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The King Emperor v. Benoari Lall Sarma And Others

The King Emperor
v.
Benoari Lall Sarma And Others

(Federal Court)

............................... | 04-06-1943


1. Varadachariar, C.J.:—This is an appeal by the Crown from a judgment of a Special Bench of the Calcutta High Court in a criminal revision case. It seeks the reversal of a pronouncement by the High Court to the effect that certain provisions of an Ordinance (entitled the Special Criminal Courts Ordinance) published by the Governor-General early in 1942 are void or ultra vires the Governor-General. It is sufficient at this stage to say that the Ordinance provides for the constitution of three classes of courts of criminal jurisdiction, described as Special Judges, Special Magistrates and Summary Courts, and empowers Provincial Governments to appoint to these offices persons with specified qualifications. The classes of cases to be tried by these tribunals are defined in terms which have given rise to the main contentions advanced in the case and this portion of the Ordinance will require detailed consideration. The Ordinance fixes the maximum sentence which each of these tribunals can impose and declares that certain provisions of the Criminal Procedure Code as to the mode of trial, e.g., those relating to commitment, trial by jury etc., are inapplicable to proceedings under the Ordinance. The provisions of the Criminal Procedure Code relating to summoning of witnesses, recording of evidence, granting of bail, granting of adjournments, etc., are also modified. A right of appeal is given in certain cases from the decisions of Summary Courts to Special Magistrates and in certain cases appeals lie from the decisions of Special Magistrates to Special Judges. There is however no appeal from the decision of a Special Judge, but a limited provision is made for what is described as a “review” by a person nominated by the Provincial Government from among the Judges of the High Court. Except as stated above, there is to be no right of appeal from any order or sentence of a court constituted under the Ordinance and no court is to have authority to revise such order or sentence or to transfer any case from such court or to make any order under s. 491 of the Criminal Procedure Code or have any jurisdiction of any kind in respect of any proceedings of any such court. It is finally declared that the provisions of the Criminal Procedure Code shall apply to proceedings under the Ordinance except in so far as they are inconsistent with the provisions of the Ordinance. The preamble recites that an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts. (Section 1 (3) however enacts that the Ordinance shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province. A later amendment added “any disorder within the Province” to the emergency-causes enumerated in the clause.

2. The Ordinance was brought into force in Bengal early in April, 1942. The respondents here, who were the petitioners before the High Court, were tried by a Special Magistrate functioning under the Ordinance and sentenced to rigorous imprisonment for a term of two years. They invoked the revisional jurisdiction of the High Court, contending that the Ordinance was ultra vires, and that the revisional jurisdiction was therefore not excluded by s. 26 of the Ordinance. On the same ground, they contended that the Special Magistrate had no jurisdiction to try them.

3. A variety of arguments seem to have been urged before the High Court, in support of the revision petition. It is at present sufficient to refer to two of them:—

(1) Section 72 gives the Governor-General power to make an Ordinance only in cases of an existing emergency, to be determined by the Governor-General and not in a case of a future or prospective emergency, the existence of which is left to the Provincial Government to decide.

(2) The purpose of the Ordinance can be effectuated only by legislation; but in the most essential matters, the Ordinance does not legislate; it leaves it to the Provincial Government or to someone empowered by the Provincial Government to do so. These matters are (a) exclusion of interference by the High Court with the orders of the Special Courts under the Ordinance; (b) the setting up of Special Courts; and (c) the conferring upon those courts of jurisdiction to try particular cases or class of cases.

4. On the first question, the Chief Justice and Khundkar J. accepted the contention advanced on behalf of the Crown. But Sen J. was of the opinion that as the Ordinance showed on its face that in the opinion of the Governor-General an emergency necessitating the measure had not arisen at the time of its promulgation, it was ultra vires the Governor-General. He also held that the Ordinance was ultra vires on the additional ground that the Governor-General had delegated to the Provincial Government the function of deciding whether or not an emergency requiring the application of the Ordinance had arisen.

5. The second question was split up into several subheads, to facilitate discussion. In the end, the learned Chief Justice held that “as the Ordinance in ss. 5, 10, 14 and 16 empowers persons other than duly authorized to provide public servants with safeguards the contravention of which should give them a right of action for appropriate relief. The distinction between the consequences flowing from the contravention of a statutory rule, such as the provision corresponding to s. 240 (3) then was and the contravention of a statutory-provision itself, such as the provision corresponding to s. 240 (2) contained in s. 96B of the Government of India Act, 1915, is well brought out in the judgments of the Judicial Committee in B. Venkata Rao v. Secretary of State for India in Council and B.T. Bangachari v. Secretary of State for India in Council. In the last case their Lordships observed:—

“……. It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time. It is plainly necessary that this statutory safeguard should be observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.”

6. In Attorney-General v. De Keyser's Boyal Hote Lord Atkinson in the course of his speech quoted with approval a passage from a judgment of the Master of the Rolls to the following effect:—

“Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided, by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Grown could at its pleasure disregard them and fall back on prerogative”

7. Lord Atkinson went on to observe:—

“I further concur with him in his analysis of the provisions of the Acts passed in 1803, 1804, 1819, of special crimes declared as such by the Ordinance, nor of crimes specially arising out of the war emergency or internal commotion, but even in respect of ordinary climes under the Indian Penal Code. It was, to say the least, an embarrassing position for the High Court to be called upon to examine the validity of a law which has meted out such treatment to itself. The restrained observation of the learned Chief Justice that “the position is a difficult one for us to deal with” seems true in a wider sense than the context may suggest.

8. The provisions of the impugned Ordinance may now be examined in some detail. It will be convenient to group them under three heads:—

(a) Provisions constituting the new or Special Courts, denning their powers and regulating their relations inter se;

(b) provisions stating the differences in the procedure governing trials, appeals etc. between cases tried by the ordinary criminal courts and cases tried by the Special Courts; and

(c) provisions defining or marking off the cases to be tried by the Special Courts and taking them out of the category of cases which in the normal course would have been tried by the ordinary criminal courts.

9. Head (a) may be briefly dealt with, as there is little comment to make thereon. Sections 3, 4, 9 and 15 provide for the constitution of the Special Courts, ss. 5, 7, 10, 12, 16 and 18 lay down the limits of their jurisdiction and powers and ss. 13 and 19 regulate the relations between them in the matter of appealability. Section 8 provides for the “review” in certain oases of the decisions of a Special Judge by a Judge of the High Court nominated by the Provincial Government.

10. The provisions relating to head (b) may be subdivided into two categories or considered from two points of view: (1) as they affect the protection or privileges secured to an accused by the ordinary law, and (2) as they affect the jurisdiction and powers of the High Court in particular. Under the first sub-head, the following provisions may be noted. Section 27 saves the application of the Criminal Procedure Code and of other laws to proceedings before the Special Courts, to the extent they are not inconsistent with the provisions of the Ordinance. See also s. 2 (2). There are certain changes introduced by the proviso to s. 6 (1), by s. 13 (2) and s. 19 (2), and by ss. 17, 21, 23, 24-A and 25, some of which at any rate are serious enough. But as they do not bear on the questions raised for decision in the case, we pass them by with a brief notice. The Special Judge corresponds to the Sessions Judge under the Code, but the necessity for commitment and the requirement of trial by jury (or with the aid of assessors, as the case may be) are dispensed with, and he is directed to follow the procedure applicable to warrant cases. The finality of his decision, subject to review in certain cases by a person nominated from among the Judges of the High Court, is provided for by s. 8 already referred to. As regards proceedings before the Special Magistrates and the Summary Courts, there is no radical departure from the procedure under the Code except that the right of appeal has been restricted. Pausing here for a moment, two results flowing from the provisions already referred to may be noted: (1) Any sentence passed by a Special Magistrate (who corresponds to a First Class Magistrate) is absolutely unassailable if it is a sentence of fine, whatever the amount may be — and s. 12 fixes no limit to the fine he may impose — or if it is a sentence of imprisonment for a term not exceeding two years. (2) While a right of appeal is allowed in cases where the maximum sentence imposed does not exceed seven years, such right is denied in cases where heavier sentences, including the death penalty, are imposed, when the appeal will ordinarily lie to the High Court. It is not a recognition of the High Court as such, when the normal cursus curie is excluded and an undefined power of “review” is conferred on a person nominated by the Government, though it be from amongst the Judges of the High Court.

11. [Sub-head (2)]. The provision which vitally affects the jurisdiction and powers of the High Court is that contained in s. 26 of the Ordinance whereby, without any reference to the High Court by name, all authority to revise the order or sentence or to transfer any case or to make any order under s. 491 of the Criminal Procedure Code and all other jurisdiction of any kind is excluded in respect of any proceedings of the Special Courts. In view of the obvious anxiety of the framers of the Constitution, as shown by s. 223 of the Constitution Act and paragraph 13 of the Instrument of Instructions, to preserve the powers and prestige of the High Courts unimpaired, the effect and the implications of this section of the Ordinance require to be closely examined. It may generally be stated that ss. 435, 439 and 526 of the Criminal Procedure Code ensure supervision and control by the High Court over the subordinate judiciary, particularly the magistracy, and s. 491 (which in India replaces the general law relating to habeas corpus) invests the High Court with the means “of putting a veto upon any proceeding not authorized by the letter of the law” and in effect “determines the whole relation of the judicial body to the executive” (Dicey's Law of the Constitution, 9th edn., p. 222). The High Court is deprived of both these kinds of power when any case is dealt with under the Ordinance. It is not without reason that for more than three quarters of a century it has been deemed necessary and proper to keep the revisional powers of the High Court under the Criminal Procedure Code much wider than the revisional powers under the Civil Procedure Code (s. 115, C.P.C). Apart from the importance of safeguarding the life and liberty of the subject, the difficult position of the magistracy in this country demands it, as much in the permanent interests of the magistracy itself as in the interests of the citizen. Those who are familiar with the pages of the Indian law reports know how this revisional power has justified itself. But as has been frequently pointed out, the existence of this power even in reserve is a potent and wholesome influence, apart from its actual exercise. That its existence is as much called for today as it was in the middle of the last century will appear from three instances which we take at random. In a recent case before the Chief Court of Sind, Jam Nabi Bakhsh v. Crow the learned Judges (Davis C.J. and Weston J.) had to deal with an order of a District Magistrate permitting the withdrawal of a prosecution in one case and ordering further enquiry (under s. 436) in a counter case. The facts and circumstances set out in the judgment speak for themselves. One or two passages will serve to show what the learned Judges felt about the proceedings in the court below. The Public Prosecutor is stated to have appeared “in his capacity as a private advocate” in the petition for further enquiry and “as Public Prosecutor” in the connected proceedings wherein he asked for leave to withdraw the prosecution from the District Magistrate who had transferred the complaint to his own file. The learned Chief Justice says: “This, in our opinion, was a most improper procedure. It is our experience in this Province that Public Prosecutors do not withdraw cases except upon instructions of the District Magistrate, who in this case presided in the Court. These proceedings, we think, merely illustrate the difficulties which arise when the District Magistrate fails to follow, in letter and in spirit the provisions of the law by which he himself is bound and which it is his duty to respect We think that in accepting the application the District Magistrate allowed himself to be used in a manner which, in our opinion, was clearly subversive of the proper administration of justice in his district.”

12. The other two instances are recent cases heard in the Allahabad High Court, one by Ismail J. and the other by the learned Chief Justice. They have not yet been reported, but as they were noticed in the press, we requested the Allahabad High Court for, and by their kind courtesy have been furnished with, copies of the two judgments. It so happens that both of them are cases tried under the Special Criminal Courts Ordinance and in both instances the learned Judges of the High Court before whom the matter was attempted to be brought found that the charges against the accused had nothing to do with the recent disturbances or with any subversive movement; and, though they were of the opinion in both the oases that the conviction was wrong, they felt helpless to do anything in the matter, because of s. 26 of the Ordinance. They had to console themselves with an expression of their opinion as to what the law was. In the first case, King Emperor v. Charan Das, all that appeared in the evidence was that one day a man was found by the police to have in his house small change to the extent of Es. 99. How he came by it, and when and whether it came to him at all after the rule under the Defence of India Act about acquisition of coins had been framed, there was nothing in the case to show and yet he was convicted and sentenced to eighteen months' rigorous imprisonment. There was no right of appeal nor the power of revision; and this is what the learned Judge says in the course of his judgment: “If my interpretation [of the rule] is correct, it follows that the accused has been wrongly convicted In the present case, I have gone into the merits of the question because I feel that the conviction of the accused is illegal upon a correct interpretation of sub-clause (d)” [rule 90 (2) (d) of the Defence of India Rules].

13. In the case before the learned Chief Justice, King Emperor v. Panda Inderjit, a father and three sons belonging to a zamindar family paying a government revenue of Rs. 5,000 per annum and income-tax of Es. 1,000 per annum were found to have 157 maunds of wheat stored in their house and some unlicensed arms. On a prosecution under rule 81 of the Defence of India Rules, each of the four members was fined Es. 2,000 (rupees two thousand). The learned Chief Justice says: “I cannot refrain from observing that the amount of fine imposed by the Special Magistrate was to my mind preposterous” and he adds that but for the provisions of the Ordinance “I would have taken cognisance of the case in the exercise of my revisional jurisdiction and, in that case, I would have set aside the fine imposed on each of the three sons. I, however, am unable to do so as the provisions of s. 26 of the Ordinance debar me.” There was however an application before the learned Judge objecting to the trial by the Special Magistrate, in view of a Notification of the Provincial Government and that gave him an opportunity to say what the Magistrate should do. He said: “I am alive to the fact that, in his capacity as Special Magistrate, Mr. Brij Bahadur is immune from the judicial supervision of this Court. He must, however, appreciate that he is also a Magistrate of the First Class and in that capacity he is under the immediate subordination of this Court. It is therefore his duty to take note of all the observations contained in this order and decide to try the case according to the ordinary law.”

14. Under s. 526 of the Criminal Procedure Code, the High Court can direct the transfer of a case from the court to another, if it is made to appear that a fair and impartial enquiry or trial cannot be had in the former court. This provision has no doubt been often resorted to by the accused without sufficient justification and unnecessary delay and obstruction have thereby been caused. But none can take exception to the soundness of the principle embodied in it or to the need for its exercise in appropriate cases. In the first instance, the Ordinance excluded this power without substituting any other provision to meet such a contingency: [s. 14 and s. 16 (2) could hardly be held to be a substitute]. Later on, certain limited powers of transfer have, by ss. 25-A and 25-B, been conferred upon the District Magistrate, the Sessions Judge and the Provincial Government; but the exclusion of the High Court's powers stands.

15. We have been reminded that the way the High Court's powers have been dealt with in the Ordinance is a question of policy with which the Court is not concerned. This ignores the bearing of this circumstance on the decision of the question whether the exercise of the power conferred on the Provincial Government or the District Magistrate under ss. 5, 10 and 16 of the Ordinance can be described, in the language of some of the cases, as merely doing something ancillary, sub-ordinate, or incidental, or by itself involves results of such seriousness and magnitude that its exercise could not have ‘been legally entrusted to these authorities. This has also an important bearing on the question of the relation of the Ordinance to the provisions of s. 223 of the Constitution Act.

16.Proceeding now to head (c), the relevant provisions are those contained in ss. 5, 10 and 16 of the Ordinance. Sections 10 and 16 run in the same terms as s. 5, except that in s. 16 the District Magistrate or the Chief Presidency Magistrate has been substituted for the Provincial Government. It will therefore be sufficient to note the terms of s. 5. It provides that “a Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct”. A later amendment refers to cases transferred under s. 25-A, but such cases need not be separately considered, as they must have been instituted in some other Special Court in accordance with the provisions of the Ordinance. It is at this stage necessary to stress the fact that the Ordinance has not repealed the Criminal Procedure Code in whole or in part or declared it or any of its provisions inoperative in any part of the country or in respect of any defined categories of crimes. All that has been done is to provide that in respect of proceedings before the Special Courts, the provisions of the Code shall apply only so far as they are not inconsistent with the Ordinance, and even the provision in s. 26 excluding the powers of revision, habeas corpus, transfer etc. is governed by words referring to the acts of, or proceedings in, the Special Courts. It is therefore important to consider (in the words of Khundkar J.) how “the field of trial by Special Courts is demarcated from the field of trial by ordinary courts or the category of cases to be tried by the Special Courts has been carved out”.

