister are not admissible inevidence, and in support of his contention has referred us to the decision ofthe Judicial Committee of the Privy Council in Gerald Lord Strickland v.Carmelo Mifsud Bonnici In that case, to the plaintiffs claimfor damages for defamation, the defendant pleaded justification, and in supportof that plea proved some reports of the Legislative Assembly which contained aspeech 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 theirLordships opinion that they can only be evidence of what was stated by thespeakers in the Legislative Assembly, and are not evidence of any factcontained in the speeches.

42. I do not see in what way that case sup. ports thecontention of the learned Advocate. General that the answers given by the HomeMinister are inadmissible. Those answers were given in reply to written andsupple, mentary questions and were given by the Home Minister on behalf of theGovernment. The answers relate to facts and not to opinion, and those factsdirectly relate to the question as to whether any person or the authoritydesignated by Rule 26 was at all satisfied before making the orders ofdetention under Rule 26. The Crown does not say that the answers of the HomeMinister have not been correctly set out in the annexure to Dr. Nalinakshasaffidavit, 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, Iagree with his conclusions. But for the purpose of considering the questions oflaw that have been raised by the learned Advocate-General on the basis ofSection 49 and Section 59(3), Government of India Act, I will assume that infive cases the Home Minister, and in three cases Mr. Porter, who was then theAdditional Secretary in the Home Department of the Government of Bengal, weresatisfied as to the necessity of detaining the persons under Rule 26. Mr.Porters affidavit, taken with the answers of the Home Minister as set out inDr. Nalinakshas affidavit, may suggest that the case of Sasanka Sekhar Sanyalwas 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 sGovernment has not delegated its powers and duties by orders made underSub-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 wehave before us relate to the Chittagong area. The position taken up by him forraising the points of law is that the orders of detention must be taken to beorders made by the Provincial Government itself, though none of the cases(except one) had been brought up or considered by the Governor himself. He saysthat if either the Home Minister or the Secretary or the Additional a Secretaryin the Home Department of the Government of Bengal was satisfied as to thenecessity of detaining these persons and passed orders for detention, that wassufficient, as it must be taken, by reason of the provisions of Section 49 andalso by reason of the general rules of business framed under Section 59(3),Government of India Act, that the Provincial Government after being satisfiedhad made the orders for detention, for the reason that the ProvincialGovernment functions through Ministers and Secretaries. On a carefulconsideration of the matter, I cannot accept his contentions.

44. Rule 26, Defence of India Rules, requires the ProvincialGovernment to make the order for detention on it being satisfied that thedetention of a particular person is necessary. That power and duty can bedelegated by the Provincial Government to any other authority or officer notsubordinate to the Central Government by making an order under Section 2(5),Defence of India Act. The word, Provincial Government has been de. fined inSection 3, Clause 43(a), General Clauses Act, (10 of 1897). It means theGovernor acting or not acting in his discretion, or exercising or notexercising his individual judgment, according to the provisions made in theGovernment of India Act, 1935. The matter of detention in terms of Rule 26,Defence of India Rules, comes within the special responsibility of the Governoras mentioned in Section 52(1), Clause (a), Government of India Act. TheGovernor is, therefore, required to exercise his individual judgment. TheMinisters can tender their advice to him but he is not bound to accept theiradvice. In this view of the matter, the Governor must act him-self, unless hehad delegated his power and duty to another by an order made under Section2(5), Defence of India Act. In these circumstances, and in the absence ofdelegation by an order passed by him under the last-mentioned section, I do notsee how Section 49, Government of India Act, or the general rules of businessmade under Section 59(3), Government of India Act, could be invoked to sustainan order under Rule 26 made either by the Home Minister or a Secretary orAdditional Secretary to the Government of Bengal, when the Governor himself wasnot satisfied, but either the Home Minister or the Secretary or the AdditionalSecretary was, and they made the orders in the name of the Governor. In anyview, a minister cannot be regarded as an officer subordinate to the Governor :Emperor v. Hemendra Prosad : AIR1939Cal529 Moreover, section49 says that the executive authority of a province shall be exercised on HisMajestys behalf by the Governor either directly or through officerssubordinate to him, but Sub-section (2) of Section 49 limits the exercise ofthe executive authority conferred by Sub-section (1) on the Governor to matterswhich could be dealt by the Provincial Legislature only in the absence of anyother provision in the Government of India Act, and so far as this matter isconcerned, there is no other provision. The Defence of India Act could not havebeen 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 BengalGovernment which is in charge of the Home Minister. The general rules ofbusiness framed under Section 59(3), Government of India Act, authorise theMinisters to regulate the business of their departments by standing orders.Such standing orders may provide that in cases of extreme urgency the Secretarycan make orders without reference to the Minister concerned, but all such caseswill have to be brought to the notice of the Minister at the earliestopportunity. The Home Minister had issued a general standing order in terms ofthis general rule. But standing orders cannot, in my judgment, authorise theSecretary, even in cases of urgency, to deal himself with a case of detentionunder 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), Defenceof India Act) has to make an order after he is satisfied about the necessity ofthe detention of that particular person. The Home Minister cannot pass such anorder on his satisfaction. If the Governor does not wish to do so for anyreason, he will have to act in accordance with Section 2(5), Defence of IndiaAct. The Secretary or the Additional Secretary cannot also deal with the matterof detention under Rule 26 on his own satisfaction as to the necessity ofdetention in the absence of an order by the Provincial Government (which meansthe Governor) made in terms of that sub-section. So the standing order of theHome Minister which authorises the Secretary to pass orders in urgent caseswithout reference to him cannot be of any avail, for, that standing ordergoverns only such orders which the Minister could himself have made. The abovereasons 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 theMinister quoted in para. 8 of Mr. Porters affidavit could not in law confer apower on the Secretary which the Minister himself did not possess. For thereasons given under this heading, I also hold that the nine persons before ushave been, illegally detained. For the reasons I have given in discussing, thematter under headings Nos. (3), (8) and (10), I hold that the detention of allthe petitioners before us is illegal and my order is that all of them beforthwith set free.

Khundkar, J.

46. I have had the advantage of reading the judgment justdelivered by my learned brother Mitter J., and I agree that the following pointsenumerated in his judgment should be negatived : (1) That the whole of Section2, Defence of India Act, both in its original and amended forms, is ultra viresof 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 isultra vires of the Indian Legislature. The corresponding portions of Rule 26,Defence of India Rules, are bad and consequently the orders of detention in thecases we have before us are bad. (4) That it is only the Central IndianLegislature that has the power to repeal or amend an Act of the Central IndianLegislature passed under the provisions of Section 102, Government of IndiaAct. (5) That the Governor-General has no power to legislate by such anOrdinance on any Bubject enumerated in List II of Schedule 7, Government ofIndia Act, 1985. (6) That in any event the Governor-General has no power togive retrospective operation to such an Ordinance. (7) That, in any event,Ordinance 14 of 1943 cannot affect proceedings which were pending on the dateof its promulgation. (9) That Rule 26, Defence of India Rules, had no existencein the eye of the law on 29th September 1939 and so does not exist even noweither in its original or amended form.

47. I agree with the conclusions reached by my learnedbrother upon these points, and with the reasons upon which those conclusionsare based. It is therefore not necessary for me to add anything to what iscontained in his judgment regarding these points. As I am constrained todisagree regarding the remaining points dealt with in the judgment justdelivered, I give below my reasons for so doing. The points upon which Idisagree are the points stated in my learned brothers judgment as points (8),(8) and (10).

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

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

(A). An Ordinance under Section 72 of Schedule 9 being oflimited duration, cannot amend an Act of the Indian Legislature which is apermanent enactment. This point was not very seriously argued and I can see nosubstance in it. It is not disputed that a provision of an Act of the IndianLegislature may be suspended for a limited period. Section 2 of Ordinance 14 of1943 substitutes a new-clause for Clause (x) of Section 2 (2), Defence of IndiaAct, 1939. Substitution means no more than this, that an existing provision isremoved, and a new provision is enacted in its place. This surely can be donefor a limited period. If an Ordinance under Section 72 in Schedule 9 isotherwise valid, I can see no reason why it should not effect such asubstitution.

(B) Section 72 expressly says that an Ordinance "may becontrolled or superseded" by an Act of the Indian Legislature. If,therefore, the converse was also intended namely, that an Act of the IndianLegislature 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 isprovided that an Ordinance may be controlled or superseded by an Act of theLegislature, this implies that an Act cannot be controlled or superseded by anOrdinance. No such inference can be drawn from the words quoted when thenecessity for their presence in the section is properly understood. The sectionfirst says that the Governor-General may, in cases of emergency, makeOrdinances for peace and good government for the whole or any part of BritishIndia, and that such Ordinances shall have the like force of law as an Act ofthe Indian Legislature. If the section had stopped there, it might have beenthought that, by reason of the emergent nature of an Ordinance, the paramountcyof the objects for which it is made, viz., peace and good government, and itsunlimited territorial field, an Ordinance might well transcend all thelimitations 1 imposed by the Government of India Act, 1985, on the powers ofthe Indian Legislature, as for instance, those contained in Section 110 of theAct. Hence, it was necessary to add the following words:

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

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

(c) One must accept as a principle, the doctrine that, whenone legislative authority which is representative and democratic in form hasexpressed its will in an enactment, that will may not be stultified byintroducing into the enactment an expression of the will of another legislativeauthority which consists of one individual. The individual here is theGovernor-General who is the supreme head of the executive, and who mustnecessarily be constantly influenced by considerations of executive expediency.To permit the Governor-General to vary, by direct alteration, an enactmentwhich expresses the will of the Indian Legislature of which theGovernor-General himself constitutes only one element, would be illogical andopposed to the theory of democratic government. The absence of any suchintention on the part of Parliament, when it enacted the Government of IndiaAct, must therefore be assumed until the contrary appears in express words. Ifthe Governor-General desired to amend an Act of the Indian Legislature it wouldhave been both appropriate and permissible for him to do so by a Governor.Generals 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 theLegislature otherwise than by an Act of the Legislature it has manifested thatintention in express words. This can be seen in Sections 92, 95(8) and 96 ofthe Act. I shall deal with these sections at once. They are as follows:

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

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

Regulations made under this sub-section shall be submittedforthwith to the Governor-General and until assented to by him in hisdiscretion shall have no effect, and the provisions of this part of this Actwith respect to the power of His Majesty to disallow Acts shall apply inrelation to any such regulations assented to by the Governor-General as theyapply in relation to Acts of a Provincial Legislature assented to by him.

