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Baldeo Das on Behalf of Kamlapati Tewari Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1943All331
AppellantBaldeo Das on Behalf of Kamlapati Tewari
RespondentEmperor
Excerpt:
.....or superseded by any such act. 5. in view of this provision, it is clear that, though the power to make ordinances 'is subject to like restrictions as the power of the indian legislature to make laws,'an ordinance that does not contravene such restrictions has, when made and promulgated, the like force of law as an act passed by the indian legislature. whom the authority empowered by the rules to apprehend or detain as the case may be suspects on ground appearing to such authority to be reasonable .or being likely to act .the maintenance of public order .or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. it is a well recognized rule that statutes should, as far..........or superseded by any such act.5. in view of this provision, it is clear that, though the power to make ordinances 'is subject to like restrictions as the power of the indian legislature to make laws,' an ordinance that does not contravene such restrictions has, when made and promulgated, 'the like force of law as an act passed by the indian legislature.' it was not suggested that the governor-general in making and promulgating the ordinance in question transgressed any such restrictions. further it is not and cannot be disputed that it is within the competence of the indian legislature to make laws with retrospective effect the governor-general is, therefore, competent to make and promulgate ordinances giving the same retrospective effect. it follows that the governor-general had the.....
Judgment:
ORDER

Iqbal Ahmad, C. J.

1. This is an application under Section 491, Criminal P. C, and was filed on 27th April last by one Baldeva Das with a view to secure the release of Pt. Kamlapati Tewari from detention under an order purporting to be made under Rule 26 of the Defence of India Rules. The application is supported by an affidavit which shows that Kamlapati Tewari, who is a member of the Legislative Assembly, United Provinces, attended a meeting of the All India Congress Committee at Bombay and, on his return journey from Bombay was arrested at the Allahabad Railway Station on the night of 10th August 1912, and is at present detained under Rule 26. Sir Tej Bahadur Sapru, who appeared for the applicant, contended that Rule 26 of the Defence of India Rules was invalid and submitted that it had been so held in a recent case by the Federal Court. On 27th April I adjourned the hearing of the application to this date to enable Sir Tej Bahadur Sapru to file a certified copy of the judgment of the Federal Court and he has today filed a copy of that judgment of the Federal Court, (Keshav Talpade v. Emperor ('43) 30 A.I.R. F.C. 1). A perusal of the copy shows that the Federal Court has held that

Rule 26 in its present form goes beyond the rulemaking powers which the Legislature has thought fit to confer upon the Central Government and is for that reason invalid.

2. If the matter rested there, there would be no answer to the present application. The Government Advocate, however, submitted that, in the interval that elapsed between 27th April and today's date the Governor-General had passed an Ordinance that nullified the effect of the decision of the Federal Court and in support of this submission, he produced a copy of an Extraordinary Gazette of India dated 28th April 1943. The Ordinance relied upon by the Government Advocate is published in this Gazette and is ordinance No. 14 of 1943. The Ordinance is headed as 'An Ordinance further to amend the Defence of India Act, 1939' and the preamble to the Ordinance is as follows:

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

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

3. The Ordinance contains three sections which read as follows:

1. Short title and commencement

(1) This Ordinance may be called the Defence of India (Amendment) Ordinance, 1943.

(2) It shall come into force at once.

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

(x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be suspects on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything;3. Validity of orders made under Rule 26, Defence of India Rules:--For the removal of doubts it is hereby enacted that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act, 1939.

4. The Ordinance, prima facie, puts the validity of Rule 26 beyond question and furnishes a complete answer to the application of Baldeva Das, but the validity of the Ordinance itself was questioned by Sir Tej Bahadur Sapru. He contended that by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act, 1935, the Governor-General was empowered to make and promulgate ordinances only with prospective and not with retrospective effect. He, therefore, maintained that if the ordinance purported to amend the Defence of India Act with retrospective effect it was ultra vires the Governor-General. In the alternative he contended that on a true interpretation the Ordinance could only operate from the date it was promulgated, and as such, could not adversely affect the application of Baldeva Das that was filed on 27th April, a day before the Ordinance was promulgated. In my judgment there is no force in these contentions. Section 72, Government of India Act, as set out in Schedule 9, Government of India Act, 1935, gives wide and extensive power to the Governor General to make and promulgate ordinances and reads as follows:

72. The Governor-General may, in oases 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.

5. In view of this provision, it is clear that, though the power to make ordinances 'is subject to like restrictions as the power of the Indian Legislature to make laws,' an ordinance that does not contravene such restrictions has, when made and promulgated, 'the like force of law as an Act passed by the Indian Legislature.' It was not suggested that the Governor-General in making and promulgating the Ordinance in question transgressed any such restrictions. Further it is not and cannot be disputed that it is within the competence of the Indian Legislature to make laws with retrospective effect The Governor-General is, therefore, competent to make and promulgate ordinances giving the same retrospective effect. It follows that the Governor-General had the power to make amendments in the Defence of India Act and give such amendments retrospective effect.