17. To appreciate the force of the criticism against the provisions of ss. 6, 10 and 16, it will be useful to know how they are being worked in Bengal, as it has not been suggested that that method of administration is not in conformity with the Ordinance. So far as is known, no general rules similar to statutory rules or bye-laws have been framed to demarcate the field. Of course, the Ordinance does not require such general rules to be framed and much less to be published. Announcements in the Gazette seem to have authorized the District Magistrates of certain districts to exercise the powers of a “servant of the Crown” under ss. 5 and 10 of the Ordinance. Circulars seem to have been issued by the Secretary to the Government giving instructions as to how the District Magistrates should exercise their powers under these sections. The case out of which this appeal has arisen was tried by a Special Magistrate as the result of a specific order to that effect by the District Magistrate. In another instance, the District Magistrate is said to have made an order to the effect that “cases arising out of the recent disturbances shall be tried by Special Magistrates'. Cases are said to have accordingly been brought before Special Magistrates on a certificate from the police to the effect that the cases arose out of the recent disturbances. The learned Chief Justice of the Calcutta High Court felt constrained to observe: “This is extremely unsatisfactory from the point of view of the subject. It makes the police the arbiter of a man's right as to how he shall be tried” — we may add, also the authority to decide whether the High Court can exercise any of its powers in the matter or not. Again, the Chief Justice said: “The man's rights as regards appeal and revision are not pre-determined by law No man knows which court he may be tried in. That is left to the District Magistrate nominally to decide; in fact it may be decided by the police.” In another part of his judgment, the Chief Justice stated that a circular received from the Government of Bengal intimated “that District Magistrates are instructed to use the Ordinance only in cases of hoarding and profiteering”. These are offences created by the Defence of India Rules and have nothing to do with the kind of disorder contemplated in s. 1 (3) of the Ordinance. In the Allahabad cases already referred to, it is on the other hand stated that instructions have been issued by the United Provinces Government that the Ordinance procedure should be utilised only in cases arising out of “the recent disturbances or connected with the existing subversive movement”. We refer to these facts not with a view to express any opinion on the merits or demerits of this state of the law or of the administration of criminal justice, but only to show that whatever the intention and purpose of the Ordinance gatherable from the preliminary provisions may be, ss. 5, 10 and 16 are so worded that the Ordinance procedure can be utilised by the executive authorities at their will and pleasure, against anybody, for the trial of any crime, without any restriction imposed or guidance given by the Ordinance as to the cases to which its indisputably drastic provisions are to be applied. One aapect of the question accordingly arising for decision in the case is whether ss. 5, 10 and 16 of the Ordinance do not in effect delegate to the executive authorities therein specified power which should have been exercised by the legislative authority.

18. In the latter part of 1942, the question of the validity and effectiveness of the impugned Ordiance seems to have come up for decision before four other High Courts [see Salig Bam v. EmperorSitao v. CrownSheo Baran Singh v. Emperor and Emperor v. Shreekant Pandurang Ketkar. In all these cases, the Ordinance was held to be valid and effective. A variety of points have been discussed in the judgments delivered in those cases, including the question of the sufficiency of the declaration of emergency discussed at length by Sen J. in the present case. But so far as we can gather from the judgments, the particular line of criticism which has met with unanimous acceptance at the hands of the Calcutta Bench in this case does not appear to have been advanced or discussed in those cases. It has no doubt been held in all of them that on the terms of the Ordinance, there was no delegation of legislative authority to the Provincial Government, but that was in answer to the argument based on s. 1 (3) of the Ordinance.

19. It will be convenient to take up first, the point on which the three Judges of the Special Bench of the Calcutta High Court have been unanimous; and in so doing, it may be useful to clarify the basis of the lower Court's decision, the objections urged against the

20.Ordinance and the appellant's answers thereto. Though the vague expression “ultra vires” has been frequently used, there is no serious suggestion that the subject-matter of the Ordinance lies outside the Ordinance-making powers of the Governor-General. Counsel for some of the respondents, no doubt, in, the course of his arguments before us, contended that the Ordinance was beyond the power of the Indian Legislature and the Governor-General's Ordinance-making authority, for the reason that it affected the jurisdiction of the Federal Court in so far as it took away the appellate and revisional jurisdiction of the High Court. There is little force in this objection. All that the Constitution Act declares about the jurisdiction of the Federal Court is that appeals shall lie to that Court from the decisions of the High Court, when certain points are involved therein. Such a provision does not admit of the interpretation that the jurisdiction of the High Court should never be affected by Indian legislation because the indirect effect thereof might be to affect the number or classes of cases which might otherwise come up before the High Court and thus afford a possibility of their being carried on appeal to the Federal Court. Under the express terms of s. 223, it is within the power of the Indian Legislature to alter the jurisdiction and powers of the High Court.

21. One serious point for decision arises out of the provision in s. 292 of the Constitution Act to the effect that all the law in force in British India before the 1st of April, 1937, shall continue in force in British India “until altered or repealed or amended by a competent Legislature or other competent authority”. The Criminal Procedure Code and other special laws which contain special provisions relating to the jurisdiction of courts dealing with crimes provided for in such special laws are among the laws thus continuing in Operation. Section 5 of the Code provides:—

“5. (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt With according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

22. Sections 28 and 29 of the Code run as follows:—

“28. Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried—

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.

29. (1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable.”

23. So long as these three sections have not been “altered, repealed or amended by a competent Legislature or other competent authority”, they must govern every criminal proceeding both as regards the tribunal by which a crime is to be tried and as to the procedure to be followed (including rights of appeal, revision, etc.). It is contended on behalf of the Crown, (i) that in view of s. 1 (2) of the Criminal Procedure Code, it is not necessary that the Code should be “repealed or amended” before the special jurisdiction and powers conferred by the Ordinance and the special procedure prescribed therein can take effect, and (ii) that, in any case, the necessary repeal or amendment has been effected by the Ordinance itself.

24. Next, s. 223 of the Constitution Act provides that the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court shall be the same as immediately before the 1st of April, 1937, “subject to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act”. Counsel for the Crown contends that by virtue of the provision in s. 311 (6) of the Constitution Act, the jurisdiction and powers of the High Court can be modified by an Ordinance and that this has been done by the impugned Ordinance. As already indicated, a further question arises, whether ss. 5, 10 and 16 of the Ordinance do not in effect delegate to the executive authorities therein specified an undefined and uncontrolled power in respect of matters which should have been provided for by the Legislative authority itself. It is replied on behalf of the Crown that this is a matter of policy which it is not for the Court to discuss.

25. The learned Chief Justice of the Calcutta High Court was of the opinion that the relevant provisions of the Criminal Procedure Code had not been repealed by the Ordinance itself, but that ss. 5, 10 and 16 empowered the Provincial Government and persons authorized by them “to repeal ad hoc certain provisions of the Criminal Procedure Code and of the Letters Patent of the High Court”. This is stating the position from the divestitive view point, if we may use a convenient term, that is, by referring to the manner in which the jurisdiction of the regular courts is attempted to be excluded. The other learned Judge (Khundkar J.) took the view that the Ordinance has conferred on the Provincial Government and its authorized officers “a power to do by individual direction in particular cases what should properly have been brought about by legislation or at least by rule [It] is a power to effectuate jurisdiction of Special Criminal Courts by making orders in individual cases or groups of cases and the exercise of that power is entirely unconfined by any rule or condition.” In another place, he said: “The jurisdiction of the Special Courts under the Ordinance is undetermined until it is attracted to a particular case by the order of an executive authority.” This seems to deal with the matter from what may be described as the investitive point of view, that is, the way in which the Special Courts are invested with jurisdiction to try any particular case. If it should be held that the Ordinance had not itself repealed the relevant provisions of the Criminal Procedure Code in respect of any particular case, the question would arise [apart from the appellant's argument based on s. 1 (2) of the Code]: Whether on a proper construction of ss. 5, 10 and 16 of the Ordinance, and whatever may be the language or drafting device employed, it is not the executive act of particular officers passed in individual cases or classes of cases that really takes away the jurisdiction of the regular courts and in effect invests the Special Courts with jurisdiction in respect of those cases.

26. Dealing first with the contention that the material provisions of the Criminal Procedure Code have been repealed or amended by the Ordinance itself, the position is — and this is admitted by the Crown — that, in the Province of Bengal, there are now two sets of courts, the ordinary criminal courts and the Special Criminal Courts, both working side by side, but with fundamental differences in their procedure and very serious consequences to the prejudice of the accused flowing out of these differences. The allotment of a case or of a group of cases to the Special Courts, which will prevent their going before the regular courts, undoubtedly results from the order, general or special, passed by the District Magistrate (or Presidency Magistrate) under ss. 5, 10 and 16 of the Ordinance. But unless, prior to the moment when the District Magistrate so allots the case for trial by a Special Court, the provision of the Criminal Procedure Code as to the Court by which a ‘particular case is to be tried has been excluded in a manner recognised by law, it is difficult to see what authority the District Magistrate, as an administrative officer, can have to direct it to be tried by any other court. Counsel for the Crown at one stage suggested that the Criminal Procedure Code would not apply to the Special Courts except to the extent to which it was made applicable by the Ordinance itself. But he admitted later on that in view of s. 5 of the Code “all offences under the Indian Penal Code” must be “investigated, enquired into, tried and otherwise dealt with” according to the provisions of the Code. The same principle applies even to offences under any other law, subject, of course, to any other enactment regulating the manner or place of investigation, enquiry, trial etc. As already stated, the Ordinance itself creates or declares no new offences; and the combined effect of ss. 5, 28 and 29 of the Code is that unless those provisions are specifically excluded by law, the Code will govern the institution and trial of every criminal case.

27. We have carefully considered the terms, of the Ordinance; we find it impossible to accede to the contention that before and independently of the order under s. 5, 10 or 16, the relevant sections of the Code are excluded by the Ordinance. The material provisions of the Ordinance only enact that in respect of cases tried by the Special Courts, a certain procedure shall be followed. But this does not bear on the question which cases are to be tried by the Special Courts as distinguished from cases to be tried by the regular courts. The words in ss. 10 and 16 which exclude particular offences from the jurisdiction of Special Magistrates and Summary Courts respectively cannot affect the question, because their jurisdiction to try any particular case even when it does not fall within the excluded categories arises only on and out of the order of the authorized officer. Section 27 is worded not as a provision excluding the Criminal Procedure Code, but as a provision extending it to proceedings before the Special Courts so far as they are not “inconsistent with the provisions of the Ordinance”. But even if one should be prepared to read s. 27 as an “excluding” provision, it can take effect only if and after any particular case goes before any of the Special Courts.

28. Counsel for the Crown, when pressed to say at what point of time, according to him, the repeal or exclusion of the relevant provisions of the Criminal Procedure Code as to the court which was competent to try a case took effect, was driven to maintain that the repeal or exclusion took effect as soon as Special Courts were constituted under ss. 3 and 4 of the Ordinanoe. This position is obviously untenable. The Ordinance contains two sets of provisions, one group which may be called the constitutional group and the other the procedural group. It is not disputed that notwithstanding the constitution of Special Courts and the appointment of officers thereto, any crime committed by any person in the area for which the Special Courts have been constituted may be tried by the regular courts under the normal procedure, unless and until an order under s. 5, s. 10 or s. 16 of the Ordinance is passed by the executive authority. It is only thereafter that the “procedural group” of sections come into operation, so far as any particular case is concerned. It has not been and cannot be suggested that according to the scheme of the Ordiriarioe, there will be anything like a repeal of the relevant provisions of the Code for a specified area or as from a specified time or in respect of certain categories of offences described in terms known to the criminal law. As the learned Judges of the High Court point out, till an order under s. 5 is passed nobody can predicate whether any case or type of case will go before the regular courts and be governed by the provisions of the Code or go before the Special Courts and be governed by the procedure prescribed by the Ordinance. Thus, it is the order and the order alone which can, if at all, bring about the repeal or exclusion of the relevant provisions of the Code. It has not been contended that an executive order can have any such effect.

29. Reference was made in this connection to the decisions of the Judicial Committee in The Queen v. Burah and Powell v. Apollo Candle Co. These pronouncements of their Lordships bear upon another question arising in the case, namely, that relating to the delegation of power by the Legislature to the executive and will be referred to again in that connection. At present, it is necessary to deal with them only in so far as they were relied on to support the contention that what an executive authority may do under the power given to it by an enactment must be deemed to take effect not as its act but as the act of the Legislature under whose authority it acts. When the facts and circumstances of these two cases are examined, they do not support the proposition which the learned counsel for the Crown is obliged to advance for this part of his argument. In Burah's case, the Legislature itself had enacted that the district called the Garro Hills should be excluded from the operation of the laws prescribed by the Bengal Acts and Eegulations and all such laws to be passed in the future and s. 9 of the Act was interpreted by their Lordships as announcing a decision by the Legislature that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing courts and from the governance of the laws passed or to be passed by the regular Legislature. There was thus no question of the repeal of the existing laws having to be effected by an act of the executive authority. All that was left to the Lieutenant Governor was to determine the time when this repealing law passed by the Legislature should come into operation in the Khasi and Jaintia Hills. It is on this state of facts that their Lordships observed: “The proper Legislature has exercised its judgment as to place, person, laws, powers and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute.” It is important to notice that once the Lieutenant Governor made that notification, the repeal would take effect in respect of the whole area comprised in the notification and there could be no question of one law applying for A and another law applying at the same time and at the same place for B and so on or of successive orders to be passed by the executive authority as and when each case arose. Fur-ther, there was no pre-existing provision of law which the Lieutenant Governor would be contravening when he fixed the time for the Act taking effect in the new area. But, in the present case, we are faced by the difficulty created by the Criminal Procedure Code which, so long as it stands, precludes the executive authority from assigning a particular ease to any Gourt other than the one which was entitled to try it under ss. 28 and 29 of the Code; and as we have endeavoured to show, these provisions of the Code do not cease to hate effect according to the scheme of the Ordinance till after the executive authority has made its order.

30. In Powell's case the Customs Act in question, after enumerating certain dutiable articles, had itself authorized the levy of duty by the Governor on articles which in the opinion of the Collector may possess properties in whole or in part which could be used for a similar purpose as a dutiable article. All that was left to the Governor was to deal with the report of the Collector as to a particular article possessing properties of the kind above described and fixing the rate of duty in proportion to the degree in which the article approximated in its qualities or uses to the dutiable article. If we may use an expression frequently employed in a line of cases, it was only a “fact-finding” function that was entrusted to the Governor by this provision and all that their Lordships held was that when a Governor thus levied a duty it must be deemed to be levied by authority of the Legislature and not of the executive.

31. A passing reference was made to Bugga v. The King Emperor, but it was realised on an examination of the judgment of their Lordships, that the decision itself had no bearing upon the question arising in the present case, because it related to the interpretation of s. 65, sub-ss. (2) and (3), of the Government of India Act, 1915. No such question arises in the present case. All that counsel for the appellant could say was that eminent counsel who appeared for the appellant in that case had not raised a point like the question now raised, though the Ordinance then under discussion (IV of 1919) had empowered the Local Government to direct by general or special order that a Commission constituted under some other Ordinance might try any person charged with certain offences. Without a more detailed knowledge of the facts and circumstances of that case, it is impossible to found an argument merely on the circumstance that learned counsel had not there raised an argument similar to the present one. It must be remembered that in that case, there had been a declaration of Martial Law before the enactment of these

32.Ordinances and Bengal Regulation X of 1804 enacts the consequences of such declaration.