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

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

The provisions of Part II of this Act relating to the powerof "His Majesty to disallow Acts shall apply in relation to any suchregulations as they apply in relation to Acts of the Federal Legislatureassented to by the Governor-General.

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

52. The underlined words (here italicized) in the sectionsabove set out show that in each of these sections there are express wordsgiving the authority which is to make Regulations the power to amend an Act ofthe Legislature by a Regulation. Let me take these sections one by one. InSection 92(2) the underlined words (here italicized) are seen to be necessary,because in this section it is not indicated that any Regulation made thereundershall 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 anAct of the Federal Legislature, after it has been made in the usual way, forterritory outside British Baluchistan, may, so to speak, be borrowed and thenapplied to British Baluchistan. Acts of the Federal Legislature suffer fromthis infirmity, that they cannot be made directly and solely for BritishBaluchistan. An Act, the only purpose of which is to amend an Act of theFederal Legislature which already applies to British Baluchistan, cannot bemade by the Federal Legislature. When Sub-section (3), therefore, goes on tosay that a Regulation made by the Governor-General "shall have the same forceand effect as an Act of the Federal Legislature which applies to theProvince," the same infirmity would attach to the Regulation as to theAct, that is to say, a Regulation could not be made for the purpose only ofamending an Act of the Federal Legislature which already has force in theProvince. It was to avoid such a result, and to make it clear that the GovernorGeneral could make a Regulation for the purpose of amending an Act of theFederal Legislature which had been extended to British Baluchistan, that thewords under, lined (here italicized) were necessary.

53. But it is said that Section 96 stands in the way of suchan explanation. By that section the provisions of Section 95(8) are made toapply in relation to the Andaman and Nicobar Islands. These territoriesconstitute, by reason of Section 91(1), a Chief Commissioners Province forwhich the Federal Legislature has power to legislate directly (see Section100(4)). As Section 95(3) applies to this Province, a Regulation made by theGovernor-General, having as it does "the same force and effect as an Actof the Federal Legislature," would be capable of amending an Act of theFederal Legislature even without the underlined (here italicized) words inSection 95(8). This is undoubtedly so, but I think it is legitimate to considerthese words in Section 95(3) as they apply to the Andaman and Nicobar Islandsto be merely words of abundant caution. Such a conclusion would be consistentwith the meanings of "Regulation" and "rule" contained inClauses (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 bythe Central Government under the Government of India Act, 1915, or theGovernment of India Act, or under Section 95 or Section 96, Government of IndiaAct, 1935.

Clause (47).- Rule shall mean a rule made in exercise of apower conferred by any enactment, and shall include a Regulation made as a ruleunder 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 Regulationwhich is made as a rule under an enactment may nevertheless be considered to bea rule. I do not think it can be disputed that a rule made under any enactmentcannot be capable of amending a statute unless a power of amendment is given byexpress words to the rule-making authority. In cases where a doubt might ariseas to whether a Regulation is or is not a rule under an enactment, the power toamend 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 demandsuch a course.

55. I am of the opinion that the conclusion just stated isin keeping with Section 311(6), Government of India Act, 1935, where anyreference to Acts of the Federal Legislature or Provincial Legislature is madeto include a reference to Ordinances but not to Regulations. Finally, asregards this point it should be borne in mind that the Government of India Act,1985* being an Act of Parliament, the word Regulation, unless otherwiseexplained in the Act, must be understood in the sense in which that word is usedin English Constitutional Practice. Whatever may have been the legislativeevolution from a historical point of view of the word Regulation Ordinancesare emanations of the Royal Prerogative to make law. Historically, Parliamentencroached by gradual stages upon the field over which that prerogative rightwas 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 findsexpression in that class of legislation known today as Ordinances. I would hererefer to some passages in Ansons Law and Custom of the Constitution, Edn. 4.Upon the subject of "The Claims of the Crown to Legislate," at pages248 to 245 of vol. I, it is stated:

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

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

The ordinance in fact seems to follow the form oflegislation which was in use when the Crown-in-Council discharged bothlegislative and executive functions. Its existence indicates the difficultywhich is noticeable for some time after parliaments were at, work indistinguishing the functions of the Crown in parliament from those of theCrown-in-Council, and of the Magnates as Councillors of the Crown from thesame persons as Lords of Parliament....

As the distinction between statute and ordinance becamemanifest, the Crown came to assert definitely as a part of the prerogative theright to legislate independently of parliament. The Royal Proclamations of the16th and 17th Centuries formed the battle ground of the old controversy whichis fought under changed names, and the right of the Crown to tax or tolegislate without parliamentary sanction is asserted and disputed in one formor another from the Ordinance of the Staple to the Bill of Rights.

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

The assumption by the Crown of independent legislativepowers found some warrant in the identity, in early times, of the Executive andthe Legislature and in the very gradual definition of the functions of theKing-in-Council and the King-in-Parliament. Legislation by way of Ordinancecontinued for some time after Parliament had acquired legislative power, andoften with the sanction and approval of Parliament. I have spoken of thelegislative character of the ordinance as distinguished from statute, and ofthe jealousy with which this form of legislation came to be regarded. Thisquickened as the confusion between the Executive and the Legislature clearedaway and as Parliament, and especially the Commons, realised the importance ofinsisting upon the observance of the terms of the Statute of Edward II wherebythe consent of the Prelates, Earls, Barons and the Commonality of the Realm wasrequried 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 endof the 14th Century disappeared during the 15th but revived in the 16th in theform of legislation by Royal Proclamation.

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

All delegated legislation is characterised by its derivationfrom Parliamentary authority, and by its subjection, therefore, to scrutiny bythe Court to determine its validity. However wide the delegation, even if thelegislation passed under it is to have effect as if enacted in the Actdelegating power, the Court must examine its conformity with the authoritygiven, whereas an Act is exempt from question.... The forms in which the poweris exercised are many and various. (1) The most formal type is theOrder-in-Council under statute, which is adopted for the more elaborate andserious form of regulation ; thus we have the Aliens Order-in-Council and theAir Navigation Orders. These, of course, are prepared by the Home Office andthe Air Ministry on whose responsibility they are formally enacted by theKing-in-Council. (2) Departmental regulations take various names and forms.They are regulations such as those made under the Defence of the Realm Act orunder the Factory and Workshop Act, 1901; rules such as rules of the Court orrules 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 whereasordinances are the outcome of a prerogative right to make law which, inconstitutional theory is on the same footing as the power of Parliament to makelaws, regulations are not so regarded. Regulations are laws, but they rest on adifferent foundation, and are to be looked at as rules made by a subordinateauthority in the exercise of a power which it has received by delegation from asupreme legislative authority. In India the position of the Governor-General asthe 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 Kingstands to Parliament. If this view is correct, then the contention which isbased on the language of Sections 92, 95(3) and 96 entirely disappears.

59. As regards Section 44 and Section 67B in Schedule 9Government of India Act, 1935, which was referred to in support of this branchof the argument, all that it is necessary to say is that, althoughGovernor-Generals Acts under those sections can undoubtedly amend Acts of theIndian Legislature, the procedure involved would necessarily take time. AnOrdinance under Section 72 is intended to meet cases of emergency, and, in anemergency, prompt and speedy amendment of an existing Act may be imperative.The making and promulgation of an Ordinance would certainly avoid the delaysincidental to the passing of an Act under Section 44 and Section 67B inSchedule 9. Section 72 gives power to legislate in an emergency for peace andgood government. Such legislation might be totally ineffective unless it wascapable of nullifying enactments of the Legislature which had become, by reasonof the emergency, a hindrance to peace and good government. It is clear fromother sections of the Act that Parliament has considered it desirable to givethe Governor-General power, when the need arises to override or stultify thewishes of the Legislature. In this connection, reference may be made to thefollowing sections : Section 44, Section 108 and Section 67 (2A) and Section67B in Schedule 9.

60. Incidentally, in connexion with Section 108, it may herebe noted that "Ordinance" in clause (b) of Sub-section (1) now comeswithin the meaning of "Ordinance" as used in Section 72 in Schedule 9by reason of the India and Burma (Emergency Provisions) Act, 1940, Section l,Sub-section (4) of which provides that the functions of the Governor. Generalunder Section 1 of that Act shall be deemed for the purposes of the Governmentof India Act, 1935, I to be included among the functions which he is, by orunder that Act required to exercise in his discretion. When we proceed toexamine Section 72 in Schedule 9, we cannot, therefore, approach that sectionwith a mind coloured by the assumption that Parliament would, on principles oflogic or on principles of democracy, be averse to the notion of allowing theGovernor-General to interfere with the wishes of the Legislature and thattherefore the words "the like force of law as an Act passed by the IndianLegislature" are not sufficient to import a power to amend an Act of theLegislature but further words ex abundanti cautela must be found in the sectionbefore the power to amend an Act of the Legislature can be read into it. Freedfrom such an assumption, what does the argument amount to What is to preventthe Governor-General from expressing his will in an Ordinance and "puttingthe Ordinance into an Act so as to make his will appear as the will of theIndian Legislature" That is the language in which this argument was atone stage expressed. If the principle appealed to is one based on logic or onany theory of democracy, that principle is seen to fail, because it is not carriedout in the sections of the Government of India Act, 1935, just referred to. Onwhat foundation then does the proposition above quoted rest I can see nofoundation for it other, than some vague idea of harmony borrowed from therealm of aesthetics. But we are not concerned with a painting in oils which maynot be retouched with water colours. What we are concerned with is the questionwhether the language of Section 72 indicates with sufficient clarity that anOrdinance may amend an Act of the Indian Legislature.

61. There is no judicial authority at all for theproposition that an Act of the Indian Legislature may not be amended by anOrdinance passed by the Governor-General under Section 72 in Schedule 9. In myopinion, there are two decisions which have an opposite import. In Des Raj v.Emperor A.I.R. 1930 Lah. 781 it was held that so far as an amendment of theCode of Criminal Procedure was concerned, there was nothing to prevent eitherthe Indian Legislature, the Governor-General in Council or Governor-Generalacting 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 PrivyCouncil, their Lordships dealt with the contention that there was a repugnancybetween the Ordinance which they were there considering and the constitution ofthe High Court of Lahore, and that the terms of Section 84(a), Government ofIndia Act, as it then stood, made void the Ordinance because of suchrepugnancy. In this connexion, their Lordships said:

But as soon as it is admitted, as counsel candidly didadmit, that an Act might be passed by the Indian Legislature under the powersof Section 65 and in the same terms as the Ordinance, the point as torepugnancy vanishes.