6. The question, however, remains whether the amendments introduced by the Ordinance in the Defence of India Act are with retrospective effect. In my judgment, they are. By Section 2 of the Ordinance a new clause has been substituted for Clause (x) of Section 2 (2), Defence of India Act, and Section 2 of the Ordinance does not merely substitute the new clause for the previous one but proceeds to enjoin that the new clause 'shall be deemed always to have been substituted.' The words just quoted are of clear and unambiguous import and plainly indicate that the substituted clause must always be deemed to have existed in the Defence of India Act. The amendment made in that Act by the Ordinance is, therefore, to my mind, with retrospective effect. The historical background of the Ordinance also unmistakably points to the same conclusion. Sub-section (1) of Section 2, Defence of India Act, confers wide powers on the Central Government to make rules for securing the objects specified therein and enacts as follows:

2. (1) The Central Government may by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.

7. Before the passing of the Ordinance in question Sub-section (2) of Section 2 inter alia provided that:

(2) Without prejudice to the generality of the powers conferred by Sub-section (1),the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely:

(x) the apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing anything.

8. It was in exercise of this rule-making power that the Central Government made Rule 26. The Federal Court, in the decision referred to above, however, held that in making the rule the Central Government had proceeded beyond the rule-making power given to it by the Legislature and in this connexion made the following observations:

The Legislature having set out in plain and unambiguous language in para. (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in Section 2 (1) in order to justify a rule which so plainly goes beyond the limits of para. (x); though if para. (x) were not in the Act at all, perhaps different considerations might apply: see Rex v. Halliday (1917) 1917 A. C. 260.

9. This observation of the Federal Court puts it beyond doubt that the power of the Central Government to make Rule 26 was referable not to Sub-section (1) but to para. (x) of Sub-section (2) of Section 2 and that B. 26 was in excess of the power given by that paragraph. It is equally beyond dispute that the new Ordinance was made with a view to validate Rule 26. This could be done only by suitably amending para. (x) so as to confer powers wide enough on the Central Government to legalize Rule 26. In the course of its judgment the Federal Court remarked that

if the words in Section 2 (2) (x) were 'the apprehension and detention in custody of any person suspected by the apprehending or detaining authority on grounds which appear to them to be reasonable,' no difficulty would have arisen; but no such formula is used. But, even if we are to read the words as though they ran 'the apprehension and detention in custody of any person reasonably suspected by the apprehending or detaining authority,' that does not seem to us necessarily to imply that the authority's own belief in the reasonableness of their suspicions is not open to challenge... The Legislature might have conferred upon the Central Government the power of making a rule as wide as this, but we are clear that it has not yet done so.

10. It was, in my opinion, in the light of these and similar observations of the Federal Court that the new Ordinance introduced in para. (x) the following words which did not previously find a place therein:

Whom the authority empowered by the rules to apprehend or detain as the case may be suspects on ground appearing to such authority to be reasonable ... or being likely to act ... the maintenance of public order ... or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.

11. In short, there is no escape from the conclusion that the Ordinance in question was passed solely with the object of putting the validity of Rules 26 beyond question not from the date that the Ordinance was made and promulgated, but from the date on which Rule 28 was made by the Central Government. This object could only be achieved by amending para. (x) of Sub-section (2) with retrospective effect and, in my judgment, the Ordinance has done so. Lastly Section 3 of the Ordinance sets at rest all doubts on the subject and unmistakably shows that the object of the Ordinance was to nullify the effect of the decision of the Federal Court and to give validity to Rule 26 from its very inception. In the course of his arguments, Sir Tej Bahadur Sapru placed reliance on the following observations made by Sulaiman J. in The United Provinces v. Mt. Atiqua Begum :

Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action when the language of the statute does not compel them to do so. It is a well recognized rule that statutes should, as far as possible, be so interpreted as not to affect vested rights adversely particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly, and not given a liberal interpretation.

12. He contended that as the present application was filed on 27th April and the Ordinance was not made till 28th April the Ordinance could not adversely affect the application. The answer to this contention is furnished by Section 3 of the Ordinance which is mandatory and enjoins that an order under Rule 26 cannot be called in question on the ground that it was in excess of the rulemaking power given by the Defence of India Act. In view of Section 3 it is my duty to hold that para. (x) of Sub-section (2), as now substituted, all along existed in the Defence of India Act and, in view of that clause, the Central Government was competent to enact Rule 26. That being so, it is impossible to hold that the detention of Kamlapati Tewari is illegal. In this view of the matter this application must fail and is dismissed.

13. N. B. -- Leave to appeal to the Federal Court is granted.


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