33. Turning now to the contention based on s. 1 (2) of the Code, the clause provides that nothing therein “shall affect any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force”. The saving of other “special form of procedure” is of little consequence in this case, because we feel no doubt that if and when a case is tried by one of the Special Courts, the provisions of the Criminal Procedure Code will apply only in so far as they are not inconsistent with the special procedure prescribed in the Ordinance. That is the natural operation of the expression, “nothing, herein shall affect”. The saving of any “special jurisdiction or power conferred by any other law” will no doubt have the result, that the provisions conferring such special jurisdiction or power will operate even without a repeal, amendment, or modification of the Code, because the Code itself saves such jurisdiction or power. In this sense and to this extent, no difficulty under s. 292 of the Constitution Act will arise. On this footing, two questions will have to be considered, namely, (1) whether the Ordinance confers any “special jurisdiction or power” within the meaning of s. 1 (2) of the Code and (2) even so, what is the nature of the power entrusted to the executive officers under ss. 5, 10 and 16 of the Ordinance.

34. In answering the first of the above questions, the very general terms of the Ordinance create difficulty. What is precisely the significance of the word “special” in the expression “special jurisdiction” For instance, a law may provide that offences of a particular description or offences committed in a particular locality or offences committed with, a particular purpose or by a particular class of persons shall be tried not, by the courts, constituted under the Code but by other courts, or that an offence of that kind which under the provisions of the Code will be triable by a particular grade of court, say, for instance, a court of session, may be tried by or only by another grade of court, may be by a High Court or may be by a First Class Magistrate. That would obviously be a case of “special jurisdiction”. But if an Act says that an offence of any kind may be tried by Special Courts, it no doubt gives the Special Courts an existence and a jurisdiction which they did not possess before; but the operation of the expression “nothing herein shall affect” is not easy to define in such a case. Ordinarily, the expression implies that notwithstanding the Criminal Procedure Code these Courts can function, but they can function only in the manner provided for in the Ordinance itself. The result reached in the present case, as admitted on all hands, is not that one set of courts has superseded the other set of courts to any extent, but that the two sets of courts can function side by side and concurrently, with concurrent jurisdiction over all offences. Further, even this argument leaves unsolved the problem that there is no demarcation by the law of the field of the Special Courts from the field of the regular courts. The demarcation is left to be made only by the order of the executive officer as per terms of ss. 5, 10 and 16. On these facts, there arises the question whether such an order can be made the basis of the Courts' jurisdiction. It will no longer be a question of the efficacy of the order to “repeal” or “amend” the Criminal Procedure Code within the meaning of s. 292 of the Constitution Act, but a question as to the efficacy of the order to form a basis on which to found the Special Courts' jurisdiction.

35. And this leads to the further question whether the delegation of such a power to the executive officers without laying down any conditions or requirements with reference to which the executive officers' order is to be made is a valid delegation. In those cases where a statute provides that a person who is suspected of a defined crime or a crime committed for particular purposes or a crime committed in specified circumstances may by order of an executive officer be sent before a Special Court, the order of the executive officer merely implies that he has satisfied himself that there are reasonable grounds for bringing a charge of such an offence against the accused. In such a case, the direction of the executive officer will not be the foundation of the Court's jurisdiction, but will fall within the description that it is the discharge of a fact-finding duty. There will be no uncontrolled or unguided power left in the hands of the executive officer or an arbitrary power to discriminate between A and B, though both of them might have committed the same offence in the same place and under the same circumstances. In the former case, it may reasonably be held that it is the nature of the offence that brings it within the jurisdiction of the Special Court, but in the latter case, it is only the order of the executive officer that brings it within that Court's jurisdiction to the exclusion of that of the regular courts.

36. Our attention was drawn in this connection to what were claimed to be similar provisions in s. 69 of the Indian Army Act, 1911, and s. 80 of the Indian Air Force Act, 1932. An examination of the scheme of the two Acts will show that these two provisions, especially when read in the light of s. 549 of the Criminal Procedure Code, do not furnish any real analogy to the present case. Under the Army and Air Force Acts, any person who is subject to those Acts (as defined in the Acts themselves) becomes liable to be tried by court-martial even for what are called “civil offences”. It is only a concession shown to him and a consideration shown to the ordinary criminal courts that the jurisdiction of the latter is not wholly excluded in such cases. Even then, it is not by the mere fiat of an officer given in individual cases without any principles laid down by authority to guide him that the choice between the court-martial and the normal courts is made. Power is given to the regular criminal court to demand that in respect of such “civil offences” proceedings are to be instituted before itself and the final decision is left to the Central Government, Section 549 of the Criminal Procedure Code enacts that the Central Government may make rules consistent with the Code and the Army and Air Force Acts as to the cases in which persons subject to military or air force law shall be tried by a court to which the Code applies or by court-martial. The question is thus governed by statutory rules. Reliance was also placed upon the provisions of some of the Ordinances passed during the last twenty or twenty-five years. Some of them are martial law Ordinances which stand on a wholly different footing. In some of the other Ordinances, special provision had been made for offences of specified kinds. There are no doubt a few instances in which the provisions are more general, but as their validity can be no more said to be beyond doubt than the validity of the present Ordinance, a reference to them will not carry the position of the Crown further than the present Ordinance itself.

37. Lastly, we may point out that the argument based upon s. 1 (2) of the Criminal Procedure Code, though it may furnish some answer to the objection based on s. 292 of the Constitution Act, can afford no answer to the argument based upon s. 223 of the Constitution Act. So far as the powers of the High Court rest not on the provisions of the Criminal Procedure Code continuing in operation at a particular moment but upon the Letters Patent and upon the saving made by s. 223 of the Constitution Act of all its jurisdiction and powers, as they existed on the 1st April 1937, the provision in s. 1 (2) of the Code that the Code shall not affect special laws can be of no avail. It has no doubt been, contended that the powers of the High Court have in fact been excluded by s. 26 of the Ordinance itself; but s. 26 is not worded as a general repeal or modification of the powers of the High Court, but limits itself to proceedings of or orders passed by the Special Courts. The provision is thus inseparably linked up with the provision in ss. 5, 10 and 16 in respect of the institution of proceedings in these Courts. It may be argued that the High Court's powers of revision are excluded by the mere fact that the Special Courts have been created as courts not subject to the appellate jurisdiction of the High Court [cf. Sheo Nandan v. Emperor. But the power under s. 491 is independent of the character of the court concerned. The High Court's powers are thus in effect made to depend upon the order of the executive authority under these three sections. The question will therefore remain whether this will be sufficient compliance with s. 223 of the Constitution Act; Another aspect of the same matter will be this: Assuming that by reason of s. 311 (6) of the Constitution Act, an Ordinance passed by the Governor-General can affect the powers of the High Court in the same way as an Act passed by the “appropriate Legislature” referred to in s. 223, can the Governor-General delegate this power to the executive officers as in effect he has done under ss. 5, 10 and 16 of the Ordinance In this connection, it ought to be noted that unlike s. 292 of the Constitution Act, s. 223 does not contain the words “or other competent authority” after the words “any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act”.

38. The feature of the Ordinance to which the strongest objection has been taken not merely by counsel for the accused but also by the learned Judges of the High Court is that which places it in the power of the District Magistrate — who practically represents the prosecution — to discriminate between man and man in the same locality — it may be even in respect of the same or a similar crime — and to send one of them for trial by a Special Court, with all the risks and disadvantages which the special procedure involves, while leaving the other to be tried in the normal course by the regular courts. It will require no special knowledge of Indian conditions to appreciate what such a power in the hands of the executive means and involves. The limited option allowed by ss. 178 to 183 of the Code, to the Government or to a complainant, to choose as between two or more courts bears no analogy. That option is available only in the few cases carefully defined in the Code itself and relates after all only to the locality of the trial. It does not involve a change in procedure nor deprive the accused of the safeguards and privileges provided for him by the Code. Any real hardship to the accused, if it arises out of such choice of forum by the Government or the complainant can be remedied by suitable orders under s. 526.

39. The Advocate-General of India asked us to presume that the power under ss. 5, 10 and 16 would be exercised by responsible officers and only on reasonable grounds. In answer to this, we must observe that when a question of principle is involved, it is scarcely fair to complicate it by introducing considerations of personalities. It must also be pointed out that s. 5 of the Ordinance does not even prescribe that the servant of the Grown to be empowered thereunder should be at least of a certain official grade. The strongest answer however to this argument is furnished by what is stated to have occurred in Parliament in August, 1940, when the Bill, which subsequently became the Emergency Powers (Defence) (No. 2) Act, 1940, 3 & 4 Geo. 6, Ch. 45, was before the House of Commons. When there were complaints as to certain defects in the Bill, particularly the absence of a provision for appeal, “the Government asked Parliament to rely upon their reasonable use of the wide powers, remembering the opportunity which Parliament has of annulling Defence Eegulations”. The Bill was however subjected to fierce criticism in the House of Commons, on the ground that, according to its terms, Special Courts could be empowered to impose even the death penalty without any right of appeal. Members were unwilling to rely on an undertaking to provide in the Eegulations for appeals from Special Courts. The Government finally promised to introduce an amendment in the House of Lords and provision was accordingly made in the statute itself for review of the decisions, particularly in cases in which a sentence of death was passed. [Butterworth's Emergency Legislation Service — Statutes Supplement No. 6, Preliminary Note on p. 20. Sir Cyril Carr also refers to this incident, in his Lectures on Administrative Law.] When one takes note of the relation of Parliament and of public opinion in England to the working of a statute and of the corresponding situation in this country, especially in relation to Ordinances, and when one also remembers that this debate in the House of Commons took place on the eve of the German blitz and in spite of the fact that according to the main statute [2 and 3 Geo. 6, Ch. 62, s. 8] every order containing Defence Regulations should be laid before Parliament and could be annulled by a resolution of the House, the weakness of the argument based on the trust to be placed in the executive authorities becomes obvious.

40. As counsel for the Crown attempted to found an argument on Eegulation No. VII of the Defence (War Zone Courts) Regulations, 1940 (dated August 7, 1940), it is necessary to make a passing reference to them. It is specially worthy of note that the Regulations of August 7, 1940, as well as the Defence (Administration of Justice) Regulations of June 19, 1940, differ fundamentally from the impugned Ordinance in that they do not make it possible for the executive authorities to discriminate between one accused and another. As we have already pointed out, that is the most serious defect in the impugned Ordinance. The scheme of the English Regulations is to provide that all persons charged with indictable offences before justices in certain areas should, when it is not practicable to hold the trial in that area, be committed to be tried at the assizes at other named places, that is, on the assumption that military exigencies may make it impossible to hold the court at particular places. The next step is to make provision for a less dilatory and more flexible procedure and even here no room has been given for discriminating between one, man and another. As pointed out in Butterworth's Preliminary Note, the new Regulations replace committal to assizes or quarter sessions by committal for trial by a war zone court. A comparison of the Regulations themselves and of the rules made by the Lord Chancellor thereunder with the impugned Ordinance will constitute an interesting study in contrast between the methods adopted in England and the methods adopted in this country to deal with the emergency; but we refrain from doing so, as it will take us into a long digression. It is sufficient to refer to Regulation VII on which learned counsel for the Crown based an argument that something in the nature of an option was left to military or police officers to choose whether an accused should be tried by a war zone court or by one of the regular courts. This is based upon a misreading of that Regulation. The following note in Butterworth's publication under that Regulation will explain its scope and effect and also the meaning of the proviso to paragraph (1) of Regulation VII:— “Note:— It will be seen from this [Regulation that the procedure in war zones in relation to summary offences and up to the committal for trial in relation to indictable offences is, subject to the power of short-circuiting the jurisdiction of justices under the proviso to para. (1) [which by virtue of the provisions of Eegulation VI (1) ante will enable proceedings in respect of a summary offence to be initiated before a war zone court], the normal procedure of information or charge before justices.” Read in the light of this note and of the context, all that the proviso to paragraph (1), on which counsel relied, means is that, at the choice of the officers named, the proceedings may be initiated directly in the war zone court instead of coming to that court through the normal channel of information or charge before justices. That is what the note refers to as short-circuiting [cf. rule 4 of the Lord Chancellor's Rules, dated 19th September 1940]. There is no question of sending one man for trial and sentence by one court and sending another man accused of the same or a similar crime for trial and sentence by another kind of court, at the option of any executive officer; and it will be noticed that even the limited power given by the proviso to the officer is available only when he “considers it expedient by reason of the nature of the offence or by reason of the military situation” to adopt that particular course. The jurisdiction of the war zone courts over any particular case does not result from the choice or order of an officer of the Crown, but by the general declaration in Eegulation VI that a war zone court shall have jurisdiction to try any person charged with an offence punishable whether by virtue of any enactment or at common law by the High Court, a court of assizes, a court of quarter sessions, or a court of summary jurisdiction. [See also Eegulation XVI which authorizes the Lord Chancellor to make the necessary rules and excludes the operation of all other enactments as to practice and procedure.]

41. In passing, we may observe that a comparison of the provisions in s. 8 of the impugned Ordinance with Eegulation XII of the War Zone Courts Eegulations shows how defective s. 8 as it stands is. Paragraphs (a) and (b) of s. 8 correspond almost literally to paragraph (1) of Regulation XII. Paragraph (2) which gives the accused some voice in the matter of a “reference” even in cases where he is not sentenced to death or to transportation for life or imprisonment for seven years or more, is omitted. Paragraph (4) of the English Regulation (No. XII) lays down in detail what powers the reviewing authority shall have and practically approximates that authority to the Court of Criminal Appeal acting under the Criminal Appeal Act, 1907. [See also rules 12 to 17 of the Lord Chancellor's Rules.] All this has been omitted from the Ordinance, with the result that counsel for the Crown found it impossible to say what exactly were the powers of, or the procedure to be followed by, a reviewing authority.

42. It remains to deal with the question whether the entrustment of powers to the executive in the form and in the words found in ss. 5, 10 and 16 of the Ordinance is permissible and valid. Counsel for the Crown maintained that this question is concluded by authority in his favour. “The Advocate-General of India stated his position in the following terms: “The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done, to the latter no valid objection can be made.” This proposition is taken from an American case — and it has been repeated and reaffirmed in several later cases — but the Advocate-General desired to adopt it as his argument, without conceding that American decisions can afford us safe guidance on the point, in view of the alleged peculiarity of the doctrine prevailing in the American courts. He also drew our attention to the decision of the High Gourt of Australia in Baxter v. Ah Way.

43. In support of the argument that the matter is concluded by authority and that the test laid down by their Lordships of the Judicial Committee as governing this question is different from that adopted in the American courts, reliance was placed on the decisions in The Queen v. BurahHodge v. The Queen and Powell v. Apollo Candle Co.. We may add that another decision in the same category is that in Shannon v. Lower Mainland Dairy Products Board. A careful examination of these pronouncements of their Lordships does not support the contention that in their view, every kind of delegation by the Legislature is unquestionable. On the other hand, they have taken care to limit their pronouncements by reference to the nature and terms of the particular enactments impugned before them and by reference to what has prevailed as a matter of long legislative usage. They have no doubt definitely laid down that the maxim delegatus non potest delegare has no bearing on the question, because the Indian and Dominion Legislatures are not delegates of the Imperial Legislature. But even the American authorities do not rest on this proposition.