62. In dealing with the matter generally, their Lordshipssaid:

The power given by Section 72 is an absolute power withoutany limits prescribed, except only that it cannot do what the Indian Legislaturewould be unable to do, although it is made clear that it is only to be used inextreme cases of necessity where the good government of India demands it.

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

64. It would not be incorrect to say that the IndianLegislature has, within the limitations imposed upon it by the Government ofIndia Act, the plenary powers of a supreme Legislature, by which expression Imean to distinguish it from those law making authorities which, by virtue ofdelegated powers, enact what is strictly speaking subordinate legislation. Thishas been recognised by the Privy Council in R. v. Burah 3 A.C. 889. Were it notso, it would be unnecessary to place fetters on those powers in certaineventualities as has been done by express enactment in Sections 108 and 110,Governme379nt of India Act. It is the fettering that has had to be done byexpress words. Now, Parliament has, in Section 72 of Schedule 9, given theGovernor-General power to legislate for peace and good government in anemergency. If the power so to legislate is to be a real power, it must be atleast as effective as the power of the Indian Legislature to make law, and thisresult has been brought about by enacting that an Ordinance of the Governor. Generalunder Section 72 shall have the like force of law as an Act passed by theIndian Legislature. The power to amend a law being inherent in the power tomake a law, it was quite unnecessary to say in express words, either in thecase of the Indian Legislature, or in the case of the Governor-General actingunder Section 72 in Schedule 9, that these authorities possessed the power toamend an Act of the Indian Legislature. This becomes quite clear when oneconsiders Section 44 and Section 67B in schedule 9. These sections give theGovernor. General the power to enact Governor-Generals Acts. It has not beensuggested at any stage of the elaborate argument addressed to us that such Actswould not be capable of amending an Act passed by the Indian Legislature. Yet,neither of these sections contain words expressly conferring such a power ofamendment. In these sections the power has to be inferred from the words"the same force and effect as an Act," words which convey exactly thesame meaning as the words "like force" of law as an Act" inSection 72 in Schedule 9. If in Section 44 and Section 67B in Schedule 9 nofurther words "ex abundanti cautela" were thought to be needed, it isdifficult to understand how they become necessary in Section 72 in Schedule 9. Inmy judgment, it is more than reasonably clear that the power to amend an Act ofthe Indian Legislature is there, and that if any further words were needed withreference to that power, they would be needed not to confer the power but totake it away, if indeed it was considered necessary to take it away in anycircumstances. It has not been taken away either in Section 72 or anywhereelse. Finally, if an Ordinance passed under Section 72 in Schedule 9 isincapable of directly amending an Act of the Indian Legislature, I cannotimagine how it comes about that Clause (6) of Section 311 makes any referenceto an Act of the Indian Legislature include a reference to an Ordinance.

(D) Here there are two Legislatures both deriving theirpowers from the same source - Parliament, and both having jurisdiction over thesame field. If one of them is in that field with an enactment, the other maymake an enactment which is repugnant to the former enactment, but it cannotdirectly repeal or amend it. This follows from a principle enunciated by thePrivy 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 fullaccount of the circumstances of that case, and I am relieved of the necessity ofanalysing it for the purpose of showing what the case actually decided, I thinkit is quite apparent from the judgment of my learned brother that the questionswhich the decision actually set at rest were questions which arose directly outof the construction of certain sections of the British North America Actincluding Sections 91, 92 and 129. The passage at p. 866 of the report, quotedby my learned brother is as follows:

It appears to their Lordships that neither the Parliament ofCanada nor the provincial legislature have authority to repeal statutes whichthey could not directly enact.

66. But this must be read with the further observations oftheir 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, beingconfined to that province only, could not have been directly enacted by theParliament of Canada. In the present case the Parliament of Canada would haveno power to pass a prohibitory law for the province of Ontario; and couldtherefore have no authority to repeal in express terms an Act which is limitedin its operation to that province. In like manner, the express repeal, in theCanada Temperance Act of 1886, of liquor prohibitions adopted by a municipalityin the province of Ontario under the sanction of provincial legislation, doesnot appear to their Lordships to be within the authority of the DominionParliament.

67. In the light of this passage, the general import of thewords 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 nopower, unless such power is expressly given, to repeal or amend a law of thatparticular kind. As I have attempted to show above, the Governor-General haspower under Section 72 in Schedule 9 to make by Ordinance laws of the same kindas the Indian Legislature has power to make by Acts, and an Ordinance underSection 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 acontrary conclusion could be derived.

68. Point (8). Section 3 of the ordinance 14 of 1943 has noindependent existence apart from Section 2 of the said Ordinance, and muststand or fall with Section 2. As I have already stated, I am satisfied that anAct of the Indian Legislature can be amended by an Ordinance under Section 72in Schedule 9. Both Sections 2 and 3 are in the same Ordinance it is true, butif Section 2 goes I do not see why Section 3 should fail. In my opinion thewords "deemed to have been made" in Section 3 of the new Ordinancehave the effect of repeating what is already contained in Section 2, and againgive 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 ofdetentions heretofore made. Rule 26 of the Defence of India Rules was actuallymade under the original Section 2(2)(x), but may now be deemed to have beenmade not under d the old but under the new Section 2(2)(x). This is the firstand 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 ofany 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 ofSub-section (1), it justifies the detentions made in the past although thatrule 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 ofthe Federal Court that Rule 26 was made under Section 2(2)(x). In view of myconclusions on the points raised in the other arguments, I do not think I needpursue this question any e further.

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

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

(B) Rule 26 requires the proper authority to be satisfiedthat a detention is necessary before any order of detention under that Rule ismade. It is open to the petitioners to show that the consideration, if any, oftheir cases by the authority which ordered the detention, took place, if atall, after the detention was ordered and not before.

70. At the outset of this discussion I ought to make itclear that I agree with my learned brother Mitter J. in his reading of Section59(2), Government of India Act, and of the cases J in Eshugbayi Eleko v.Officer administering the Government of Nigeria A.I.R. 1931 P.C. 248, JitendraNath Ghosh v. Chif Secretary to the Government of Bengal :AIR1932Cal753 and Liversidge v. Sir Anderson 1942 A.C. 206. I also agree thatthe answers of the Home Minister to questions put to him during the proceedingsof the Legislative Assembly afford materials which the. Court may take intoconsideration.

71. The argument in compartment A was developed in the followingway. Rule 26 of the Defence of India Rules requires the orders of detention tobe made by the Central Government, or the Provincial Government, after theGovernment in question is satisfied that the order of detention is necessary.We are here concerned with the Provincial Government, and if it can be shownthat "Provincial Government" means the Governor personally the ordersof detention are illegal, for it will be seen presently that the Governor didnot himself apply his mind to the cases of these petitioners for the purpose ofsatisfying himself that their detention was necessary.

72. That "Provincial Government" means theGovernor personally is sought to be established in the following manner : (a)Under Section 2(5), Defence of India Act, it is permissible for the ProvincialGovernment to delegate the duty of being satisfied that detention wasnecessary, to any officer or authority other than an officer or authoritysubordinate to the Central Government, Section 2 (5) being a provisioncontained in a special Act (The Defence of India Act), the provisions of theGovernment of India Act cannot apply. Therefore "ProvincialGovernment" in Section 2(5) and Rule 26 cannot mean the Governor acting"through officers subordinate to him," as in Section 49, Governmentof India Act, 1935. If "Provincial Government" had such a meaning inthe 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 thatdetention is necessary has not, in fact, been expressly delegated in terms ofSection 2(5), either to a Minister, or to a Secretary to the ProvincialGovernment. Therefore "Provincial Government" in Rule 26 must in 4hepresent case mean the Governor himself.

73. I think there are three infirmities in the argument thatbecause 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 theFederal 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 onlya residuary provision. Section 2(5) does not apply at all, because itcontemplates delegation of powers and duties under Sub-section (1), and notpowers and duties conferred by any of the clauses of Sub-section (2). Thereforethe 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 weare not concerned with it here.

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

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

(b) The point that "Provincial Government" in Rule26 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 eachProvince coterminous with the field in which the Legislature of the Provincehas power to make laws. No Provincial Legislature had power to enact theDefence of India Act. Therefore, the executive authority of the Province didnot extend to the making of orders under that Act. Section 49 (1) provides thatthe executive authority of the Province shall be exercised by the Governor,either directly or through officers sub. ordinate to him. It follows that validorders under the Defence of India Act cannot be made by the Governor underSection 49, that is to say, by the Governor acting either directly or throughofficers subordinate to him. Therefore, for the purpose of ascertaining what ismeant by "Provincial Government" in R. 26, we must go to the GeneralClauses Act (India Act 10 of 1897). Clause 43 (a) of Section 8 of that Actsays:

Provincial Government as respects anything done or to bedone after the commencement of Part 3, Government of India Act, 1935, shallmean - in a Governors Province, the Governor acting or not acting in hisdiscretion, and exercising or not exercising his individual judgment accordingto the provision in that behalf made by and under the said Act.

76. Now, the functions covered by Rule 26, Defence of IndiaRules, fall within Section 62(1)(a), Government of India Act - "theprevention of any grave menace to the peace and tranquillity of theProvince," and as such they are embraced within the Governors specialresponsibilities (Section 52(1), Government of India Act). By Section 52(3) theGovernor shall in so far as his special responsibility is involved exercise hisindividual judgment. It is stated, and we must take it, that in matters inwhich the Governor is to exercise his individual judgment, the Ministers areentitled to tender advice, but the Governor is not bound to accept the same.The Governor therefore remains the only authority which can make orders underRule 26.