44. In Burah's case, their Lordships referred to two matters in respect of which the High Court had fallen into error; one was as to the position and powers of the Indian Legislature and the other as to the “nature and principles of legislation”. With reference to the first, they held that having regard to the true position of the Indian Legislature, the maxim above quoted had no application to the case, as the Indian Legislature was not an agent or delegate of the Imperial Parliament. They next proceeded to deal with what they described as error as to “the nature and principles of legislation”. They first observed that it was not within the power of the Indian Legislature to create a new Legislature and endow it with legislative capacity. This substantially corresponds to what is sometimes spoken of as “abdication” of its function by the Legislature. They then proceeded to examine the facts of the case to show that there was really no delegation at all in the case, but that everything had been decided by the Legislature itself, so that the case fell within the category of what they: Lordships described as “conditional legislation”. All that was left to the discretion of the Lieutenant Governor was to specify the time and the manner of carrying the law into effect. They finally relied upon the fact that such legislation had long been in vogue in India and was sanctioned both by usage and by considerations of convenience. It would not, in these circumstances, be right to regard the case as an authority for the broad proposition that no legislation is examinable by the court with a view to determining the nature and extent of the delegation. There is nothing in their Lordships' pronouncement inconsistent with the way in which the principle has sometimes been stated: for instance, in Street on the Doctrine of Ultra Vires, based on the earlier work of Mr. Brice (1930 ed., p. 430), the principle is stated to be “a Legislature will not ordinarily be permitted to shift the onus of legislation though it may legislate as to main principles and leave details to subordinate agencies”.

45. In Hodge v. The Queen, their Lordships had to deal with a case in which, following a long and well-known practice, the Legislature had entrusted to a Board of Commissioners authority to enact regulations to give effect to an Act. And the very point urged by Mr. Davey (as he then was) in his argument on behalf of the respondents was that that was “no delegation of legislative authority, but only of the power to make bye-laws”. Their Lordships reaffirmed the proposition that the maxim “delegatus etc.” had no application to such cases (see p. 132). They described the authority entrusted to the Board as only “ancillary” to the main legislation, justified by long usage and both necessary and convenient, as “without it an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail”. It was argued that the entrustment even of this power might amount to an “effacement” of the Legislature by its own act. To this, they gave the answer that notwithstanding such entrustment, the powers of the Legislature remained intact, as it could at any time take the matter directly into its own hands. Powell v. Apollo Candle Co. does not carry the matter further. It reaffirms the proposition laid down in Burah's case and in Hodge v. The Queen. The decision on the facts has already been referred to.

46. There are some observations of their Lordships relevant to this question in Russell v. The Queen. Speaking of a provision for an enactment being brought into force in particular localities at the instance of a majority of the electors of counties and cities, their Lordships observed that this “does not delegate any legislative power whatever”; and their reference in this connection to Burah's case confirms the interpretation which we have placed above on that case. In this case also, their Lordships relied upon the longstanding practice to insert provisions of this kind in statutes. In Shannon's case, the challenge was against a provision authorizing the Lieutenant Governor in Council to set up a Board or administrative body for the regulation of natural products marketing. It is obvious that in their Lordships' opinion this was not a cage in which legislative power was delegated to the Lieutenant Governor. Indeed they speak of the objection as one against delegation of “so-called legislative powers”. As usual, they rely upon the fact that such provisions are contained in numerous enactments. As they in terms approved of the judgment of Martin C.J. in the lower court, it is worth noticing how the learned Chief Justice of British Columbia had dealt with the question, when the case was before the court of appeal there [Shannon v. Lower Mainland Dairy Products Board. Referring to the argument that the Legislature “has illegally delegated its functions to the Lieutenant Governor in Council, because it has passed only the skeleton of an Act and left it to the sole discretion of the Lieutenant Governor to clothe it with flesh and blood, thereby in effect abdicating its functions”, the learned Chief Justice said: “The answer to that submission depends upon the language of the statute and all that I can usefully say is that after reading the whole statute it does not support the argument”.

47.We are of the opinion that there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American authority which the Advocate-General of India proposed to adopt as his own argument. If that principle is sound, it may, in the absence of more positive guidance from the pronounce-ments of the Judicial Committee, be useful to refer to the way in which the effect and implications of the principle were explained in a recent judgment of the Supreme Court of the United States in Panama Refining Co. v. Ryan. Delivering the judgment of the majority in that case, Chief Justice Hughes observed that the legislative provision which was then assailed as amounting to an improper delegation of powers to the President was defective in that it did not state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the State's permission. It establishes no criterion to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress thus declares no policy as to the transportation of the excess production. It gives to the President an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down, as he may see fit The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. These observations are literally true of the provisions of as. 5, 10 and 16 of the impugned Ordinance here. That the Supreme Court of the United States did not act on a principle or theory different from that adopted by the Judicial Committee in the authorities already referred to, will be seen from the following observations of Chief Justice Hughes on p. 421:— “The Congress is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is vested. Undoubtedly, legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply”. In fact so long ago as 1825, Chief Justice Marshall, while observing that Congress might not delegate powers which are strictly and exclusively legislative, added: “The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details”. [Wayman v. Southard.] In the Panama Refining Co.'s case , the dissenting Judge (Justice Cardozo) did not differ from the majority as to the principle itself, but only on its application to the particular enactment then before the court. The following observations of the learned Judge deserve attention: “I concede that to uphold the delegation there is need to discover in the terms of the Act a standard reasonably clear whereby discretion must be governed”. The principle thus stated both by Chief Justice Hughes and by Justice Cardozo has nothing whatever to do with the maxim delegatus non potest delegare, but is only the amplification of what was referred to by the Judicial Committee in Burah's case as “the nature and principles of legislation”. Whatever may be said of the early American authorities, the later decisions have uniformly taken a liberal and practical view. In the words of a reviewer, there has been a change in the conception of legislative power of which the delegation will be unconstitutional. “The legislative enactment came to be regarded as valid if it laid down a general rule for the guidance of administrative officers though delegating power to them to exercise discretion to fill in details”. [28 Harvard Law Review 95; 41 Harvard Law Review 96 — Carr's Lecture on Administrative Law, pp. 16 to 19 — Cooley on Constitutional Limitations, 8th ed., Vol. I, pp. 227-235 — Willough by's Constitutional Law of the United States, 2nd ed., paragraphs 1076 to 1079.]

48. The basis of the difference between the English and the American view points in this matter was explained by Sir Courtenay Ilbert as follows: “All free countries recognise the importance of maintaining the principle that a distinction ought to be drawn between the legislative, judicial and executive functions of government and that these functions ought to be exercised by separate bodies. But they differ very much in the application of this principle. The principle of separation of powers, as it is sometimes called, was a leading tenet in the political philosophy of the 18th century and is no where more emphatically affirmed than in the Constitution of the United States, with results which are not always conducive to good government. There is always and everywhere a tendency on the part of those responsible for the three great branches of government respectively to regard the others as rivals, to fret at limitations on their powers and to poach on the provinces of their neighbours. And this tendency is increased and accentuated if too hard and fast a line is drawn between organs and functions which ought to work in harmony with each other and the relations of which to each other require the most delicate adjustment for their proper working. One result of denying to the legislature at Washington the control which the legislature at Westminster exercises over the executive is that Congress is always trying to regulate by bill matters of detail which in this country would be left and, in the opinion of most of us, would properly be left, to be regulated by administrative action and by administrative regulations”. [Lecture on Methods of Legislation, delivered before the University of London in October, 1911, and published by the University in 1912, pp. 48 and 49.] Sir Cyril Carr refers to the same topic in the following observation: “An absolute insistence upon the separation of legislative, executive and judicial power must rule out any delegation of legislative power to the executive” [Columbia Lectures on Administrative Law, p. 16], and by way of contrast he refers to the “close union and nearly complete fusion” of executive and legislative powers which became a notable characteristic of the British Constitution at least from the days of Bagehot (Ibid p. 19).

49. There are thus two important results flowing from the character of the British Constitution: (1) that on account of the absolute sovereignty of Parliament, no question of the constitutional invalidity of any parliamentary enactment can ever be raised in a court of law, and (2) that on account of the intimate contact and close co-operation between Parliament and the Ministry and the doctrine of the responsibility of Ministers to Parliament, the objection as to the propriety of delegating legislative functions to the executive government has never been strong in recent times. It need scarcely be pointed out that in both these respects, the constitutional position in India approximates more closely to the American model than to the English model. Hence the value of the decisions of the United States, so far as they lay down any principle, apart from the manner in which they may apply the principle to the facts of particular cases.

50. Even in England, the distinction is recognised “between matters which must be regulated by Parliament itself and matters which may be left to departmental regulations or to the exercise of individual discretion.

51.On the question where the line should be drawn, there will be much difference of opinion, but that it can be drawn and should be drawn all will admit”. [Ilbert on Legislative Methods and Forms, 1901 ed., p. 218.] The fact that under the English system, this distinction is only a matter of policy or reasonableness is no reason for thinking that even under systems which permit courts of law to examine the constitutionality of statutes, objections based on this distinction must be regarded only as objections to policy and not legal objections. Though Sir Courtenay does not clearly indicate where he would draw the line, his reference in this very Chapter (Chapter X) to the difference between “lawyer's law” and “administrative regulations” would seem to suggest his line of demarcation, the former including what we ordinarily speak of as substantive law and adjective law (Ibid., pp. 209 and 219). Sir Cyril Carr seems to echo the same idea when, accounting for the absence of protest against departmental encroachment in the later Victorian age, he remarks: “The new laws were not lawyer's laws” (Administrative Law, p. 21). Even as late as 1871, the Judges of the High Court in England protested on constitutional grounds against a High Court of Justice Bill which proposed to authorize a Committee of the Privy Council to make or alter rules of procedure. “Let Parliament fix the guiding principles”, they said, “and let the Judges settle the subordinate points of procedure”. The Judges ultimately got their way (See Carr's Administrative Law, p. 21). The reasonableness of a distinction of the kind above stated is implicit in the recommendations of the Committee on Ministers' Powers (1932). Dealing with the topic of the delegation of legislative power, the Committee concluded that the practice was “both legitimate and constitutionally desirable for certain purposes, within certain limits and under certain safeguards” (Carr, p. 27), and they qualified their tolerance of delegated legislation by specifying four exceptional types which would require special vigilance. The first exception is the power to legislate on matters of principle. They also excepted “delegation conferring so wide a discretion that it is impossible to know what limit the Legislature intended to impose” (Carr, p. 38 and foot-note). The author adds: “In theory of course the Legislature ought to settle the principles and delegate the details, but occasionally the Legislature shirks its duty.”

52. It will thus be seen that except for the fact that an objection of the present kind cannot be entertained in a court of law against parliamentary legislation, there is very little difference between the principle accepted in England and that accepted in America, though in practice the objection may not in many cases be seriously pressed in England because of the relations there sub-sisting between the executive and the Legislature. As Sir Courtenay Ilbert said, it may not always be easy to draw the dividing line, and that is just what an American constitutional writer points out: “The question when an administrative discretion is so broad as to amount to a legislative power is one that may not be answered according to any fixed formula, but has to be answered in each individual case according to the judgment of the court” (Willoughby, para. 1079). But where, as in ss. 5, 10 and 16 of the impugned Ordinance in this case, the power is left to the executive without any limitation whatever or any attempt at an enunciation of policy or rule of guidance, the question of “degree” or “drawing the line” will not arise at all. In an Australian case, the principle stated in the American cases [as, for instance, in Field v. Clarke has been criticised as allowing a considerable latitude of application [per Dixon J. in Victorian Stevedoring etc. Co. v. Dignan. But the soundness of the principle itself cannot seriously be questioned. In the judgments delivered by Dixon and Evatt J.J. in the last mentioned case, there was a full discussion of the question both on principle and on authority as well as a review of the history of the doctrine in America. The actual decision upholding the validity of the delegation in the particular case was based on a course of decisions including Baxter v. Ah Way referred to by the Advocate-General of India. It is however noteworthy that Dixon J. added: “This does not mean that a law confiding authority to the executive will be valid, however extensive or vague the subject-matter may be, if it does not fall outside the boundaries of federal power. There may be such a width or such an uncertainty of the subject-matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority” (Ibid, p. 101). Evatt J., in giving reasons for rejecting the doctrine based on the separation of legislative and executive powers, relied on the circumstance that, unlike America, Australia had an executive which is responsible to Parliament and he added: “This close relationship between the legislative and executive agencies of the Commonwealth must be kept in mind in examining the contention that it is the legislature of the Commonwealth and it alone which may lawfully exercise legislative power”(Ibid, p. 114).

53. In Baxter's case, the question put by Griffith C.J. in the course of the argument (at p. 630) and some of the observations in his judgment indicate that far from repudiating the doctrine of the American cases, the learned Judge was of the opinion that his view was in accord with the principle adopted in America; in the legislation impugned before him; the Governor in Council was held to have been authorised only to decide a question of fact, namely, the question of expediency of importing articles into the Cpmmonwealth. The statute, after enumerating a number of articles, as “prohibited imports”, added under the same category, “all goods, the importation of which may be prohibited by proclamation”. The objection taken was that the power to prohibit import must be exercised by the Legislature and cannot be delegated to the Governor in Council. After referring to the opinion of Marshall C.J. (already cited) and to the decision of the Privy Council in Burah's case, the learned Chief Justice held that the case was one of “conditional legislation”, the Governor in Council being merely the “authority to ascertain and declare the fact” as to the expediency of admitting particular goods into the Commonwealth at a particular time. O’Connor J. referred to and followed the American authorities. All the learned Judges also relied upon the fact that similar provisions had long found a place in many statutes.

54. The circumstance that the matter has in the present case been dealt with by an Ordinance and not by a legislative enactment of the ordinary kind raises a further question under this head. The decisions in Burah' case  and in the cases following it rest on the ground that within the limits of the subject-matter assigned to them by the Constitution Act, the Indian and Dominion Legislatures have and were intended to have “plenary powers of legislation as large and of the same nature as those of Parliament itself”. Legislation by Ordinance has no doubt been given the same effect as ordinary legislation and the ambit as to the subject-matter is the same in both cases. But there are two fundamental points of difference which have a material bearing on the present question: One is that by the very terms of s. 72 of the Ninth Schedule to the Constitution Act, the operation of the Ordinance is limited to a period of six months (and even now it is only temporary, though the particular limit has been removed), and secondly, it is avowedly the exercise of a special power intended to meet an emergency. These two circumstances differentiating legislation by Ordinance from normal legislation afford ground for doubting the applicability of the principle of Burah's case to Ordinances. Further, it is only consistent with the special character of this kind of law-making that the responsibility for it should have been laid on the Governor-General whose personal judgment and discretion must be taken to be a very important factor. It may be that his position too cannot be described as that of an “agent” or “delegate”, but the very conception underlying the Ordinance-making power so connects it with the personal judgment and discretion of the Governor-General that the objection against delegation to subordinate executive authorities of any matter of principle is even more serious in this case.

55. It has no doubt been always recognised that some authority in the State should be in a position to enact necessary measures to meet extraordinary contingencies. Section 72 of the Ninth Schedule makes ample provision for it; the question is about the manner of exercising that power. Before applying the analogy based on the English practice as to emergency legislation, certain differentiating circumstances must be borne in mind. In England even, emergency legislation is parliamentary legislation or Order in Council passed under the authority of parliamentary statute and it is always subject to parliamentary control, including in the last resort the right to insist on the annulment or modification of the Order in Council or even the repeal or modification of the statute itself. Under the Indian Constitution, the Legislature has no share in or control over the making of an Ordinance or the exercise of powers thereunder, nor has it any voice in asking for its repeal or modification. Again, anything like a serious excess in the use of special emergency powers will, under the English practice, be a matter which Parliament can take note of when the time comes for passing the usual indemnity Act on the termination of the emergency (see Dicey's Law of the Constitution, p. 236, and Carr's Administrative Law, pp. 69 and 70). That is not the position here, as the indemnity can be provided by an Ordinance. As against all this, the only safeguard provided in the Indian Constitution is that the matter rests entirely upon the responsibility of the Governor-General. This only confirms the argument against delegation of such responsibility, at least without laying down in clear and definite terms the limits and conditions governing the exercise by executive officers of powers conferred upon them by the Ordinance. Today, in India, the situation is complicated by the fact that when large and undefined powers are entrusted to Provincial Governments and their executive officers, the constitutional limitations, conventions and etiquette implied in the theory of provincial autonomy make it difficult even for the authority promulgating the Ordinance to interfere to check the improper use of such powers.

56. In his book on “Delegated Legislation” (based on his Cambridge Lectures and published in 1921), Sir Cyril (then Mr.) Carr, observed: “In so far as delegated legislation contains the germ of arbitrary administration, every possible safeguard must be devised” (p. 26). He suggested five safeguards, of which two deserve to be noticed here: (a) the limits within which the delegated power is to be exercised are to be definitely laid down, and (b) the further point to be insisted on is publicity. The second safeguard does not merely mean publication, but was explained by the author himself as follows: “Like all other law, it ought not only to be certain, but also ascertainable”. Reviewing these safeguards after the lapse of about twenty years, and “in the light of riper acquaintance” (as he claimed) Sir Cyril, in his recent lectures on Administrative Law, explains the first of the above safeguards as follows: “I meant that the control by the law courts (by way of declaring a rule or order ultra vires) should be made as simple and easy as possible by inserting precise words in the enabling Act” (p. 51). A comparative study of the Ordinances promulgated by the Governor-General during the last two decades will reveal a progressive diminution in the definiteness and completeness of the relevant legislative provision and a corresponding expansion of the limits of executive intervention in the determination of the forum and the procedure applicable. The earlier Ordinances were limited to defined categories of crimes with reference to their nature, time, place or purpose, and the choice of the-forum even in such cases was left to the Governor or the Government to make. The practice has now been extended to all offences and the choice of the forum (with all its serious consequences under the present Ordinance) has been entrusted to any servant of the Crown who may be authorized by the Provincial Government. This sufficiently illustrates the truth of Sir Cyril (then Mr.) Carr's observation above cited.

57. As we have already observed, the considerations and safeguards suggested in the foregoing passages may be no more than considerations of policy or expediency under the English Constitution. But under Constitutions like the Indian and the American, where the constitutionality of legislation is examinable in a court of law, these considerations are, in our opinion, an integral and essential part of the limitation on the extent of delegation of responsibility by the Legislature to the executive. In the present case, it is impossible to deny that the Ordinance-making authority has wholly evaded the responsibility of laying down any rules or conditions or even enunciating the policy with reference to which cases are to be assigned to the ordinary criminal courts and to the Special Courts respectively and left the whole matter to the unguided and uncontrolled action of the executive authorities. This is not a criticism of the policy of the law — as counsel for the Crown would make it appear — but a complaint that the law has laid down no policy or principle to guide and control the exercise of the undefined powers entrusted to the executive authorities by ss. 5, 10 and 16 of the Ordinance.

58. We are of the opinion that the Ordinance has not by itself repealed ss. 28 and 29 of the Criminal Procedure Code (if such repeal were necessary — as we think it was), that notwithstanding drafting devices, it is only the order of the executive authority passed under s. 5, 10 or 16 of the Ordinance, in respect of each case or group or class of cases that in fact operates to repeal those provisions of the Code, to divest the regular courts of their jurisdiction and to invest the Special Courts with jurisdiction to try any particular case or group or class of cases. We are also of the opinion that such executive orders cannot in law have any such effect and that ss. 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised. The powers of the High Court, though in form taken away by s. 26 of the Ordinance, are in fact only taken away by the order of the executive officer, because it is only on such order or direction being given that any case becomes a proceeding before a Special Court for the purpose of s. 26. We accordingly agree with the High Court that the court which purported to try and convict the respondents had no jurisdiction to do so.

59. The validity of the Ordinance was also attacked on another ground based upon the language of s. 72 of the Government of India Act, 1915. The opening portion of that section declares that “the Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof”. It is obvious that the power to make and promulgate Ordinances under that section is exercisable by the Governor-General only in cases of emergency. It was contended that the Preamble of the Ordinance read with s. 1 (3) thereof showed that the Governor-General did not think that an emergency existed at the time when he made and published the Ordinance. The Preamble and the first section of the Ordinance are as follows:—

“Whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal courts;

Now, therefore, in exercise of the powers conferred by Section 72 of the Government of India Act as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor-General is pleased to make and promulgate the following Ordinance:—

1. (1) This Ordinance may be called the Special Criminal Courts Ordinance, 1942.

(2) It extends to the whole of British India.

(3) It shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded:

60. Provided that any trial or proceeding which was pending at the time of such rescission may be continued and completed as if the provisions of this Ordinance were still in force”.

61. It was conceded that, as laid down by their Lordships of the Privy Council in Bhagat Singh's case, the question whether an emergency does or does not exist at any particular time is one for the Governor-General and for him alone and that a court has no right to inquire whether an emergency did in fact exist at the time of the making and promulgation of an Ordinance, if the Governor-General has judged and declared that it did exist. It was contended however that this last condition had not been fulfilled here. The argument was developed in this manner: Sub-section (3) of the first section defines the emergency which alone could justify the bringing into force of the Ordinance in any part of British India. It follows therefore that that was the emergency which the Ordinance was designed to meet. It is true that the Governor-General was under no obligation to take anybody into his confidence with regard to the nature of the emergency which in his judgment necessitated the making and promulgation of the Ordinance. But he having chosen to do so, the courts could not deliberately shut their eyes to the definition, of the emergency which the Governor-General had himself set out. The emergency which was made by the Governor-General a condition precedent to the coming into force of the Ordinance must be the emergency which in his opinion necessitated the making and promulgation of it. The argument runs that in this particular case, after having declared in the Preamble that an emergency had arisen which made it necessary to provide for the setting up of Special Criminal Courts, the Governor-General had gone on to enact in sub-section (3) of the first section that the Ordinance shall not come into force in any part of British India unless the Provincial Government was satisfied of the existence of an emergency arising from certain specified contingencies. This could only have one meaning, namely, that the Governor-General apprehended an emergency and published the Ordinance to meet it but he was not satisfied that the emergency had actually arisen in any part of British India. For, if he had then judged that the emergency existed in any part of British India, he would have declared the Ordinance in force in that part of British India immediately. The Governor-General did not himself enforce the Ordinance in any part of British India. He left that to be done by the Provincial Governments, on being satisfied of the existence in their respective areas of an emergency arising from certain specified contingencies.

62.The Ordinance is dated the 31st December, 1941, and was published in the Gazette of India of the 2nd January, 1942. We were informed by counsel for the Crown that the earliest date on which it was brought into force in any part of British India was the 3rd April, 1942, when it was put into force in the Province of Bengal. We were further informed that the High Court of Judicature at Fort William in Bengal and criminal courts subordinate thereto have throughout continued to function in the Province in the normal way. Further, the Central Legislature met at New Delhi and held its Budget Session in the ordinary course between the 31st December, 1941, and the 3rd April, 1942.

63. The argument on behalf of the respondents on this part of the case, therefore, was that the Governor-General, anticipating that an emergency of the kind set out in sub-section (3) of the first section of the, Ordinance might arise in some part of British India, made and published the Ordinance in order to arm Provincial Governments with drastic powers to deal with the emergency when it should arise. This, it was contended, might have been an act of wisdom and foresight on the part of the Governor-General, but was not justified by the language of s. 72 which requires that an emergency must exist at the time when an Ordinance is made and promulgated, as it is the existence of an emergency alone which invests the Governor-General with power to make and promulgate Ordinances.

64. It was further contended that the Governor-General, by the total surrender of the power to bring the Ordinance into force into the hands of Provincial Governments, abdicated a function of which he alone had been made the sole repository by Parliament. It was urged that under s. 72 it was the duty and responsibility of the Governor-General and the Governor-General alone to secure the peace and good government of the country by means of Ordinances, if an emergency should so require. Sub-section (3) of the first section of the Ordinance leaves the enforcement of the Ordinance in the hands of Provincial Governments alone and makes no provision for the contingency that an emergency may arise in certain parts of British India which, in the opinion of the Governor-General, might necessitate action under the Ordinance and yet the Ordinance may not be brought into force in those parts by the Provincial Governments concerned.

65. We were further invited to look at the matter from another angle. The Preamble declares that an emergency exists necessitating the Ordinance. Section 1 (3) leaves the enforcement of the Ordinance to Provincial Governments on their being satisfied of the existence of an emergency. If no Provincial Government was at any time satisfied that the emergency defined in the sub-section existed in their respective areas, the Ordinance could not be put into force in any part of British India, notwithstanding the declaration contained in the Preamble that the Governor-General was satisfied of the existence of the emergency. This would also illustrate the point that the real decision with regard to the existence or otherwise of the emergency had been left in hands other than those of the Governor-General, and it was argued that this was not contemplated or permitted by s. 72.

66. An argument was also sought to be built upon the meaning of the word “promulgate” in the opening part of s. 72. It was argued on the authority of the Oxford Dictionary that promulgation with reference to a law or Ordinance means “publication by putting into effect” and it was urged that as in this case the Governor-General, though he made and published the Ordinance, did not by his own authority put it into effect anywhere, he did not himself “promulgate” the Ordinance, but had left it to be “promulgated” at future uncertain dates in different Provinces by the respective Governments thereof; and that consequently not having been “promulgated” by the Governor-General, the Ordinance had no force or validity.

67. In reply, it was pointed out on behalf of the Grown that the emergency justifying the enactment of the Ordinance was not identical with the emergency specified in s. 1 (3) as a condition precedent to its enforcement. It was argued that once the Governor-General had declared in the Preamble that an emergency had arisen which made it necessary to enact the Ordinance, the requirements of s. 72 were fulfilled and that it was not permissible to inquire further into the matter.

68. It was contended that once the Ordinance had been made and published in the Gazette of India, it was made and promulgated within the meaning of that expression in s. 72 and that enforcement of the Ordinance, or giving effect to it, was not a necessary ingredient of “promulgation”. In support of this interpretation, reliance was placed on Eamanatha Iyer's Law Lexicon and on the meaning given to the verb “promulgate” in the Oxford Dictionary.

69. The contentions put forward on behalf of the respondents on this part of the case found favour with Mr. Justice Sen in the Court below and they undoubtedly raise substantial and important questions. In view, however, of the conclusions at which we have arrived on the main grounds of attack against the validity of the Ordinance, we do not consider it necessary to pronounce an opinion upon these questions.

70. We would affirm the judgment of the High Court and dismiss the appeal.

71. Rowland, J.:—This is an appeal by the Crown against an order of the High Court of Judicature at Fort William in Bengal passed in its criminal re-visional jurisdiction, setting aside the convictions of, and sentences passed on, certain persons by a Magistrate acting in the capacity of a Special Magistrate under the Special Criminal Courts Ordinance, 1942 (Ordinance II of 1942), and directing that those persons be released, but that they be rearrested and dealt with in accordance with the ordinary process of law.

72. The Ordinance had in s. 26 enacted that save as provided in this Ordinance no Court shall have any jurisdiction of any kind in respect of proceedings under this Ordinance, thus excluding the revisional jurisdiction of the High Court.

73. But the High Court held that the Ordinance was ultra vires of the powers conferred on the Governor-General by the Government of India Act, 1935, sometimes referred to as the Constitution Act.

74. The learned Judges gave a certificate under s. 205 that the case involves a substantial question of law as to the interpretation of the Constitution Act; hence this appeal.

75. The question is whether Ordinance II of 1942, the Special Criminal Courts Ordinance, is ultra vires. That being the question on which the decision of this appeal must turn, selection of the line of approach to its determination may be assisted by one or two examples of the method consistently followed by the Judicial Committee of the Privy Council in construing statutes.

76. In Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh it was said, “We are not testing the question by general principles but by the expressions of the Code which relate to appeals. Their Lordships turn to the Code to see what it says”.

77. In Krishna Ayyangar v. Nallaperumal Pillai it was said, “The construction of the explanation must depend on its terms and no theory of its purpose can be entertained unless it is to be inferred from the language used”.

78. In The Queen v. Eduljee Byramjee it was said, “If such be the undoubted effect of the charter we must give effect to its provisions however injurious we may conceive the consequences to be”.

79. In Nagendra Nath Bey v. Suresh Chandra Dey it was said, “In construing such provision (limitation) equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide”.

80. In Bamanandi Euer v. Kalawati Kuer it was said, “It has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to aspertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law on which it may be founded”.

81. In The Australian Alliance Assurance Company v. The Attorney-General of Queensland and The Australian Alliance Assurance Gompany v. George Arthur Carter it was said, “Their Lordships are not concerned with the policy of the Act nor can they find in the novelty of the provision or in the language of other parts of the Act sufficient ground for disregarding the plain words of the enactment”.

82. In Pakala Narayanaswami v. King Emperor it was said, “But in truth when the meaning of words is plain, it is not the duty of Courts to busy themselves with supposed intentions”.

83. It may safely be said, without citing authority, that ordinarily the Courts construing the language of a Statute will assign to it that meaning which, consistently with the language used, is favourable to the liberty of the subject. The function of Judges is to give words their natural meaning, not perhaps, in war time, leaning towards liberty but remembering, that in a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the Statute.

84. In The Queen v. Burah it was said, “The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it) it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions”.

85. The terms by which affirmatively the legislative powers were created, are in s. 99 (1), of the Constitution Act and in s. 72 of the Ninth Schedule. Section 99 is not cited by the learned Judges. Its operative portion is in the following words:—

“Subject to the provisions of this Act, the Federal Legislature may make laws for the whole of British India or any part thereof”.

86. Section 72 in the Ninth Schedule runs thus:—

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

87. The restrictive or supposedly restrictive provisions to which reference was made are in several places. These may first be dealt with seriatim, and then the question of the extent of the affirmative provisions just previously cited.

88. Section 100 (3) removes from the jurisdiction of the Federal Legislature the making of laws for a Province with respect to matters in the Provincial Legislative list. But by reason of a Proclamation of Emergency that bar is removed by s. 102 (1). It is settled by the decision of this Court in Keshav Talpade v. Ming Emperor (Federal Court Case V of 1943) that the Central Legislature has power at present to make laws with respect to any matter in any of the three lists. But in the present case it was argued in the High Court that this power is given to the legislature and not to the Governor-General,Derbyshire G.J. deals with the matter thus: “The position, therefore, is that when a proclamation of a grave emergency has been made by the Governor-General, as indeed it was when war broke out in September 1939, the Federal Legislature has power to make laws with regard to the constitution and jurisdiction of courts in provinces; that the same emergency enabled the Governor-General under s. 72 of the Government of India Act, 1915, to pass an Ordinance dealing with the same matters which Ordinance ‘shall have the like force of law as an Act passed by the Indian Legislature’, and that s. 311 (6) provides that the Governor-General's Ordinance shall be construed as the same as an Act of the Federal or Provincial Legislature. There is, therefore, no substance in the second contention of the applicants”.

89. His colleagues agreed; and this point has not been pressed in appeal. It is obvious the words of the Statute support the conclusion of the learned Judges.

90. I shall next consider s. 223 which enacts that the jurisdiction of any existing High Court shall be the same as immediately before the commencement of Part III of the Act. But that is subject to the provisions of any Act of the appropriate legislature. Under s. 223 the legislature can pass an enactment taking away the jurisdiction of a High Court. The contrary does not seem to have been argued. But it was said the Governor-General is not the appropriate legislature and had no such power.

91. Derbyshire, C.J. said: “That contention is answered, it seems to me, by s. 311 (6) of the Government of India Act, 1935, which says:—

‘Any reference in this Act to Federal Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an Ordinance made by the Governor-General or a Governor-General's Act or, as the case may be, to an Ordinance made by a Governor or a Governor's Act’.