77. When examined, this ingenious argument is seen to befounded upon the circumstance that the enactment of the Defence of India Actwas not within the legislative competence of a Province. That is very true, butthe Provincial Legislature would have power to make a law with respect to"preventive detention for reasons connected with the maintenance of publicorder," which is a subject included in Item 1 of the ProvincialLegislative List. In my judgment this fact is sufficient to attract Section 49to the making of orders under Rule 26. It further seems to me that "preventivedetention for reasons connected with the maintenance of public order" is amuch wider expression than would be such an expression as "preventivedetention for the maintenance of public order." Reasons connected with themaintenance of public order may very well be, and in actual fact very oftenare, connected also with such subjects as the defence of British India, and theefficient prosecution of the war. In actual practice it is not possible toseparate 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 mostintimate 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 ofIndia Act, in a quest for the meaning of "Provincial Government" asused in Rule 26, Defence of India Rules. In any event the General Clauses Actdoes not repel the Government of India Act, but on the contrary the former Actapplies to the latter Act and must of necessity be read along with it. Thepresent argument would seem to ignore the fact that the provisions of theGeneral Clauses Act which apply to the Government of India Act were enacted forthe purpose of explaining the latter Act and not for the purpose of explainingit away. In my judgment clause 43(a) of Section 3, General Clauses Act, isnecessarily meant to be read into certain sections including Section 49 andSection 59, Government of India Act. This alternative argument also fails, andit follows that the expression "Provincial Government" in Rule 26 hasno 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 theexecutive authority of the province may be exercised by the Governor eitherdirectly or through officers subordinate to him. Section 59(1) and (2) providesthat all executive action of the Government of a province shall be expressed tobe taken in the name of the Governor, and orders and instruments made e andexecuted in the name of the Governor shall, if properly authenticated, not becalled in question on the ground that they are not orders and instruments madeor executed by the Governor. Sub-section (8) of Section 59 provides that theGovernor shall make rules for the more convenient transaction of the businessof the Provincial Government and for the allocation among ministers of the saidbusiness which by reason of the words "not business with respect to whichthe Governor is...required to act in his discretion" includes all mattersfalling within the exercise of the Governors individual judgment. Thesubject-matter of Sub-section (3) being any business of the ProvincialGovernment which is comprised within the functions exercisable by the Governorin his individual judgment, it is wide enough to embrace the matters enumeratedin Section 52, and so it includes the making of orders under Rule 26. Itfollows therefore that such orders are covered by the expression"executive action of the Government" in Sub-section (1) of Section59. But as executive action here must mean action taken in the exercise of"the executive authority of a province" within the meaning of Section49(1), anything done after the allocation of business 3 treated of in Section59 (3) must of necessity be controlled by the provisions of Section 49(1). Ittherefore follows that although a particular duty may have been allocated to aminister, the Governor may nevertheless exercise his functions in relationthereto through any officer subordinate to himself. In my judgment, if realeffect is to be given to the intention which inspires the scheme of Chap. 2,Part 3, Government of India Act, the expression "officer subordinate tothe Governor" in Section 49(1) must include a minister when that ministeris transacting business allocated to him under Section 59(3). The ministers arethe J Governors ministers, as is apparent from the language of Section 51(1).If I may revert again to constitutional analogy, the notion which is sought tobe carried out in the Government of India Act is that of the Ministers of theCrown in England who when discharging their executive duties, act as servantsof 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 theGovernor or a spokesman for the Government. Whether a minister may legallydelegate 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 thatunder Rules of Business which had in fact been made under Section 59(3), theduty of passing orders under Rule 26, Defence of India Rules, had devolved uponthe minister, and this brings us to compartment E of the argument which wasdeveloped to support point 10.

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

Dr. Nalinakshya Sanyal. My question is this : "I findfrom the list that more than 1200 persons have been kept under detention underthe Defence of India Rule 26, to the end of December 1942. There may have beensome releases later on. Now, Sir, the Defence of India Rules provide that inthe case of subsequent detention under Rule 26 the sanction of the LocalGovernment will have to be taken, and in the case of R. 129 certain authority hasbeen vested in the local officers. "We presume that the sanction of theLocal Government in this case means the approval of the Honble Minister incharge. So my question is whether in the case of these 1210 persons theapproval of the Minister in charge has been taken or not"

80. The Honble Mr. A.K. Fazlul Huq : "It is notpossible 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 underRule 26, unless there are special reasons why a recommendation should be madefor their release. But as regards these 1200 persons as to how many cases wereheld back and how many were put up I have no idea."

81. Dr. Nalinakshya Sanyal : "May I inquire if thedetention of persons under Rule 26 whose cases have not been definitelyreferred to the Local Government have been illegally detained"

82. The Honble Mr. A.K. Fazlul Huq: "Cases may haveoccurred in which persons arrested under Rule 129 have been detained althoughno order has been passed."

83. In reply to the contention raised in this connexion, thelearned Advocate-General has put in on behalf of the Crown, an affidavitaffirmed by Mr. Porter an Additional Secretary to the Government of Bengal inthe Home Department. I shall consider Mr. Porters affidavit presently, but Ishall first examine the contention based on the questions and answers above setout and I shall take that contention at its highest. It has been submitted onbehalf of the petitioners that, after they were arrested and detained underRule 129, their detention was converted as a matter of routine into thedetention contemplated by R. 26, and that if their cases were considered atall, it was after the point of time at which orders against them under Rule 26can be deemed to have been passed. The contention will, I think, in fact failon its merits if the answers of the Home Minister are read along with theaverments in Mr. Porters affidavit, but as I have already indicated this is anaspect of the question which I will consider a little later. Here I will assumethat the Home Minister had directed that when any person was arrested anddetained under R. 129, there was to be an automatic conversion of thatdetention into a detention under Rule 26. I will also assume that the HomeMinister did not himself consider the cases of these petitioners. Now whatwould the position be, looked at from a legal or constitutional point of viewTo the Home Minister had been allocated the duty of considering, and passingorders 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 outthis duty. He was not attending to these cases at all. Would it for that reasonbecome 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 officersubordinate to him If the answer to this question is that when a Ministerfails for any reason to discharge his executive functions, those functionscannot be legally discharged except by the Governor acting directly andpersonally, the business of executive Government would soon come to astandstill. If the Governor must perform every executive act which a Ministershould but does not perform what is to happen when, in the event of a failureof the constitutional machinery, the Governor has to issue a proclamation undersection 93, Government of India Act. Would the Governor then have to performall the executive functions of Government himself But it may be said in answerto this, that when the constitutional machinery is functioning, the Governorwould 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 underSection 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 hisdiscretion (see Section 93(1)(a)). This is realty no answer because Section 49covers both classes of functions.

84. In the present case, the Minister having, upon theassumption now made, failed to carry out his duties in regard to orders underRule 26, those duties devolved in fact upon the Secretary. Minister or noMinister, the Secretary was an officer subordinate to the Governor, and so heremained for the whole time during which the cases of persons arrested anddetained under Rule 129, who were awaiting further orders fell to be handled byhim. As I understand it, the position was this: The Minister had a right tooffer advice to the Governor in connection with these matters, but the Governorwas not bound to accept that advice. This is what is meant when it is said thatthe Governor is exercising his individual judgment as to the action to betaken. Whether the Minister offered advice in any of these cases we do notknow. But if the Secretary dealt with, and disposed of cases which properlycame within the scope of his duties as the Secretary of a particularDepartment, it could with every justification be said that the executiveauthority of the Province had been exercised in regard to those cases by theGovernor through an officer subordinate to him. The point which emerges is,that where there is a Minister; and where business of executive Government hasbeen allocated to him under rules made under Section 59(3), that business maylegally be transacted either by the Minister, or failing the Minister, by someother person provided the latter is an officer subordinate to the Governor.From the affidavit of Mr. Porter I am satisfied that orders under Rule 26 ofthe Defence of India Rules were passed in all these cases either by theGovernor or, by the Home Minister, or by Mr. Porter. The order is in each caseexpressed to be the order of the Governor and is duly authenticated, and it isnot open to any one to say that it is not the order of the Governor, for thatquestion 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 26were passed either the Governor, or the Home Minister or the Secretary feltsatisfied that detention was necessary within the intendment of Rule 26"

85. On this question the affidavit of Mr. Porter containsstatements 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. Porterwas satisfied. Pratul Chandra Ganguly - Orders under Rule 26 were passed afterthe Home Minister or at least Mr. Porter was satisfied. Birendra Ganguly -Orders under Rule 26 were passed after Mr. Porter was satisfied. Narendra NathSen Gupta - Orders under Rule 26 were passed after the Home Minister wassatisfied. Niharendu Dutta Majumdar- Orders under Rule 26 were passed after theGovernor or the Minister or both were satisfied. Sasanka Sekhar Sanyal-Ordersunder Rule 26 were passed after at least Mr. Porter was satisfied. Bijoy SinghNahar - Orders under Rule 26 were passed after Mr. Porter was satisfied.Sibnath Banerji - Orders under Rule 26 were passed after Mr. Porter wassatisfied. Nani Gopal Majumdar -Orders under Rule 26 were passed after Mr.Porter was satisfied.

86. This ground also fails, but I have one observation toadd. 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, aswell as Section 2(5), Defence of India Act, and in the application of thatreading to the averments contained in Mr. Porters affidavit. As against theconclusion to which I have been so led, there is an argument which I ought todeal 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 moreconvenient transaction of the business of the Provincial Government.Sub-section (4) enacts that those rules shall include provisions requiring aMinister to bring to the notice of the Governor, and the Secretary to bring tothe notice of the Minister and of the Governor, any matter under considerationby him which involves or is likely to involve, any special responsibility ofthe Governor. Sub-section (5) makes it clear that in the discharge of hisfunctions under Sub-section (4) the Governor shall act in his discretion afterconsultation with his Ministers. It may be contended that, as the duty ofconsidering cases in which orders might have to be passed under Rule 26,Defence of India Rules, was a matter within the special responsibility of theGovernor under Section 52 (l), both Minister and Secretary are by the operationof Sub-sections (4) and (5) of Section 59, debarred from dealing with thosecases, and that it becomes the duty of the Governor to apply his own mind tothem.

87. I do not think this follows from the provisions justreferred to. Sub-section (4) certainly does require the framing of a rule thatmatters involving any special responsibility of the Governor are to be broughtto his notice; but if no such rule has in fact been framed, or if the rulehaving been made, the matters to which it applies are not brought to theGovernors notice, would it follow that action taken by the Minister or theSecretary in relation to such a matter would be invalid I think not, for sucha view would involve us in affirming that Sub-sections (4) and (5) of Section59 take all matters embraced in the Governors special responsibilities out ofthe general operation of Section 49(1) altogether. No such intention is to begathered either from Section 52, which treats of the matters embraced in theGovernors special responsibilities, or from Section 49 which embodies thegeneral rule of administration with regard to all executive authority in theProvince which is, in its entirety, deemed to be vested in the Governor. In myjudgment Section M9 controls Section 59, and the provisions of the lattersection create no exception to the, rule of universality embodied in Section49(1). The direction in Sub-section (5) of Section 59 that in the discharge ofhis functions under Sub-sections(2), (3) and (4) of this section the Governorshall act in his discretion after consultation with his Ministers, relates onlyto the Governors rulemaking function under those sub-sections, and cannot havereference to the exercise by him of any of the executive functions enumeratedin Section 52(1) because in the exercise of such functions, the Governor isbound under Sub-section (3) of Section 52 to exercise his individual judgmentand not his discretion. The result is, that in my judgment, all these rulesshould be discharged.