92. His colleagues agreed, relying on s. 311 (6) of the Act, clause 44 of the Letters Patent and s. 38 of the Interpretation Act, 1889 (52 & 53 Vict. c. 63).

93. The respondents, in their right to support the decision of the High Court on any ground decided against them, contend that this finding is erroneous: it should have been held that the Ordinance was not validly enacted under s. 223. We are referred to the language in s. 223 which makes the Letters Patent amenable to the legislative interference of “the appropriate legislature” and s. 72 which empowers the Governor-General to make Ordinances. It is said, he may have power to make Ordinances but he is not the appropriate legislature. The appropriate legislature is in some cases the Federal Legislature, Schedule 7, List I, item 53; in some cases the Provincial Legislature, List II, item 2; and in some cases either of these, List III, item 15. The Governor-General making an Ordinance is not either of these.

94. The distinction is unsound. By the Letters Patent clause 44, the Letters Patent are expressly made subject to the legislative powers of the Governor-General: and it would be repugnant to s. 72 to hold that an Ordinance made by the Governor-General in case of emergency was in any way less effective than an Act of the Federal Legislature. Undoubtedly the Governor-General has power to legislate by Ordinance in case of emergency in respect of the powers and jurisdiction of the High Courts. But the attack on the Ordinance was pressed on another ground.

95. It was said, assuming the Governor-General has power to legislate in that manner, this is not what has been done. He has left it to others not only to bring the Ordinance into force but to constitute Courts not amenable to the jurisdiction of the High Courts; and to empower others to direct by general or special order that persons and offences be tried in those Courts and not in ordinary Courts under superintendence of a High Court so that the jurisdiction of the High Court is ousted. To do these things is to exercise a legislative power; and even if the Governor-General himself has this power, he cannot commit its exercise to any other authority.

96.An almost identical argument was advanced with reference to s. 292; and as what I shall have to say on that will govern the decision on the point just now stated, I will postpone its consideration for the present.

97. Then there is a passage in the Instrument of Instructions to the Governor-General whereby he is enjoined to reserve for the signification of His Majesty's pleasure any Bill which would so derogate from the powers of the High Courts as to endanger the position which these Courts are by the Constitution Act designed to fill; such a Bill is not to be assented to by the Governor-General in the ordinary way.

98. We are referred to this as showing the concern and solicitude felt by Parliament for preserving and maintaining the position of the High Courts: we are invited to question the propriety of making such an Ordinance as this: of so completely ousting the jurisdiction of the High Courts in all cases tried by the Special Courts: of giving an unlimited power to bring any case whatever into the Special Courts; and of permitting this power to be delegated to any servant of the Crown without restriction however lowly in rank and however lacking in experience.

99. But as Derbyshire C.J. has pointed out, s. 13 (2) of the Constitution Act provides that the validity of anything done by the Governor-General shall not be called in question on the ground that it was done otherwise than in accordance with the Instrument of Instructions.

100. The correctness of the learned Chief Justice's observation is beyond question. That being so, it will be useless for this Court to express (however strongly we may feel) sentiments and views which the law does not empower us to put into effect: and so, I think as to this there is no more to be said.

101. At the hearing before us a further contention was advanced for the respondents. Jurisdiction it was said is given to the Federal Court by s. 205 of the Constitution Act; and it is not competent to any Indian Legislature to make a law altering or affecting the operation of that section.

102.Power to legislate as to Courts is conferred by s. 100 read with the Seventh Schedule as follows:—

103. By List I, item 53, “jurisdiction and powers of all Courts except the Federal Court” to the Central Legislature, in respect of matters indicated. By List II, item 2, “jurisdiction and powers of all Courts except the Federal Court”, to the Provincial Legislature, in respect of certain other matters. By List III, item 15, “jurisdiction and powers of all Courts, except the Federal Court”, to both Central and Provincial Legislatures, with respect to other matters.

104. It is clear that no Indian Legislature is competent to make a law with respect to the jurisdiction and powers of the Federal Court (subject to s. 206 or any other specific enabling section). But in s. 26 of the Ordinance the Governor-General had enacted:—

“Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under s. 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.”

105. The section is wide enough to bar an appeal to the Federal Court; therefore it is argued, this is legislation regarding the jurisdiction and powers of the Federal Court. But let us see what is that jurisdiction and what are those powers. The jurisdiction is (i) to entertain appeals from a High Court and from no other Court (ii) to entertain appeals in cases where the High Court gives the certificate under s. 205 (1), and in no other cases.

106. Nothing is said in the Ordinance as to the juris-diction of this Court to entertain, hear and decide such appeals; for in no case tried under the Ordinance has the High Court jurisdiction to pass any order which might become appealable to this Court.

107.But it is said, by shutting out the appellate jurisdiction of the High Court, the Ordinance may operate to prevent a case coming to this Court which would Otherwise have been the subject both of an appeal to the High Court and of an appeal to this Court. Indirectly, this may result in fewer cases coming to this Court but the Act gives a jurisdiction limited to a certain class of cases, and the Ordinance does not touch the jurisdiction of this Court in respect of cases falling within that class.

108. Our jurisdiction depends on the High Court having passed an order and given a certificate; when those conditions are fulfilled this Court entertains an appeal whether or no the High Court had jurisdiction to make the order appealed against.

109. The present case is an instance. No one has invoked s. 26 as a bar to our hearing this appeal.

110. This argument for the respondent though ingenious cannot therefore be accepted. The Ordinance is not a law respecting the jurisdiction of the Federal Court or respecting its powers.

111. Then there was an objection, of which the classification may be doubtful, whether it is a matter of looking to the affirmative words by which the legislative powers were created, or to words by which negatively they are restricted.

112. The reference is to s. 292 of the Act which enacts that subject to the other provisions of this Act all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority.

113. The substance of the argument is that the Criminal Procedure Code being part of the law in force, it is open to the Legislature to repeal or amend it but not to any other authority; similarly the Letters Patent of High Courts are part of the law of the land. By clause 44 of the Letters Patent, they are subject to the legislative powers of the appropriate legislatures. They too are not liable to be altered or amended by any other authority.

114. But, it is said, when an order is made for the trial of a case or offence by a Special Court, the effect is to repeal in a large measure the provisions of the Criminal Procedure Code as well as to take away powers given to the High Court by the Letters Patent. It can be so done by the Legislature; it can be so done by the Governor-General by Ordinance, but no subordinate authority can be empowered to do these things; to do them is to legislate, and the power to legislate must be exercised by the legislature and cannot be delegated. The same contention was noticed earlier in dealing with an argument based on s. 223. I said I would deal with it later.

115.The above contentions found favour with the High Court and I have now to examine them.

116. It is to be seen first whether by the Ordinance together with the action taken under it there has been effected a repeal or alteration of the Criminal Procedure Code and of the Letters Patent of the High Court. So far as the Criminal Procedure Code is concerned we were first referred by Mr. Banerji for the appellants to s. 6, which enacts that there shall be five classes of criminal courts “besides the High Courts and the courts constituted under any law other than this Code for the time being in force”; he suggested that the Code only purported to lay down a procedure for the five classes named in s. 6, and in part for the High Court, and did not profess to lay down any procedure for other courts, which may be constituted under any law other than the Code. If s. 6 stood alone the argument would have a certain attractiveness, but we must see also s. 5 which in cl. (1) enacts: “all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained”. Offences under other laws are dealt with by s. 5, cl. (2), in a similar manner, subject to any other procedural enactment for the time being in force. It seems clear that before any offence under the Indian Penal Code can be investigated, enquired into and tried otherwise than according to the Code, s. 5, cl. (1), has to be got rid of. Mr. Banerji then referred us to s. 1, ol. (2), which enacts that “in the absence of any specific provision to the contrary nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force”. This subjection, it is said, saves other enactments prescribing special procedure, or conferring special jurisdiction or power, and permits them to have their effect without conflicting with the provisions of this Code. The matter is not wholly free from difficulty, but I do not think that new courts unknown to the Code, following a new procedure foreign to the Code, can be set up without conflict with s. 5. Then as to the High Courts it has been apparently assumed throughout that a law which completely ousts the jurisdiction of a High Court in respect of many cases, is a law altering the Letters Patent. The contrary was not argued, but the matter to my mind is not so clear as to be beyond doubt. In the period between the passing of the Government of India Act in 1915 and of the Government of India Act, 1935, there was a provision in s. 107 of the Government of India Act as to the powers of superintendence of a High Court over all courts subject to its appellate jurisdiction, and elsewhere it was laid down that this section was one which the Indian Legislature have not power to modify. What superintendence means was discussed at length in Parmessar Singh v. Kailaspati. Two cases arose regarding tribunals specially set up, some of whose decisions might be, under certain circumstances, the subject-matter of appeal to the High Court. In other respects revisional power and apparently superintendence of the High Court were excluded by the enactment. It was held that the power of superintendence which includes a revisional jurisdiction could not be taken away from the High Court in respect of any court from which an appeal can lie to the High Court. Those cases are in B.H. Phansalkar v. Emperor and Manmatha Nath Biswas v. Emperor. On the other hand if the Legislature creates a court not in any way subject to the appellate jurisdiction of a High Court then s. 107 does not apply to confer on a High Court a power of superintendence in respect of such special court. It was so held in The Queen v. Burah, where the courts set up were in an area over which the High Court had no territorial jurisdiction at all; and it was so held in Sheonandan v. Emperor  and in Parameshwar Ahit v. Emperor in the matter of special tribunals set up within the area over which the High Court's general jurisdiction extended. In what follows, while proceeding on the assumption that a law ousting the jurisdiction of a High Court is a law altering the Letters Patent, I wish to guard myself against being understood as holding it to be applicable to the creation of courts not subject to the jurisdiction of the High Courts in any respect. As I have held that the Criminal Procedure Code or parts of it are substantially repealed or altered by setting up new courts with a different procedure for trying offences both under the Penal Code and other laws and as I agree that this can only be done by legislation, the question whether the same thing applies to the High Court or not has become academic.

117.Then we have to see whether these changes in the law have been made by the legislature, that is by the Governor-General by his act in making the Ordinance, or by the act of the Local Government or its officers in passing orders to give effect to it.

118. Derbyshire, C.J. pointed out that grave inroads were made on the rights enjoyed by the subject under the ordinary law. A Magistrate of the second class under the Code can impose a sentence up to six months' imprisonment only; the same Magistrate sitting as a Summary Court can give up to two years. There is no provision that the Magistrate, to be vested with the powers of a Summary Court must have had any particular length of judicial experience. Under the Code, on conviction there would be an appeal from a conviction in all cases; under the Ordinance, only if the sentence exceeds three months' imprisonment or Rs. 200 fine. Under the Code there is a further right to move the High Court in revision. By the Ordinance this right is barred.

119. A Magistrate of the first class under the Code can impose a sentence limited to two years' imprisonment; the same Magistrate sitting as a Special Court can give up to seven years. Under the Code there is an appeal unless the sentence is within the limit of Rs. 50 fine; under the Ordinance only if the sentence exceeds two years' imprisonment. As before there is no right to move any Court in revision. To be qualified to exercise these enlarged powers a Magistrate must have exercised first class powers for two years.

120. In the Court of Sessions, powers are exercised by Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges under the Code. An Assistant Sessions Judge can impose sentence up to seven years; a Sessions or Additional Sessions Judge any sentence authorised by law, but a sentence of death is subject to confirmation by the High Court. Under the Code there is an appeal if the sentence exceeds one month's imprisonment or Rs. 50 fine. By the Ordinance there is no appeal whatever and no one has any revisional jurisdiction. There is no reference to the High Court for confirmation of the death penalty, and no superior court can be moved in revision. Where however a sentence of seven years or upwards has been imposed, a reference is made to a certain person who must be a High Court Judge; and his order is final. A similar submission can be made by the Special Judge if he finds the case involves points of special difficulty. (It is to be noted that a Special Magistrate dealing with a case of special difficulty is not able to make any such submission to anyone: nor is a Summary Court empowered to do any such thing.) To be qualified to exercise the enlarged powers of a Special Judge, a person must have exercised for two years the powers of a Sessions Judge or Assistant Sessions Judge.

121.But the defect of jurisdiction alleged is not that the legislature could not constitute new courts and entrust to them new powers as wide as these; or that it could not change the procedure of inquiry and trial as has been done by permitting a memorandum only of the substance of the evidence to be recorded instead of the whole of the evidence; in permitting a special Judge to take cognizance of offences without the accused being committed to his court for trial, whereas under the Code a court of session shall not take cognizance of any offence as a court of original jurisdiction unless the accused has been committed by a magistrate duly empowered; and in abolishing completely the right of trial by jury or with assessors. It is not even said that the Legislature was incompetent to enact s. 26 barring appeals save as provided in the Ordinance and barring the exercise by any court of revisional jurisdiction or jurisdiction to transfer a case or jurisdiction to make an order under s. 491 of the Code, or jurisdiction of any kind. It is said that the Legislature could do these things, drastic as they are. But they could not be done by any other or subordinate authority. The power to do them is a power to legislate. It is not the Legislature (that is, the Governor-General) that has brought these changes into force. They become effective only when an order is passed under s. 5, s. 10, or s. 16 of the Ordinance. These are the sections which empower and direct Special Judges, Special Magistrates and Summary Courts respectively to try offences. The Ordinance does not prescribe the offences which each class of court is to try. It leaves that to be determined by general or special orders in writing to be made in the case of Special Judges by the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf; in the, case of Special Magistrates by the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf; in the case of Summary Courts the District Magistrate or a servant of the Crown authorized in this behalf by the District Magistrate.

122. This the learned Judges say amounts to making over to the Provincial Government and other officers referred to the power of legislation which cannot be delegated.

123. The learned Judges in the High Court approached the matter not as I understand the Privy Council to have enjoined by reviewing the positive and negative expressions in the Constitution Act but by referring in the first instance to the magnitude and gravity of the change in the law. The learned Chief Justice says: “The man's rights as regards appeal and revision are not pre-determined by law but are left to the discretion or order of the District Magistrate and in some cases practically to the discretion of the Police There are two sets of courts, the ordinary criminal courts and the special criminal courts, working side by side and no man knows which court he may be tried in. That is left to the District Magistrate nominally to decide; in fact it might be decided by the Police The subject who commits a crime is not ipso facto or by the Ordinance itself brought within the jurisdiction of the special courts In effect it is the Provincial Government or the District Magistrate acting not in a judicial capacity but in an administrative capacity that deprives the subject of his right under the Code and repeals its valued provisions as far as he is concerned. That in my view is repealing, the Code of Criminal Procedure in part — in that instance legislation ad hoc for the man's case”. The learned Chief Justice dwells on the grave consequences, with which he seems to be much impressed. I may say here that I have had the advantage of seeing in advance the judgment that his Lordship the Chief Justice has just delivered; and had it been within our province to enter on questions of policy I would associate myself with much if not all of what he has said, as to the value and importance, when delegating a discretionary power, of proper safeguards and of sufficiently directing the entrusted authority (either by provision in the Act or by rules) as to the principles by which he ought to be guided in the use of his discretion; as to the abuses that may result from absence of such provision; and as to the existence of valuable precedents in English practice, a proper attention to which, he thinks, would have enabled an Ordinance very much more satisfactory than this one to be framed. But, it is not for us to concern ourselves with policy where the law is clear but to give effect to its provisions however injurious we may conceive the consequences to be, and I shall confine myself to considering the law without further reference to its consequences. The machinery for bringing accused persons “before the three classes of Special Courts is in ss. 5, 10 and 16: as these are similar in their terms it will suffice to examine one of them — s. 5 which refers to jurisdiction of Special Judges. As originally enacted, the wording of it was this:—

“A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct”.

124. The drafting appears somewhat inartistic; one may have to read it more than once to grasp the meaning; but its substance is clear, though obscured by the use of the expression “such cases as”. There are really two provisions, (a) “The Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct” a Special Judge to try an offence or class of offences, or a case or class of oases: and then (b) “The Special Judge shall try” it or them.

125. The direction “the Special Judge shall try” is a positive enactment of the legislature; but it becomes effective only when one condition is fulfilled: an order in writing is to be passed by the authority referred to.

126. In the present case a special order was passed by the District Magistrate who had been empowered in that behalf for sending the case to a Special Magistrate.

127.The main ground of the High Court's decision is that because the Code remains in full force and applicable to any given person until an order is passed for him to be tried by a Special Judge or Special Magistrate and, it is said, a different law becomes applicable to him immediately on the passing of such an order, therefore it is that order which puts the Ordinance into effective action and it is that order and not the Ordinance itself which effects the change in the law, including implied repeal of part of the Code. Before considering whether this proposition is in conflict with the decision in Burah's case I may turn aside to point out that the doctrine advanced may carry an unexpected consequence. If indeed to pass that order under s. 5 is to legislate and if only the Legislature can do it then to validate such a trial as the trial of the respondents the Governor-General ought to have passed a special Ordinance enacting that Benoari Lall Sarma and others be tried by the Special Magistrate for the offences with which they are charged. This is not the usual legislative practice in modern times where the Legislature normally lays down a principle and offers a general instruction which it is the duty of the executive authorities to carry out by passing the necessary orders warranted by the statute and in accordance with any instruction (e.g., by statutory rules) that may be given. There are no doubt precedents from medieval times of Acts of Parliament which instead of laying down a general principle have embodied a specific and definite order as to the action to be taken in a particular case, as for instance in Statute 22 Hen. VIII, c. 9, which dealt with the case of Richard Rose. This person was cook to the Bishop of Bochester and had poisoned his master and the statute enacts “that the said Bichard Bose be put to death by boiling in oil without any advantage of his clergy”. It is rather late in the day to maintain that a statute ought to be couched in this specific and individual form, the Legislature being unable to delegate its power to pass the necessary order.

128. Indeed the learned Judges themselves of the High Court have hesitated to lay down so sweeping an assertion as that any executive order made in pursuance of a statute amounts to a legislative act if its result may bring into operation a change in the law. Khundkar J. says: “Indeed it is not strictly a power to legislate which has been delegated but a power to do by individual direction in particular cases what should properly have been brought about by legislation or at least by rule”. The learned Judge is almost admitting that the power to do what was done here, that is to say to bring about the exercise of jurisdiction by a Special Judge and the ousting of the jurisdiction of the ordinary courts, could be delegated if the form in which it was delegated was that of an authority to make rules. To that I would say that if there is a power to delegate authority it is not for the courts to dictate the form and manner in which that power is to be exercised.

129. The learned Judge's reason for doubting the existence of a power to delegate authority to carry out in any manner the purposes of the Act or to make the Act effective appears to have been that he relied on the distinction between supreme and subordinate legislation. He quotes a passage from Salmond on Jurisprudence drawing a distinction between supreme and subordinate legislation and asserting that the legislation of the Imperial Parliament is supreme but all other forms of legislative activity recognized by the law of England are subordinate; they are to be regarded as having their origin in a delegation of the power of Parliament to inferior authorities exercising delegated functions and remaining therein subject to the control of the sovereign Legislature. The learned Judge however did not unreservedly accept the argument addressed to him because to do so might affect a rule-making power conferred upon an executive authority. He left the matter in the air in the same way as it had been done by Ainslie J. in Empress v. Burah . The passage in Ainslie J.'s judgment (at p. 114) runs thus:— “There is another class of Acts in which there is apparently a clear delegation of legislative power. I refer to Acts which contain a provision giving the power to make rules or bye-laws and to impose taxes or fix fees and charges. But these are clearly distinguishable from such an Act as Act XXII of 1869, so far as we are concerned with it now, which is only so far as it gives power to the Lieutenant Governor to repeal s. 9 of 24 and 25 Vict., c. 104.” In each case the point was left undecided in the High Court. In Burah's case the reasoning of Ainslie J. along with that of the other earned Judges forming the majority in the High Court was severely commented on by the Privy Council (5 Indian Appeals 178) and I think that those comments apply equally to the reasoning of Khundkar J. as they did to the reasoning of Ainslie J. One more reason given for regarding the delegation of authority under the Ordinance as bad appears to be that the learned Judges consider it improper to give to an (undefined) Crown servant power to transfer cases with no direction as to what principle he should follow or what evil he was to try to avert. Again, using the words of Khundkar J., “the power given is a power to effectuate jurisdiction of special criminal Courts by making orders in individual cases or groups of cases and the exercise of that power is entirely unconfined by any rule or condition”.

130. The appellant contends before us that this case is a case of conditional legislation within the authority of The Queen v. Burah, a case in which there had been a delegation of power by the Legislature to the Lieutenant Governor which a Full Bench of the High Court had held in Empress v. Burah, to be unconstitutional. The delegation of power had been very wide. It was left to the discretion of the Lieutenant Governor of Bengal, first to direct when the Act should come into operation in the Garro Hills for the administration of which area the preamble showed that the Act had been originally designed. Further it was left to the discretion of the Lieutenant Governor to extend the provisions of the Act to territories in the Jaintia Hills, Naga Hills and Khasi Hills. As for the administration of civil and criminal justice under s. 5 it was vested in such officers as the Lieutenant Governor should for the purpose of tribunals of first instance or of reference and appeal from time to time appoint, such officers to be subject to the direction and control of the Lieutenant Governor and to be guided by such instructions as he should from time to time issue. The High Court is not expressly named, but s. 4 removes the territory in question from the jurisdiction of the courts of civil and criminal judicature as well as from the law prescribed for the said courts and offices by regulations and Acts previously in force passed by a Legislature in British India. The notification bringing the Act into force in the Khasi and Jaintia Hills declares that the administration of criminal justice is vested in the Commissioner of Assam subject to the general direction and control of the Lieutenant Governor. The notification confers on the Commissioner the powers of a High Court in civil and criminal cases. No sentence of death is to be carried out without the sanction of the Lieutenant Governor and it is declared competent to the Lieutenant Governor to call for the record of any criminal case and pass thereon such orders as to him may seem fit. Existing officers were to continue to exercise the same powers as before and in respect of cases triable in their courts to be guided by the spirit of the laws prevailing in British India and heretofore in force in the district. This the High Court said was legislation by executive order by the Lieutenant Governor and not by the Legislature. And that is exactly what the High Court say now. But the argument was repelled by the Privy Council, observing that the doctrine of the majority of the Court was erroneous and rested on a mistaken view of the powers of the Indian Legislature and indeed of the nature and principles of legislation. “The Indian Legislature within the limits which circumscribe its powers is not in any sense an agent or delegate of the Imperial Parliament and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself.” It was, their Lordships thought, a fallacy to speak of the powers conferred on, and exercised by, the Lieutenant Governor as if when they were exercised the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. “Their whole operation is directly and immediately under and by virtue of the Act itself.” Their Lordships added that if they adopted the view of the majority of the High Court they would be casting doubts on the validity of a long course of legislation. This pronouncement has always been treated as the statement of a principle of wide application not restricted to the particular facts with which their Lordships were dealing. But indeed even if it were not so it seems to me that the delegation of power to the Lieutenant Governor was at least as wide as any delegation of power made in the present Ordinance. The Lieutenant Governor is to constitute courts as to the nature, powers and description of which the Act gives him a blank cheque. Here the nature, powers, original and appellate jurisdiction of the courts are specifically laid down in the Ordinance itself. Only the final order that a particular case or class of cases is to be tried by a Special Court is left to discretion. To hold that where two sets of courts exist side by side power cannot be delegated to pass an order directing that a case shall come before the Special Court and not before the courts under the Code would be to throw doubt on a long course of legislation which can be instanced by referring to the following Ordinances:—

1. The Foreigners (Trial by Court-martial) Ordinance (Ordinance III of 1916), s. 3.

2. Martial Law (Further Extension) Ordinance, 1919 (Ordinance IV of 1919), s. 2.

3. Martial Law Ordinance, 1921 (Ordinance II of 1921), ss. 8 and 9.

4. Martial Law (Supplementary) Ordinance, 1921 (Ordinance III of 1921), s. 5.

5. Martial Law (Military Courts) Ordinance, 1921 (Ordinance IV of 1921), s. 4.

6. Martial Law (Special Magistrates) Ordinance, 1921 (Ordinance V of 1921), s. 4.

7. Bengal Criminal Law Amendment Ordinance, 1924 (Ordinance I of 1924), s. 3.

8. Martial Law Ordinance, 1930 (Ordinance VIII of 1930), ss. 18, 24, 27, 33 and 37.

9. Burma Criminal Law Amendment Ordinance, 1931 (Ordinance I of 1931), s. 3.

10. Burma Bebellion (Trials) Ordinance, 1931, (Ordinance III of 1931), ss. 4 and 8.

11. North West. Frontier Proyince Emergency Powers Ordinance, 1931 (Ordinance XIII of 1931), ss. 31, 36 and 42.

12. Emergency Powers Ordinance, 1932 (Ordinance II of 1932), ss. 32, 37 and 42.

13. Special Powers Ordinance, 1932 (Ordinance X of 1932), ss. 32, 37 and 43.

131. There are similar provisions in the Criminal Procedure Code, 1898, s. 549, in the Indian Army Act, 1911, s. 69, and in the Indian Air Force Act, 1932, ss. 80 and 81. The provision in the Criminal Procedure Code after empowering the Central Government to make rules says that when any person is brought before a magistrate and charged with an offence for which he is liable to be tried either by a court to which this Act applies or by a court martial, such magistrate shall have regard to such rules and shall in proper cases deliver him together with a statement of the offence with which he is accused to the Commanding Officer for the purpose of being tried by court martial. The provision in the Army Act is that when a criminal court and a court martial have each jurisdiction in respect of an offence it shall be in the discretion of the prescribed military authority to decide before which court the proceedings shall be instituted and if that authority decides that they shall be instituted before a court martial to direct that the accused person shall be detained in military custody. In the Indian Air Force Act when a criminal court and a court martial have each jurisdiction in respect of a civil (i.e., non-military) offence it shall be in the discretion of the prescribed Air Force authority to decide before which court the proceedings shall be instituted and, if that authority decides that they shall be instituted before a court martial, to direct that the accused person shall be detained in Air Force custody. Under s. 81 a question may arise whether an offender is to be proceeded against before an ordinary criminal court or a court martial and a reference can be made in such a case for the determination of the Central Government, whose order upon such reference shall be final. All these provisions are instances of delegating to an executive authority the power to decide by which court and by which of two entirely different procedures an accused person is to be tried.

132. If the learned Judges of the High Court are right, in every such instance that executive authority is legislating ad hoc.

133. Cases in which the principle of The Queen v. Burah has been applied and clearly held not to be a pronouncement restricted to the facts of a particular case include Hodge v. The Queen, where the Judicial Committee developed the same doctrine in the following passage:—

“Assuming that the local legislature had power to legislate to the full extent of the resolutions passed by the License Commissioners, and to have enforced the observance of their enactments by penalties and imprisonment with or without hard labour, it was further contended that the Imperial Parliament had conferred no authority on the local legislature to delegate those powers to the License Commissioners, or any other persons. In other words, that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body, and by that body alone. The maxim delegatus non potest delegare was relied on.

“It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in s. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by s. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.

“It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law, to decide.”

134. The precise point decided was that the local Legislature had power to entrust to a Board of Commissioners authority to enact regulations creating offences and annexing penalties thereto.

135. Again in Powell v. Apollo Candle Company Limited, it was held that duties levied by an Order in Council issued under a delegated authority were really levied by authority of the Legislature and not of the executive, notwithstanding that the Governor (whom the statute empowered to direct that a duty be levied on an article of merchandise falling within a description given in the Act) in doing so acted on a report of the Collector. Their Lordships said: “These two cases (of Burah and Hodge) have put an end to a doctrine which appears at one time to have had some currency, that a Colonial Legislature is a delegate of the “Imperial Legislature. It is a Legislature restricted in the area of its powers, but within thai area unrestricted, and not acting as an agent or a delegate”. Their Lordships further said:—

“It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring s. 133 of the Customs Eegulation Act of 1879 to be beyond the power of the Legislature.”

136. No case has been cited to us in which their Lordships being asked to apply the same principle have refused to apply it and the latest pronouncement of the Judicial Committee (which I have to thank His Lordship the Chief Justice for bringing to my notice) is that in Shannon v. Lower Mainland Dairy Products Board. The question was of the validity of the delegation by the Legislature of British Columbia to the Lieutenant Governor of a power to set up a Central Marketing Board, to establish schemes for the control and regulation or the marketing of any natural products, to constitute marketing boards to administer such schemes and to vest in those boards any powers considered necessary or advisable to exercise those functions. So far as one can gather from the report, the Act placed no limit on the powers which might be so exercised except that they should be limited to promoting the purposes of the Act. I have stated such particulars as are to be gathered from the report of the Privy Council decision as I have not had the advantage of seeing a copy of the report of the decision appealed from which is in (1937) 52 B.C.E. 179. But it appears that the argument in appeal was this that in the present case there was practically a surrender by the Provincial Legislature of its legislative responsi-^ bility to another body. “Surely the limit in that type of delegation has been reached in this case where the delegation is to an executive body”. But Lord Atkin in delivering the Judgment of the Judicial Committee scouted the objection saying:—

“The third objection is that it is not within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lieutenant-Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys when dealing with matters falling within the classes of subjects in relation to which the constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act. Martin C.J. appears to have disposed of this objection-very satisfactorily in his judgment on the reference, and their Lordships find no occasion to add to what he there said”.

137. In the face of those weighty pronouncements, the correctness of which it is not for any of us to question, I am of opinion that in the words of Burah's case “a mistaken view” has been taken by the High Court “both of the powers of the Indian Legislature and indeed of the nature and principles of legislation”. All the orders passed have been passed, and all that has been done has been done, under the authority of the Ordinance and they are to be deemed to have been effected by and in virtue of the Ordinance. I will not endeavour to expand in my own words what has been so much more effectively said by so much higher judicial authority. Again borrowing language from Burah's case, the only way in which Courts of Justice can properly determine such questions is by looking to the terms of the instrument by which affirmatively the legislative powers were created and by which negatively they are restricted. I find the words in s. 99 of the Constitution Act bestow a power to make laws, unconditioned except by the words “subject to the provisions of this Act” and after examining all the restrictive provisions brought to our notice I have seen nothing in any of them that can be read so as to deny to the Indian Legislature the power to make such a law as this Ordinance. I am convinced that the present case cannot be excluded from the principle of those decisions and accordingly the contention of the appellant ought to succeed and this finding of the learned Judges of the High Court of Judicature at Fort William in Bengal ought to be set aside.

138. Finally, it has been contended that the Ordinance is ultra vires of s. 72 (Ninth Schedule) because the condition as to emergency is not satisfied.

139. It is enacted there that “The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof”.

140. The preamble to the Ordinance runs thus:—

“Whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts”.

141. In the face of that preamble the argument for the respondents at first sight does not appear hopeful, for it has been held by the Privy Council in Bhagat Singh's case that the only person to judge of the existence of an emergency is the Governor-General; if he has so judged it is not for a court of law to question it.

142. To circumvent this difficulty reference is made to s. 1 (3) of the Ordinance which as at first enacted ran thus:—

“It (the Ordinance) shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province.”

143. By this provision the operation of the Ordinance is postponed till a Local Government is satisfied, of the existence of an emergency evidently not in India generally but in the Province.

144. It is said, emergency demands immediate action: but the Governor-General is not taking immediate action. He postpones action for a future date. Therefore he has not judged that an emergency exists: he is providing for a future emergency. Moreover he has left it to the Provincial Government to judge of the existence of an emergency arising (in the future); that is, he has delegated to the Provincial Government a function which is personal to himself and cannot be delegated to anyone.