Sen, J.

88. I agree with my learned brother Mitter J. that theserules should be made absolute and the petitioners set at liberty forthwith. Thepoints raised have been very fully discussed by my learned brothers and Iconcur in the conclusions of my learned brother Mitter J. on all points exceptone with which I shall deal later. The questions involved are of suchimportance that even at the risk of repeating what has already been said I feelthat I should record separately my conclusions and the reasons thereforeregarding some of the important matters canvassed before us. Before stating thearguments of the parties it will be necessary to go into the history of therule under which the petitioners have been detained. The rule is Rule 26. madeby the Central Government in the purported exercise of powers presumed to havebeen granted to it by the Defence of India Act of 1939. Before the Defence ofIndia Act of 1939 was enacted there existed the Defence of India Ordinance 5 of1939. Certain rulemaking powers were given to Central Government by theOrdinance. The Central Government made a rule, being Rule 26 in the exercise ofpowers presumed to have been given to it by the Ordinance. That rule may forthe 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 soughtto be continued in force by Section 21 of the Act which is in these terms:

The Defence of India Ordinance 1939, is hereby repealed; andany rules made, anything done and any action taken in exercise of any powerconferred 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 thisAct had commenced on the 3rd day of September 1939.

89. The rule underwent a slight modification which is notmaterial 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 topreventing him from acting in any manner prejudicial to the defence of BritishIndia, the public safety, the maintenance of public order, His Majestysrelations with foreign powers or Indian States, the maintenance of peacefulconditions in tribal areas or the efficient prosecution of the war it isnecessary so to do, may make an order; (a).... (b) directing that he bedetained.

90. The petitioners have been detained under this rule.After their detention the validity of the rule was called in question in theBombay High Court in Keshab Talpades case. That Court held that it was valid.On appeal the Federal Court has held that the rule was made in the exercise ofpowers presumed to have been granted to the Central Government by Section2(2)(x), Defence of India Act, and that it is ultra vires of that section asthe section did not grant the Central Government the power or authority to makesuch a rule. Thereafter these petitioners applied before me under Section 491,Criminal P.C. for their release on the ground that their detention was notsanctioned by law. I issued rules upon the Provincial Government to show causewhy the petitioners should not be released. After the rules had been issued andpending the decision thereon the Governor. General passed an ordinance being ordinance14 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) issubstituted in its place. The new section purports to give wider rule-makingpowers to the Central Government, and it is given retrospective operation. Bythis method Rule 26 is sought to be validated. This is the intended effect ofSection 2 of the ordinance. Then, there is the other section viz., Section 3which enacts that no detention heretofore made under Rule 26

shall be deemed to be invalid or be called in question onthe ground merely that the said rule purported to confer powers in excess ofthe powers that might at the time the said rule was made be lawfully conferredby a rule made or deemed to have been made under Section 2, Defence of IndiaAct.

91. There is no room for any controversy that, if thepresent Ordinance 14 of 1943 have not been promulgated, in view of the decisionof the Federal Court, the detention of the petitioners must be held to beillegal. The question for decision is whether this ordinance has the effect ofvalidating the detention. The arguments urged on behalf of the petitioners maybe conveniently grouped under four heads thus : (1) The present Ordinance isultra vires the power of the Governor-General and it cannot validate thedetention. (2) Even if the Ordinance be valid it cannot have the effect ofvalidating Rule 26 as that rule had no legal existence when the Defence ofIndia Act was enacted. (3) Even if the Ordinance be valid, inasmuch as it waspromulgated when the present proceedings were pending, the cases of thepetitioners must be decided as if the Ordinance had not been passed. (4) Evenif the Ordinance has validated Rule 26 the orders of detention are bad as theyhave not been made in accordance with the provisions of the rule. I shall nowtake up for consideration the main argument under the first head. It may bestated thus. The present Ordinance has been promulgated by the Governor.General in the exercise of the powers conferred upon him by Section 72 ofSchedule 9, Government of India Act of 1935. The Ordinance directly repealsSection 2(2)(x), Defence of India Act, an Act of the Indian Legislature, andsubstitutes in that Act a new Section 2(2)(x). Although Section 72 gives theGovernor-General very wide powers it does not give him the power to repeal oramend directly an Act of the Indian Legislature. On behalf, of the Crown theanswer to this argument is that although such power has not been expresslyconferred by the section nevertheless this power is necessarily included in thewide powers conferred by the section. Section 72 is in these terms:

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

92. It is clear that although the section expressly givesthe Indian Legislature the power to control or supersede directly &nOrdinance no such corresponding power is expressly given to theGovernor-General in respect of an Act of the Indian Legislature. I would nextdraw attention to Section 108, Government of India Act, which expresslyrecognises the power in the Indian Legislature to amend or repeal directly anOrdinance. It provides that if the Indian Legislature wishes to pass an actwhich repeals, amends or is repugnant to an Ordinance it must get the previoussanction of the Governor-General. There is no similar express recognition ofany power in the Governor-General to repeal or amend directly by Ordinance anAct of the Indian Legislature. I would emphasise at this stage that the presentpoint for consideration is not whether the Governor-General by an Ordinance canindirectly repeal or amend an Act of the Indian Legislature by the process ofrepugnant legislation but whether the Governor-General as ordinance maker canas he has done by the present Ordinance, directly repeal a provision of an Actof the Indian Legislature and substitute therein as part of that Act anotherprovision.

93. The argument of the learned Advocate. General is this :By Section 72 of Schedule 9 once there is an emergency and the Governor-Generalconsiders that an Ordinance is necessary for peace and good government, theGovernor-General is given power to legislate by ordinance on any topic upon whichthe Indian Legislature could legislate and such Ordinance has the same force asan Act of the Indian Legislature. Where such wide and plenary powers are givenit follows as a matter of course that the Governor-General has the power toamend or repeal an Act of the Indian Legislature. Such power is inherent andneed 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 awell-known general principle that a body which is given the power to make lawshas 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 anargument that where two bodies are given the same power to legislate in thesame field, one body may make laws which are repugnant to the laws made by theother body and thereby indirectly repeal or amend an Act of the other. But itmust be remembered that when such repugnancy occurs, the Courts and the Courtsalone decide which law is to prevail. One Legislature does not repeal or amenddirectly the Act of the other. I am not aware of any general principle thatwhere there are two legislative bodies with equal powers to legislate in thesame field one body has the inherent power to repeal or amend directly the lawof the other body and thereby establish by its own Act an overriding power overthe other legislative body. There is a fundamental difference between the powerto amend or repeal directly and the power to make repugnant laws. In the caseof repugnancy one Legislature does not override the other. It merely legislatesin 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 theother the decision as to which law shall prevail is not left to the Court. TheLegislature which repeals or amends makes the decision for itself. The mattermay be looked at from another angle. An Act of the Indian Legislature expressesthe collective wisdom and will of the members of the Legislature, an Ordinanceexpresses the will and wisdom of the Governor-General.

95. It is difficult to appreciate how there can be anyinherent power in the Governor-General as ordinance maker to introduce anOrdinance into an Act and make it part of the product of the IndianLegislature. To put the question more concisely. Has the Governor-General byreason of the provisions of Section 72 the inherent power of transforming anOrdinance into an Act of the Legislature In my opinion he has not. Howeversimilar they may be an Ordinance is one thing and an Act of the IndianLegislature is another. They are not identical. Section 72 gives theGovernor-General the power to make ordinances. It does not empower him to makean Act of the Indian Legislature or to convert Ordinance into an Act of theIndian Legislature. If he cannot make such an Act, it follows that he can haveno inherent power to repeal or amend it directly or substitute something intoit.

96. The learned Advocate. General supported his contentionthat the Governor. General had power to amend or repeal directly an Act of theIndian Legislature by recourse to another argument. This is what he said. Whenthere is an emergency the Governor-General has, by virtue of the provisions ofSection 72 of Schedule 9, power to make any law that the Indian Legislaturecould make for peace and good government. There can be no doubt that the IndianLegislature can make a law repealing or amending directly a previous law of thesaid Legislature. Therefore the Governor-General can make an Ordinance directlyrepealing or amending an Act of the Indian Legislature. The argument isplausible, but if the words of Section 72 are care-fully analysed it will befound to be unsound. Section 72 does not anywhere either expressly or bynecessary implication say that in cases of emergency the Governor. General canby Ordinance make every law which the Indian Legislature can make. It says thatin cases of emergency the Governor-General can make an Ordinance for peace andgood government and that such Ordinance when validly made shall have "thelike force of law as an Act passed by the Indian Legislature." What doesthis then mean It means simply this, that the Ordinance shall be as bindingupon persons, as if it were an Act of the Indian Legislature and that it willbe enforceable in the same manner as an Act of the Indian Legislature. Thewords "shall have the like force of law as an Act passed by the IndianLegislature" describes the qualities or attributes of the Ordinance, theydo not confer a power on the Governor-General to make every law which theIndian Legislature can make. Again the section says:

The power of making Ordinances under this section is subjectto 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 disallowancesas an Act of the Indian Legislature.

97. These words are relied upon by the learnedAdvocate-General for his contention that the Governor-General as Ordinancemaker can do whatever the Indian Legislature can do. The words relied upon arenot words donating powers but words imposing restrictions on the power alreadyconferred by the first part of Section 72 on the Governor-General to makeOrdinances. The learned Advocate-General seemed to argue that as the sectionimposes the same restrictions upon the Governor-Generals power of makingOrdinances 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 afallacy in this argument and, if I may say so with respect, the argument reallybegs the question. If both Legislatures had originally identical powers then,certainly, the imposition of identical restrictions would result in the powersstill remaining the same. This is axiomatic, but the mere imposition of likerestrictions does not connote the conferment of identical powers. We are thusbrought back to the original question - does Section 72 confer upon the Governor-Generalthe power to do everything that the Indian Legislature can do The answer isthat the section does not say that it is doing any such thing and there isneither jurisdiction nor necessity for reading into a section of thisdescription, which confers extraordinary emergency powers upon theGovernor-General, something which is not there and which will have the effectof widening these emergency powers.

98. The learned Advocate-General next argued that as theGovernor-General could indirectly repeal or amend an Act of the IndianLegislature by making an Ordinance which was repugnant to the Act henecessarily could effect the same end by the direct method of express repealand amendment. What can be done indirectly, he argued, can also be donedirectly. I know of the principle more than once laid down by the JudicialCommittee and the House of Lords that what a Legislature cannot do directly itcannot do indirectly Great West Saddlery Co. v. The King A.I.R. 1921 P.C. 148 ,but I have not yet found any Court laying down the principle that what one cando indirectly one can necessarily do directly. To give countenance to thisargument of the learned Advocate-General would be to accept the view that theend 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 followfrom this that the law sanctions the employment of any and every means for theachievement of that end. What means are permissible and what are not must be ascertainedfrom the terms of the law which gives the power and when there are no expressterms from general principles of construction.

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

100. On the other hand, it is open to the petitioners torely upon the legal maxim "Expressio unius excludio alterius" and saythat when one only of two legislative authorities is expressly given the powerto repeal and amend an Act of the other it follows that the latter authorityhad no such power. On behalf of the petitioners our attention was also drawn tothe provisions of Sections 92, 95 and 96, Government of India Act, in supportof the contention that whenever Parliament intended to confer on onelegislative body the power to repeal or amend directly the Act of anotherexpress terms are to be found granting this power. Section 92 deals withexcluded areas and S.95 deals with British Baluchistan. Neither the Indian northe Provincial Legislature has the power to legislate with respect to theseareas. These sections give power to the Governor. General to introduce bynotification as law into these areas any enactment of the Indian or ProvincialLegislature with such modifications as he thinks fit. He is also given thepower to make regulations for the peace and good government of these areaswhich shall have "the same force and effect as an Act of the IndianLegislature." After giving the Governor-General these wide powers of legislationby regulation the section goes on to grant expressly to the Governor. Generalthe power to repeal or amend by these regulations any law of the Indian orProvincial Legislature introduced by notification. Section 96 deals with theAndaman and Nicobar Islands. In respect of these places the Indian Legislaturehas the power to make laws. Section 96 empowers the Governor-General to makeregulations for the peace and good government of these areas which shall have"the same force and effect as an Act of the Indian Legislature." Hereagain an express power to amend and repeal an Act of the Indian Legislature bymeans of regulations is given to the Governor-General. If the contention of thelearned Advocate General be correct, viz., that when two Legislatures have powerto legislate in the same field one Legislature has necessarily the powerdirectly to repeal or amend the Act of the other then it was quite unnecessaryfor Parliament to make those express provisions in Sections 92, 95, and 96,Government of India Act. Again, the learned Advocate-General argues that thiswas done for abundant caution. I am unable to appreciate why Parliament shouldbe so cautious in all these instances and fail to exercise any caution whenenacting Section 72. It is more reasonable to presume from the provisions ofall these sections that whenever Parliament intended to give one Legislaturethe power to amend directly an Act of another it took meticulous care to say soin express terms. The view that I have taken finds support in the decision ofthe Judicial Committee in Ontrio v. Attorney General for the Dominion of Canada1896 A.C. 348. I would refer to the observation of Lord Watson at p. 366 whichis in these terms:

It has been frequently recognised by this board and it maynow be regarded as settled law, that according to the scheme of the BritishNorth America Act the enactments of the Parliament of Canada, in so farjasthese are within its competency, must override provincial legislation. But theDominion Parliament has no authority conferred upon it by the Act to repealdirectly any provincial statute, whether it does or does not come within thelimits of jurisdiction prescribed by Section 92. The repeal of a provincial Actby the Parliament of Canada can only be effected by repugnancy between itsprovisions and the enactments of the Dominion; and if the existence of suchrepugnancy should become a matter of dispute, the controversy cannot be settledby the action either of the Dominion or of the provincial legislature, but mustbe submitted to the judicial tribunals of the country. In their Lordshipsopinion the express, repeal of the old provincial Act of 1864 by the CanadaTemperance Act of 1886 was not within the authority of the Parliament ofCanada. It is true that the Upper Canada Act of 1864 was continued in forcewithin Ontario by Section 129, British North America Act, "until repealed,abolished, or altered by the Parliament of Canada or by the provinciallegislature," according to the authority of that Parliament, "or of thatlegislature." It appears to their Lordships that neither the Parliament ofCanada nor the provincial legislatures have authority to repeal statutes whichthey could not directly enact.

101. The learned Advocate-General argued that the JudicialCommittee, when they said that the Dominion Parliament had no authorityconferred upon it by the Act to repeal directly t any provincial statutewhether it did or did not come within the limits of the jurisdiction prescribedby section 92, British North America Act, were not basing their view upon anygeneral principle that one Legislature cannot repeal an Act of another unlessit is expressly given such power, but were basing it upon the particularprovisions of the British North America Act which, he said, prevented theDominion Parliament from repealing an Act of the Provincial Legislature. I amunable to accept this view for the reasons stated by my learned brother MitterJ., with which I respectfully and 5 entirely agree. The conclusion of the PrivyCouncil regarding the inability of the Dominion Legislature to repeal directlyan Act of the Provincial Legislature is based on the assumption that oneLegislature cannot directly repeal an Act of another unless it is expresslyvested with powers to do so and that the North America Act had not vested theDominion Parliament with any such powers. The judgment contains nothing toindicate that their Lordships held the view that the Dominion Parliament wouldhave had the inherent power to repeal directly an Act of the ProvincialLegislature 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 NorthAmerica Act which would have the effect of taking away any such inherent powerif it existed. Sections 91 and 92, North America Act, are the provisions whichdescribe the fields of legislation of the Dominion and Provincial Legislaturesrespectively. It would seem prima facie that each Legislature has an exclusivefield of legislation but that is not so. There is some overlapping and in timesof great emergency the Dominion Parliament for the safety of the Dominion as awhole has power to trench upon certain subjects in the Provincial field : FortFrancis Pulp & Power Co. v. Manitoba Press 1923 A.C. 695. In spite of thispower in the Dominion Parliament it was held in Ontrio v. Attorney General forthe Dominion of Canada 1896 A.C. 348, that the Dominion Parliament could notdirectly repeal an Act of the Provincial Legislature. Their Lordships wentfurther and said that even if the Provincial Legislature had travel, led beyondthe provincial field the Dominion Legislature could not directly repeal it, butcould only pass repugnant legislation and leave it to the Courts to decidewhich legislation should prevail. In my opinion, a general principle was beinglaid down in the above case to the effect that one Legislature cannot directlyrepeal an Act of another unless it is expressly given power to do so.

102. For the reasons given above, I am of opinion that thereis no power in the Governor-General to repeal or amend directly an Act of theIndian Legislature by means of an Ordinance passed under Section 72 of Schedule9, Government of India Act. The learned Advocate-General next argued that evenif 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 thereforevalid. That being so, he contended, the orders of detention made in respect ofs the petitioners could not be challenged. In my opinion, this contentioncannot prevail for more than one reason. It is perfectly clear from the termsof Section 3 itself that the section was intended to be merely an appendage toSection 2. It was not intended to have any separate existence at all but wasmerely explanatory of the effect of Section 2 on the validity of the detentionsmade before the promulgation of the Ordinance. If Section 2 falls Section 3must fall with it. Let us remove Section 2 from the Ordinance and see how itreads:

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

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

1. Short title and commencement. - (1) This Ordinance may becalled the Defence of India (Amendment) Ordinance, 1943. (2) It shall come intoforce at once.

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

103. Section 3 by itself would have no meaning. I referspecially to the words "For the removal of doubts." Section 3expressly states that it is enacted for the purpose of removal of doubts. Nowwhat are the doubts it seeks to remove Surely it cannot be said that thedecision of the Federal Court created any doubt regarding the validity of theorders of detention made under Rule 26. The Federal Court in Talpades case inexplicit terms removed any possible doubts on the matter and declared that allsuch detentions were illegal. To say, in spite of this judgment of the FederalCourt, that doubts still existed would be a piece of sheer impertinence and Iam unwilling to ascribe such impertinence to anybody exercising legislativefunctions. Some other meaning must therefore be given to the -words "forthe removal of doubts." The meaning is obvious. The Federal Court haddeclared in Talpades case that the detention of Talpadeunder Rule 26 was illegal because that rule was ultra vires of the rulemakingpower granted to the Central Government by Section 2(2)(x), Defence of IndiaAct, 1939. Section 2 of the Ordinance repealed Section 2(2)(x) and substituteda new section in its place in order to give the Central Government the powersto make a rule like Rule 26 stating at the same time that the new section shallbe deemed always to have been substituted. To remove any doubts as to whetherthis new section would have the effect of validating detentions made before theamendment was made, Section 8 was enacted. It does not make any new law. Itstates in express terms that its object is to remove doubts. In other words itis merely explanatory of Section 2. If Section 2 falls Section 8 which ismerely pendant from Section 2 must necessarily fall.

104. There is yet another reason why Section 3 cannotprevent the petitioners from challenging the validity of their detention and itis this. As I have said before, Rule 26 was made originally under the Defenceof India Ordinance, 5 of 1989, in the exercise of powers, assumed to have beengranted to the Central Government by Section 2, Defence of India Ordinance. TheOrdinance was repealed by the Defence of India Act, 1939, and was re-enacted inalmost the same terms. Section 2 of the repealed Ordinance was reproducedverbatim in the Act. No new rules were framed under the Act but the rules madein the exercise of powers conferred by the Ordinance were saved by Section 21of the Defence of India Act. Now Section 3 of the present Ordinance says thatthe validity of a detention heretofore made under Rule 26 shall not bequestioned on the ground that Rule 26 conferred more powers than could lawfullybe 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 prohibitedfrom urging by Section 3. The urging of any other ground against the validityof the detention is not prohibited. It is therefore open to the petitioners tourge, as they do urge, that their detention is bad not merely because Rule 26conferred more powers than a rule made or deemed to have been made underSection 2, Defence of India Act, could have conferred, but on the ground thatRule 26 had no existence at all as it was not saved by Section 21, Defence ofIndia Act. This leads us to the consideration of Section 21. Does Section 21save 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 thatit is not a saving section. I am not able to accept this view. The marginalnote of the section is "Repeal and saving." I fully appreciate that amarginal note cannot control a section but it certainly elucidates andillumines the meaning of a section. There are no words in the section whichindicate that the marginal note is a misdescription. I hold therefore thatSection 21 saves and continues rules made in the exercise of powers conferredby the Defence of India lOrdinance 5 of 1939. Now what rules does the sectionsave The learned Advocate-General contends that all rules valid or invalidwhich purport to be made under the Defence of India Ordinance were saved. I amnot 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 byor under the said Ordinance shall be deemed to have been made...in exercise ofpowers conferred by or under this Act as if this Act had commenced on 3rd dayof September 1939.