145. It may be conceded at once that this function cannot be so delegated. But can it be said that the Governor-General has not so judged

146. In the Calcutta High Court Derbyshire, C.J. and Khundkar, J. rejected the contention of the present respondents. Derbyshire C.J. said: “The argument raised by the applicants was that although under s. 72 of the Government of India Act the Governor-General was the judge of the emergency which gave him authority to make ordinances, he could not delegate that judgment to the Bengal Government so as to enable them to say when the ordinance should be brought into operation. Another argument was that there were two emergencies: (1) when the Ordinance was made and (2) when it was brought into operation in Bengal and that consequently the second emergency is not one contemplated by s. 72. In my view there is no substance in this contention. An emergency arose in September 1939 when war with Germany was declared. This was announced in the Gazette of India Extraordinary, dated September 3, 1939, as follows:— “In pursuance of sub-s. (1) of s. 102 of the Government of India Act, 1935, I, Victor Alexander John, Marquess of Linlithgow, Governor-General of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by war.” The same day war was proclaimed between His Majesty and Germany. That emergency continues: in December, 1941, it grew graver because Japan declared war on the British Empire and joined Germany and began to invade Burma. Anything might have happened sooner or later and steps had to be taken to deal with whatever might happen. The Governor-General, taking a conspectus of the situation with the assistance of his military advisers, was bound to envisage a possibility of an attack being made upon India and took such measures that he might deem proper in respect of that attack. The emergency at that time demanded action on his part and one of the steps he took was to make and promulgate this Ordinance by setting up Special Courts to deal with the situation that might arise later. That emergency did not cease; it continued and grew in intensity until the Japanese were very near the border of India and Burma. That stage of the emergency being reached — it was the same emergency but more acute — it became the duty of the Government of Bengal to consider whether it ought to act under the powers conferred upon it. The Government of Bengal then on April 3, 1942, brought into operation the Ordinance. This kind of conditional legislation is well known and recognised in the courts since the case of Emperor v. Burah”.

147. Khundkar J. in his judgment refers to this contention as “Branch A of the second argument”. He states it thus: “II. This Ordinance is in its entirety ultra vires of the Governor-General under s. 72 in the Ninth Schedule of the Act for the following reasons:—

148. A. Section 72 gives power to make an Ordinance only in cases of an existing emergency and not in the ease of a prospective or future emergency the existence of which is left to the Provincial Government to decide”. His answer to it is:—

“Branch A of the second argument is that although s. 72 does not contemplate a prospective or future emergency, the Ordinance was not to become operative as law until the Provincial Government, being satisfied of the existence of an emergency at some future time, by notification in the official Gazette declared it to be in force. Now it is well settled that the question of whether an emergency existed at the time when an Ordinance was made and promulgated is a matter of which the Governor-General is the sole judge [see Bhagat Singh v. King Emperor. Here the Governor-General had decided that question, as the preamble shows, and there can be little doubt that the “emergency” referred to in s. 1 (3) was, in the contemplation of the Governor-General, a future stage of the same emergency which made it necessary for him to make and promulgate the Ordinance. As stated by Niyogi J. in Sitao v. Crown: “Inasmuch as it was enacted to meet an emergency and such emergency was likely to become acute the materialization of that stage of emergency was indicated as the condition precedent for enforcing the Ordinance”. If one may look at the question objectively, it is, as pointed out by my Lord the Chief Justice, a matter of recent history that a situation of public peril arose in January 1942 when the Japanese army was approaching India, which grew more and more acute, until, in this Province, events made it incumbent upon the Provincial Government to have recourse to the measures for which the Ordinance provided. The use of the words “being satisfied of the existence of an emergency” in s. 1 (3) is in my opinion infelicitous, because what was meant was the happening of some event or events during the continuance of an emergency already in existence. That however is all that can be said by way of criticism. The preamble contains clear words showing that the Governor-General had decided that an emergency existed which necessitated the making of the Ordinance at the time when it was made. When these words are read with the provisions which follow the preamble the meaning is plain. The Governor-General is heard to be saying: “I do not-think there is such an emergency now as calls for the immediate application of special powers, but I do think that there is an emergency now, and that it calls for the creation of powers, recourse to which will be necessary, if and when this emergency gets worse”. The Governor-General did both think and say that there was an emergency which justified the making of this Ordinance. To suggest otherwise would be to suggest as was said by Beaumont C.J. in his judgment in Criminal Applications 431, 433 and 436 of 1942 of the Bombay High Court, that the Governor-General can never exercise any foresight in the protection of the State’”.

149. To me the above reasoning of both these learned Judges appears cogent; the view taken by them is moreover in accordance with the (hitherto I think uniform) current of authority in the other High Courts, witness the decisions following:—

150. Salig Bam v. Emperor from Allahabad; Emperor v. Shreekant Pandurang Ketkar from Bombay; Sheobaran Singh v. Empero from Patna; Sitao v. Emperor from Nagpur; Vishnu Pershad v. Emperor from Oudh, besides an earlier decision of the Calcutta High Court in Santosh Kumar v. Emperor. I would simply follow those decisions without reiterating the grounds on which they are based but that Sen J. has in the case under appeal taken a contrary view holding, not that there was no emergency but that the Governor-General had not judged that there was an emergency. It followed, he thought, that the rule in Bhagat Singh's case  did not apply, or rather, was to be applied in the contrary sense; and he concluded that the Governor-General had no jurisdiction to make an Ordinance. I must therefore examine the reasoning on which that conclusion is based. This part of the judgment occupying 20 pages in the brief, is too long to reproduce here in extenso: but I shall try, in summarising what appear to me to be its essential points, not to do the learned Judge injustice, or expose myself to the charge of parodying rather than depicting his line of thought.

151. First he accepts the contention that although the preamble states “an emergency has arisen which makes it necessary to provide for the setting up of special criminal courts”, the contents of the Ordinance themselves show that the Governor-General was not of opinion that an emergency existed. He cites from Bhagat Singh's case a passage containing the following dicta:— A suite of emergency connotes a stale of matters calling for drastic action which is to be judged by someone. That someone must be the Governor-General alone. Emergency demands immediate action.

152. The learned Judge reasons, an emergency exists if the Governor-General thinks that an emergency exists. The Governor-General has power to promulgate an Ordinance only if he thinks or judges that there is an emergency which necessitates the promulgation of the Ordinance. I may interrupt the summary by saying that here the learned Judge goes beyond s. 72. According to the section there must be an emergency: according to the Judge there must be “an emergency which necessitates the making of the particular Ordinance”. By analysis of the preamble the fallacy will appear. It could have been worded thus: “an emergency has arisen; and that emergency makes it necessary to provide for the setting up of special criminal courts.” Reading it so, there are two propositions and the incorrectness or supposed incorrectness of the second need make no difference to the truth of the former, which for the purpose of giving power to legislate, is enough.

153. The argument continues, even if an emergency exists and the Governor-General does not think there is an emergency he cannot promulgate an Ordinance. It is what the Governor-General thinks that matters. My comment is, the Statute does not say this. The condition precedent is, under s. 72, the emergency; the Governor-General's judgment of it is proof of the emergency, but does not take its place as the condition precedent.

154. Continuing the argument, the Court, it is said, must decide whether or not the Governor-General has in fact judged that there is an emergency. That is the sole test; whether or not there is an emergency is irrelevant. If I am right in my previous comments, this is not the test at all. But for following the argument, let it be assumed to be so. It is then said that the Court applying this test must act on its finding. If the Governor-General had said “I do not think there is an emergency, which necessitates the promulgation of this Ordinance; nevertheless I promulgate it”, the Ordinance would be ultra vires. If he said “I do not think there is an emergency now but there may be one later”, the Ordinance would be equally invalid. We must investigate the state of his mind: a question of fact capable of being determined like any other question of fact.

155. If that be indeed a question of fact, it is to be determined on evidence: and Mr. Banerji for the Crown reminded us of some significant dates of which he contended that we could take judicial cognizance, as matters of history.

Japan made war

….

7-12-1941

Essential Services (Maintenance) Ordinance XI of 1941, promulgated

….

20-12-1941

Bombing of Rangoon

….

23-12-1941

Second Bombing

….

25-12-1941

Special Criminal Courts Ordinance II of 1942, promulgated

….

2-1-1942

Penalties (Enhancement) Ordinance III of 1942, promulgated

….

2-1-1942

Motor Vehicles (Drivers) Ordinance V of 1942, promulgated

….

27-1-1942

National Service (Technical Personnel) Amendment Ordinance VI of 1942, promulgated

….

29-1-1942

156. The preamble to Ordinance XI of 1941 recites that an emergency has arisen which makes it necessary to make provision for the maintenance of certain essential services; and the Ordinance imposes penalties on those who being employed on services essential to securing the defence of India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies or services necessary to the life of the community, desert their employment. This was to stop the wholesale exodus already going on from Calcutta, which received an impetus when Rangoon was bombed. The preamble to Ordinance III of 1942 recites that an emergency has arisen which makes it necessary to enhance in certain circumstances the penalties provided by law for the punishment of certain offences; and the first of the operative sections (s. 3) enhances the punishment for theft in any premises which have been damaged by war operations or evacuated by reason of attack or apprehended attack by the enemy, or for looting of property left unprotected as a consequence of war operations. Other provisions deal with sabotage. The preamble to Ordinance V of 1942 recites that an emergency has arisen which makes it necessary to take powers to require persons capable of driving motor vehicles to place themselves and their services at the disposal of Government; and the enacting portion provides machinery to this end.

The Japanese entered Singapore

….

15-2-1942

The Japanese occupied Rangoon

….

15-3-1942

The Japanese occupied the Andaman Islands, a part of British India

….

23-3-194

157. A steady stream of refugees from Burma estimated at over a million was coming in to India from December 1941 to the time of the monsoon of 1942.

158. Sen, J. has said in his judgment that it is not open to us to take into account historical facts or any extraneous evidence either as to whether an emergency existed or whether the Governor-General had judged, an emergency to have arisen. But according to Lord Halsbury in Powell v. Kempton Park Racecourse Co. such topics as the history of the legislation and the facts which give rise to the enactment may usefully be employed to interpret the meaning of the statute, though they do not afford conclusive argument. In my view the Governor-General's mind is not a question for us to inquire into; but if we are at all to enter on such an investigation I do not see why historical facts should be excluded from its purview. Especially significant I think is the fact that Ordinance II and Ordinance III of 1942, the latter of which was to come into force at once, were made and promulgated on the same day. How can the Governor-General in one day both judge that an emergency exists and that it does not exist

159. But let us resume the argument, still assuming the reasoning to be so far correct. Only the statute, it is said, can be looked to; and the learned Judge refers to s. 1 (3) of the Ordinance, the terms of which are:—

“It shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded:

Provided that any trial or proceeding which was pending at the time of such rescission may be continued and completed as if the provisions of this Ordinance were still in force.”

160.This sub-section, it is stated, contradicts the preamble. Emergency legislation is something drastic and immediate; the Governor-General is not vested with prophetic powers enabling him to legislate with respect to some emergency which has not arisen. If the Governor-General judged that such an emergency had arisen he would take immediate action by setting up special courts. He does nothing of the sort. He sets up nothing. He says that the Ordinance itself is not in force and shall not come into force until the Provincial Government considers that it should be brought into force by reason of its being satisfied that a certain kind of emergency exists.

161. Stress is laid on the words “only if” in s. 1 (3) as showing that the Governor-General did not think at the time of promulgating the Ordinance that any emergency which required to be met immediately by this Ordinance actually existed; again my comment is, we are not to read into s. 72 any such requirement as that it called for a finding as to “an emergency-which-re-quired-to-be-met-immediately-by-this-ordinance”. This section only speaks of “an emergency”.

162.The argument continues, the preamble and s. 1 (3) are contradictory, as to the existence of the supposed requirement. The learned Judge satisfies himself, by what, with due respect, I can only call a roundabout process of reasoning, that it can be inferred that the Governor-General did not think that “an emergency-which-required-to-be-met-immediately-by-this-ordinance” existed, and then he says “s. 1 (3) contains a clear and unambiguous statement” It seems to me that the boot is on the other foot. It is the preamble and not the section which contains a clear statement. As Khundkar J. in the passage quoted has said “the preamble contains clear words showing that the Governor-General had decided that an emergency existed”.

163. The reason which moved the learned Judge to apply the terms “clear and unambiguous statement” to s. 1 (3) was apparently to bring the matter within the scope of the rule that “the preamble cannot be made use of to control the enactments themselves, when they are expressed in clear and unambiguous terms”. Manifestly, if the statutory words are not clear and unambiguous the rule does not apply. Applying that rule, the learned Judge says: “The preamble cannot be used to alter or deduct from or add to this clear and unambiguous statement in the enactment itself”.

164. I think, with respect, the learned Judge has not appreciated the true scope and meaning of the rule, or the principle underlying it. In my view the rule is a particular application of a wider principle in construing every kind of instrument by which a legal right is created, obligation imposed or power conferred: you are to look to the actual words creating the right, imposing the obligation or conferring the power, as the case may be. If such words are in the enactment, it is to that we must look; if in a preamble, to that. Here the words authenticating the power of the Governor-General to legislate are in the recital, “whereas an emergency has arisen”. They are clear and unambiguous and we are to look, to them only.

165. The learned Judge notices, and scouts, the argument that an emergency existed which made it necessary not to set up special courts immediately but merely to provide the machinery for it. On this point the reasoning of Derbyshire C.J. and Khundkar J, is so clear and convincing that I will content myself with saying that I adopt it and have nothing to add to it.

166. The second branch of the argument is this: The Governor-General has not come to a finding as to emergency. He leaves it to Provincial Governments to discharge the function of coming to that finding; the function on the one hand is personal to the Governor-General and cannot be delegated; the finding on the other is the necessary pre-requisite for there being any jurisdiction to legislate by Ordinance.

167. I will concede at once, that the function is personal; I will concede that the finding is a pre-requisite for legislation.

168.But the whole foundation of the second branch of the argument is the acceptance of the first branch. If the Governor-General has himself judged that there is an emergency, the second branch is completely shut out; and on that view which I take in agreement with the majority of the learned Judges of the High Court this contention of the respondents must fail.

169.In the result I am of opinion that the main contention of the appellant ought to succeed and the contentions of the respondents to fail, that the Ordinance ought to be held to have been validly made and the High Court to have acted without jurisdiction in making the order appealed from: that the appeal should be allowed and the order of the High Court set aside.

170. But as the majority of this Court are of a different opinion the result will follow that the appeal will be dismissed.

171. Per Curiam. In accordance with the judgment of the majority the appeal is dismissed.

Advocates List

Petitioner/Plaintiff/Appellant (s) Advocates

S.N. Barterji (Amiruddin Ahmad with him) for the Appellant.

Respondent/Defendant (s)Advocates

Sir Brojendra Mitter, A.-G. of India, (H.R. Kazimi with him) for the Governor-General in Council.

Sardar Raghbir Singh

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

SIR SRINIVASA VARADACHARIAR

C.J.

SIR MUHAMMAD ZAFRULLA KHAN

ROWLAND

Eq Citation

(1943) 5 FCR 96

1943 MWN (Cri) 76

AIR 1943 FC 36

(1943) 2 Mad LJ 207

(1942-43) 47 CWN 41

1944 Cri LJ 1

(1943) 2 MLJ 207

1943 MWN 380

AIR 1943 FC 36

HeadNote

**Constitution — Emergency powers of Governor-General under S. 42 of the Government of India Act, 1935 — Ordinance-making power — Ordinance can be promulgated only for the peace and tranquility of the country — Ordinance must not interfere with the High Court's powers — Governor-General cannot delegate the legislative power to provincial governments — Impugned Ordinance held ultra vires — Government of India Act, 1935, S. 42**