105. The section says that it saves rules made in theexercise of "any power conferred." It does not say that it savesrules made in the exercise of a power not conferred but believed to have beenconferred. Now, if it can be shown that no power was conferred upon the CentralGovernment by Ordinance 5, of 1939 to make such a rule as Rule 26 then itfollows that the rule was not saved by Section 21. This takes us to thedecision of the Federal Court in Talpades case . I agree withthe learned Advocate-General that the decision of a Court cannot repeal orannul a statute (Dicey: Law of the Constitution, Edn. 9, p. 98). I am notsuggesting that the decision of the Federal Court has annulled or repealed Rule26 and it is not necessary to say any such thing. But there is no bar to thisCourt deciding with reference to the Federal Courts judgment whether such arule like Rule 26 could validly be made under the provisions of ordinance 5 of1939. Having regard to what was said by the Federal Court in Talpades case and having regard to the fact that the rule making powersgranted to the Central Government by ordinance 5 of 1939 are exactly the sameas the rule-making powers granted by the Defence of India Act, this Courtcannot but come to the conclusion that the Central Government had no power tomake a rule like Rule 26 under Ordinance 5 of 1939. The rule was not made inthe exercise of "any power conferred." It was therefore not saved bySection 21, Defence of India Act. That being so, a detention purporting to bemade under Rule 26 which ceased to exist with the repeal of the Defence of IndiaOrdinance 5 of 1939 cannot be valid. Other grounds were urged to show that theOrdinance was ultra vires. They have been dealt with fully by my learnedbrother Mitter J. and I entirely agree with his conclusions regarding them andfor the reasons given by him.

106. I now come to the second argument, viz., even if theOrdinance be ultra vires, it cannot have the effect of validating Rule 26 asthat 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 Section3 of the Ordinance. I have held that Rule 26 ceased to exist with the repeal ofthe Defence of India Ordinance 5 of 1939 and that it was not revived by Section21, Defence of India Act. The present Ordinance makes no rules but merely seeksto enlarge the rule-making powers of the Central Government in order tovalidate Rule 26. Even if it be held that the Ordinance has validly enlargedthose powers, Rule 26 could not be validated as it was not in existence fromlong before the passing of the Ordinance. As there was no Rule 26, thedetention of the petitioners must be illegal as there is no power given to anyone by law to make any such order of detention. I shall sum up my conclusionson these two arguments urged on behalf of the petitioners. I hold in agreementwith my learned brother Mitter J. that the entire Ordinance is ultra vires theordinance-making powers of the Governor-General and that the orders ofdetention of the petitioners are bad and without jurisdiction. I hold furtherin agreement with my learned brother Mitter J. that Section 3 of the Ordinancecannot prevent the petitioners from challenging the validity of the orders ofdetention or prevent this Court from declaring that such orders are illegal andwithout jurisdiction. In arriving at this conclusion regarding the effect ofSection 3 I have given an additional reason with which my learned brotherMitter J. does not agree. I also hold that even if the Ordinance be within thepowers of the Governor-General the detention still remains illegal as Rule 26was not in existence when the detentions were made and was never re-enacted.

107. I now come to the third point urged, viz., that theOrdinance having been promulgated while the cases of the petitioners werepending, it cannot affect the decision of these cases which must be decided inaccordance with the law as it was when the rules were issued. It is a wellestablished principle that an amendment shall not be given retrospective effectunless there are clear terms in the Act making it retrospective. Here there areexpress terms giving the Ordinance retrospective effect but the petitionerscontend that there is another principle, viz., even if an amendment is givenretrospective effect, if there is an action pending at the time the amendmentwas made the Court will decide the action in accordance with the law as itstood before the amendment unless the Act clearly indicates that the amendmentwill affect pending proceedings. In this connexion our attention was drawn amongstothers to In re Joseph Suche and Co. (1876) 1 Ch. D. 48 at p. 50 and to UnitedProvinces v. Atiqa Begum . The learned Advocate-General reliedon 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 givenretrospective effect it will not affect the rights of the parties to thepending action unless the statute expresses such an intention either directlyor by necessary implication. In the absence of such an expression, the pendingaction must be decided according to the law as it was at the time the actioncommenced. I must guard myself by saying that these principles apply to achange in the substantive law and and not necessarily to a change in procedurallaw. It follows from this that the whole question is really a matter ofconstruction of the particular statute. In my opinion Sections 2 and 3 of theOrdinance read together leave no room for doubt that the intention of theOrdinance was to affect pending actions; The Ordinance if it had been validwould, in my opinion, have had to be taken into consideration in deciding uponthe validity of these orders of detention. The third main ground thereforefails. In this connexion I may notice an argument urged on behalf of thepetitioners that there is no power given to the Governor-General to make anOrdinance having retrospective effect. In support of this argument reliance wasplaced on the following words appearing, in Section 72 of Schedule 9.

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

108. It was argued that if an Ordinance is made retrospectiveits operation will commence from a date before the date of its promulgation andit may thus have force for a period longer than six months. I cannot acceptthis argument. All that Section 72 said is that the Ordinance shall have forcefor not more than six months from the date of its promulgation. I can see noreason why for the space of these six months the Ordinance cannot haveretrospective effect. The period during which a law has force is quite adifferent 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 pointout 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 monthshave been deleted. I now come to the fourth and last ground urged on behalf ofthe petitioners, viz. : Even if the Ordinance be valid the orders of detentionare bad as they were not made in accordance with the terms of Rule 26 which theOrdinance has sought to validate. In my opinion this ground must prevail. Rule26 says that the Provincial Government if it is satisfied with respect to anyparticular person that with a view to preventing him from acting in aparticular manner it is necessary to make an order directing him to be detainedit may make an order directing that he be detained. Before an order ofdetention under Rule 26 can be passed, the Provincial Government must besatisfied about certain matters. This satisfaction is the condition precedentof an order of detention and indeed it is the only ground upon which the ordercan rest. Now what is meant by "Provincial Government" Section 43a,General Clauses Act, defines Provincial Government thus:

(43a) "Provincial Government" as respects anythingdone or to be done by the "Provincial Government" after thecommencement of Part 3, Government of India Act, 1935, shall mean - (a) in aGovernors Province, the Governor acting or not acting in his discretion, andexercising or not exercising his individual judgment, according to theprovision in that behalf made by and under the said Act.

109. In short it means the Governor acting on the advice ofhis Ministers or the Governor acting without and against such advice when hemay so act. It follows from this that before an order of detention under Rule26 can be made the Governor acting as aforesaid must be satisfied as regardsthe matters mentioned in the rule. I am not unmindful of the fact that it isnot open to the Court to investigate whether there were sufficient grounds uponwhich the Governor could properly be satisfied. That is a matter entirely forthe Governor to decide. But it is certainly open to the Court to enquirewhether the Governor was in fact satisfied. The Advocate-General contended firstthat in view of the nature of the orders of detention passed in this case it isnot open to the petitioners to say that the Governor was not satisfied. Hepointed out that the orders were signed by a Deputy Secretary to the Governmentof Bengal and that they stated expressly that the Governor was satisfied. Hethen drew our attention to Section 59(1) and (2), Government of India Act, andargued that Sub-section (2) precluded any one from challenging the fact thatthe 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 Provinceshall be expressed to be taken in the name of the Governor. (2) Orders andother instruments made and executed in the name of the Governor shall beauthenticated in such manner as may be specified in rules to be made by theGovernor and the validity of an order or instrument which is so authenticatedshall not be called in question on the ground that it is not an order orinstrument made or executed by the Governor.

110. All that Sub-sections (1) and (2) lay down is that allexecutive orders shall be expressed in the name of the Governor and shall beauthenticated in a particular manner. If it is so authenticated, no one can saythat the order is not valid on the ground that it has not been made by theGovernor. The validity of the order does not become unchallengeable on allgrounds. 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 casethe argument is not that the orders of detention are bad be. e cause they werenot made or executed by the Governor; the argument is that the detention is badbecause the Governor did not satisfy himself on matters on which he was boundto satisfy himself before he could pass an order of detention. Nothing inSub-section (2) of Section 59 precludes this Court from inquiring whether theGovernor was satisfied.

111. Next the learned Advocate-General argued that theGovernor having stated that he was satisfied, it is not open to the Court toenquire 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 Courtto say that the Governor was satisfied on inadequate grounds or that theGovernors satisfaction was improper but it is always open to this Court toinvestigate whether in fact he was satisfied. Ordinarily the ipse dixit ofthe Governor would be quite enough and it would be extremely difficult for anyone to prove that the Governor was not in fact satisfied when he stated that hewas. But in this case there are ample materials to prove conclusively that theGovernor was not, in fact, satisfied. This takes me to the affidavits filed inthis case.

112. Of the nine detenues affidavits have been filed onbehalf of seven. On behalf of one of them viz., Sasanka Sekhar Sanyal, inaddition to the affidavit sworn by the detenue an affidavit has been sworn byhis cousin Nalinakshya Sanyal and to it was annexed the report of certainproceedings held in the Bengal Legislative Assembly during which the HomeMinister made certain statements in answer to questions put to him in theHouse. The learned Advocate-General objected to the report of the proceedingsbeing put in evidence. His contention was that the statements of the HomeMinister were not evidence at all, and that in any case they were not evidenceof the truth of the facts stated by him. In this connexion he referred us toGerald Lord Strickland v. Carmelo Mifsud Bonnici which wasdecided by the Privy Council on appeal from the Court of Malta. That casereally has no application as the facts were entirely different. Here the Home Ministerwas speaking on behalf of the Government as its spokesman and his answers toquestions put to him, as Home Minister, in relation to matters dealt by him asHome Minister, are admissible in evidence as admissions made by the Government.Government is a party to these proceedings and therefore these admissions arerelevant and admissible under the Indian Evidence Act against the Government.The Crown may of course show that the admissions were really not admissions orthat they were made under a mistake or that they were not binding on Governmentfor any other valid reason, but unless this is shown the admissions must betaken in evidence against Government. Government was given an opportunity toanswer the points involved in all the affidavits and the annexure and, onbehalf of the Crown, Mr. Porter the Additional Secretary, Home Department, hassworn an affidavit. After we decided to take the statements made by the HomeMinister into evidence it was agreed between the learned Advocate-General andthe petitioners that these statements of the Home Minister would be taken intoconsideration in the cases of all the detenus so far as they may apply to theircases without separate affidavits containing those statements being filed ineach case.

113. We pointedly asked the learned Advocate-General whetherit was his case that the Governor personally was satisfied in terms of Rule 26that in each of these cases an order of detention was necessary. He repliedthat 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 thecases of Debabrata Boy, Pratul Ganguly, Birendra Ganguly and Narendra Nath SenGupta, the Home Minister was also satisfied. In the case of Birendra Ganguly,the Home Minister was satisfied subsequent to the passing of the orders ofdetention. In the case of Niharendu Dutta Majumdar and Sasanka Sanyal theorders were passed without the consent of the Home Minister. In the cases ofBejoy Singh Nahar, Shibnath Banerjee and Noni Gopal Majumdar, Mr. Porter undera general order of the Home Minister passed the order of detention withoutfirst consulting the Home Minister. In the cases of Bejoy Singh Nahar andShibnath Banerjee subsequent to the order of detention materials regardingtheir cases were placed before the Home Minister and he has not passed anyorder withdrawing the order of detention made by Mr. Porter. In the case ofNoni Gopal Majumdar the materials have not as yet been placed before the HomeMinister for review.

114. The learned Advocate. General stated that exceptperhaps in the case of Sasanka Sanyal there was no question of the Governorbeing personally satisfied within the meaning of Rule 26. In Sasankaa case hesaid that the facts indicated that the Governor was personally satisfied butthere was nothing expressly stated in the affidavits to this effect. a Hiscontention was that the law does not require the Governor personally to besatisfied and that the Governor could discharge this function through hisMinisters or any of his officers without passing any specific orders delegatingthis 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 onbehalf of His Majesty by the Governor, either directly or through officerssubordinate to him.

115. I fail to see how this section can be of any help inthe decision of this point. The section deals with the executive authority of aProvince which is in His Majesty and which the Governor is empowered toexercise on behalf of His Majesty either himself or through his subordinates;it has nothing to do with a particular function imposed upon the Governor bythe Defence of India Act, viz., the duty of satisfying himself regardingcertain matters before he passes an order of detention under Rule 26 of thatAct. I cannot see how this particular duty can be included in the term"executive authority of a Province." Sub-section (2) of Section 49makes it impossible to include what I may shortly describe as "the duty ofsatisfaction" within the meaning of the words "executive authority ofa Province." That sub-section says that the executive authority of eachProvince extends to matters with respect to which the Legislature of theProvince has power to legislate. Now Rule 26 which imposes this duty ofsatisfaction relates to many matters regarding which the ProvincialLegislature cannot legislate; the functions imposed by the rule cannottherefore come within the meaning of the words "executive authority of aProvince." I would add in passing that I cannot subscribe to the view justexpressed by my learned brother, Khundkar J., that a Minister is an officersubordinate to the Governor. In my opinion he cannot in any sense be soregarded. Next I hold that Sub-sections (3) and (4) of Section 59, Governmentof India Act, which empowers rules of business to be made can be of noassistance to the Crown. These rules relate td the executive business of theGovernment. They cannot be made to apply to this particular duty. I am ofopinion that the Governor cannot delegate his duty of being satisfied withinthe meaning of Rule 26 by recourse to the provisions of Section 49 or Section59, Government of India Act. It may be contended that it could never have beenthe intention of the Defence of India Act that the Governor should look intothe case of every person sought to be detained. This is quite a reasonableview. The Defence of India Act has made express provision for this difficultyin Section 2(5).

2. (5) A Provincial Government may by order direct that anypower or duty which by rule made under Sub-section (1) is conferred or imposedon the Provincial Government, or which, being by such rule conferred or imposedon the Central Government, has been directed under Sub-section (4) to beexercised or discharged by the Provincial Government, shall, in suchcircumstances and under such conditions, if any, as may be specified in thedirection, be exercised, or discharged by any officer or authority, not being(except in the case of a Chief Commissioners Province) an officer or authoritysubordinate to the Central Government.

116. The Governor is given express power to make an orderdirecting this function to be discharged by some one else. He has made no suchorder under Section 2(5) except in the case of the District of Chittagong andthese cases are not of that District. He is therefore the only person who candischarge this function. He has certainly not discharged this function in thecase of any of the nine petitioners except possibly in the case of SasankaSanyal. In that case also, although this point was expressly raised and arguedat great length there is no positive evidence to show that he did so satisfyhimself. This being the position the orders of detention must be considered tohave been improperly made and the petitioners are entitled to be releasedforthwith from such detention. The statements of the Home Minister and theaffidavit of Mr. Porter disclose that certainly in seven out of the nine casesbefore us the orders of detention were made in gross violation of theprovisions of Rule 26, Defence of India Act.

117. I leave out of consideration in this connexion thecases of Debabrata Roy and; Pratul Ganguly who were detained in 1940. In thecase of Birendra Ganguly, Mr. Porter said that he passed the orders ofdetention under Rule 26 "in anticipation of the orders of the HomeMinister, Bengal, who on 18th September recorded his approval of continueddetention." Now there is no provision in Rule 26 for this procedure. Therecan be no detention under that rule until the detaining authority is satisfiedthat the detention is necessary for the purposes specified in the rule. Thereis no scope for an interim detention under Rule 26 which can be made absoluteafter satisfaction. Obviously the Home Minister was considered to be the personwho was to be satisfied yet an order of detention is made by the Additional Secretaryin anticipation of the Minister being satisfied. This seems a somewhatlight-hearted manner of administering the Defence of India Act. The order ofdetention of Birendra Ganguli was illegal in its inception and continued to beillegal as there is no provision in the Defence of India Act or in the rulesthereunder by which a detention, illegal in its inception, can be convertedinto a legal one by subsequent ratification. Again, the statement of the HomeMinister is that he adopted a certain device in these cases. When cases fordetention under Rule 26 were brought up to him he automatically passed ordersof detention under Rule 26 before satisfying himself that the detention wasnecessary; thereafter at his leisure he investigated the cases and thenconfirmed the orders in some cases and set them aside in others. He says he didthis because he wanted to give the arrested persons the greater creaturecomforts a detenue has and which a person under arrest under Rule 129 cannothave. I suppose the Home Minister was under the impression that he wastempering justice with mercy. He forgot however that he was disobeying asalutary and essential provision of the law that he was supposed to beadministering, viz., that no person should be detained under Rule 26 unless thedetaining authority first satisfied himself that the detention for the purposesspecified in the rule was necessary. I find it difficult to refrain fromremarking, in passing, that the granting of additional amenities like an extrablanket or so would afford cold comfort to a person who is told when theseamenities 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 notonly 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 Ministerdirected that as soon as a report of an arrest together with a recommendationby the police for detention was received an order for detention under Rule 26should at once be issued as a matter of course. Mr. Porters order in the caseof Birendra Ganguli which was passed on 14th September 1942 seems to have beenonly a piece of intelligent anticipation of this general order. In the cases ofBejoy Nahar, Shibnath Banerji and Noni Gopal Majumdar Mr. Porter says expresslythat he acted in accordance with this general order. His averment in the lastparagraph of his affidavit does not necessarily mean, that even in these caseshe was personally satisfied that an order for detention was necessary, for thepurpose mentioned in Rule 26. He says "I was satisfied that it wasnecessary to issue the order." The words used are significant. In view ofthe general order of the Home Minister issued on 1st October 1942, Mr. Portermight well have been satisfied that "It was necessary to issue theorder" once the police report was received without at all troubling to besatisfied that the detention of the petitioners was necessary in order toprevent them from acting in the manner mentioned in the rule.

119. As regards the petitioner Narendra Nath Sen Gupta, hisorder 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 ofthe Home Minister in the Assembly, it is reasonable to hold in the absence ofany averment to the contrary that this order was also passed beforesatisfaction in order to give the petitioners superior comforts. Hisdetention would also be improper even if we were to hold that it was not forthe Governor personally to be satisfied. As regards the orders of detentionpassed on Debabrata Roy and Pratul Ganguly they do not seem to be tainted withthe device adopted by the general order of 1st October 1942. These orders ofdetention were passed in 1940 but they would be improper on the other groundthat the Governor had not personally satisfied himself regarding the necessityof the detentions. In the case of Niharendu Dutt Majumdar there is nothing toshow who was satisfied. This order of detention is also not tainted by thegeneral order of 1st October 1942 as it was made without any preliminary arrestunder Section 129 and served in his house in his absence. In his case aninterim order of detention to ensure greater comforts was not necessary as hewas not in custody at the time of the order. Nevertheless the order is improperas it has not been shown that the Governor was satisfied.

120. In the case of Sasanka Sanyal, it is also clear thatthe device of 1st October 1942, was not employed. His custody after arrestpursuant to Rule 129, Defence of India Rules, was not automatically convertedinto detention under Rule 26 but the order is bad as it has not been shown thatthe Governor was personally satisfied that the detention was necessary. I thusfind that the orders of detention in these nine cases are not only illegalbecause the Ordinance is ultra vires but also improper because the orders ofdetention were passed in violation of the safeguards, slender though they be,contained in the rule itself. These rules must therefore be made absolute andthe petitioners set at liberty forthwith. It is not for us to criticise thewisdom 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, toadminister them according to law. We realise that in times of emergency theexecutive have to be given extraordinary powers which may have the effect ofkeeping out, to some extent, judicial scrutiny of acts done by the executive.But when through some unexpected crevice in these barriers against judicialaction a cry against an illegal act does reach this Court it becomes our dutyto be vigilant and to see that the liberty of none of His Majestys subjects istouched except in strict compliance with the law and neither the clouds of warnor the dust of political upheaval must be allowed to obscure our vision orblur that strict scrutiny which we must always bring to bear upon any actionwhich savours of oppression or injustice. I am tempted to quote the observationof Lord Atkin in Eshugbayi Eleko v. Officer administering the Government ofNigeria A.I.R. 1931 P.C. 670 which are very apt in this case:

In accordance with British Jurisprudence no member of theexecutive can interfere with the liberty or property of a British subjectexcept on condition that he can support the legality of his action before aCourt of Justice and it is the tradition of British Justice that Judges shouldnot shrink from deciding such issues in the face of the executive.

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

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Shib Nath Banerjee and Ors.vs. A.E. Porter and Ors.(03.06.1943 - CALHC)