1. The question which we have to answer is whether the Governor-General had power validly to enact Section 2 of ordinance 14 of 1943. His powers of legislation are derived from the provisions of Section 72 set out in Schedule 9, Government of India Act, 1935. These provisions as amended are as follows:
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 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this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.
There is a provision in the India and Burma (Emergency Provisions) Act, 1940, that the Governor-General shall not be subject to certain restrictions imposed on the Indian Legislature but it is sufficient for the purpose of this judgment to point out that the powers of the Governor-General are at least as great as those of the Indian Legislature. No greater restriction is imposed upon him. It is true that he can make and promulgate ordinances only in cases of emergency but as he is the sole judge of the existence of an emergency that fact imposes no external restriction upon him-I do not suppose that it could be suggested that any Court of law could arrogate to itself the right to sit in judgment upon the merits of any ordinance and hold it to be invalid upon the ground that it was not for the peace and good government of British India. It is not for the Courts to pronounce upon the expediency of legislation. There can be no doubt in my judgment that the Governor-General has all the legislative powers of the Indian Legislature. It has not been argued before us that the Indian Legislature could not have passed an Act containing the provisions of Section 2, Ordinance 14 of 1943. It follows quite simply that the Governor-General could make and promulgate an Ordinance containing those provisions.
2. It has, however, been argued before us that Section 2, Ordinance 14 of 1943, is invalid for two reasons, namely, (1) that the Governor-General cannot make an ordinance with retrospective effect and (2) that he cannot expressly repeal (or, I suppose, amend) an Act of the Indian Legislature. Learned Counsel for the applicant referred us to the case in Shib Nath v. Porter : AIR1943Cal377 and to the judgment of Zafrulla Khan J. in Emperor v. Sibnath Banerjee . As the learned Judge in the latter case refrained from expressing any final opinion upon the validity of the provisions with which we are concerned, his remarks must be regarded not as authoritative but as tentative. In the Calcutta case the learned Judges unanimously repelled the contention that an Ordinance could not have retrospective effect and I can see no reason for differing from them. As the Legislature is concerned with rights, obligations and liabilities only as they will be after a law is made, it is difficult to see how any legislation can be retrospective otherwise than in form. When the Legislature purports to repeal or amend a law with retrospective effect it does not and cannot change the past in fact; it adopts merely a convenient mode of defining the position in the future and if the future position is within its control, it does not exceed its powers because it decrees that that position is to be defined upon the assumption that the law in the past was otherwise than in fact it was. In the particular instance with which we are dealing the ordinance provides in substance that certain persons are liable to detention in the future although they were not properly so liable in the past and that any rights or liabilities which might have accrued from their past illegal detention shall no longer be enforceable. It cannot be doubted that the Governor-General had power to make these provisions and his power is not affected by the fact that he expressed his intention in a particular manner. I hold that Section 2 of the Ordinance is not invalid, because it purports to have retrospective effect.
3. In his second contention learned Counsel has the support of two of the three learned Judges who decided the case in Shib Nath v. Porter : AIR1943Cal377 . His argument is based mainly upon the alleged authority of Attorney-General for Ontario v. Attorney-General for the Dominion of Canada (1896) 1896 A.C. 348. The facts of that case were that the Dominion Parliament had passed an Act giving every county and city in the Dominion the option of imposing prohibition upon the sale of intoxicating liquor and this was followed by an Act passed by the Provincial Legislature of Ontario giving cities and towns in the province the option of imposing partial prohibition on such sale. The question was whether the Provincial Act was valid. Their Lordships of the Privy Council decided that both Legislatures had power to make laws of this nature and although the Dominion law would prevail in the event of conflict, there was in fact no conflict because it depended upon the option of each locality which law, if either, should come into operation. This decision itself is not relevant to the question which we have to consider but it appears that an argument was addressed to their Lordships upon the basis of the fact that the Dominion Act had purported expressly to repeal a previous provincial Act on the same subject and their Lordships said that it appeared to them that neither the Parliament of Canada nor the provincial Legislatures had authority to repeal statutes which they could not directly enact. It is this proposition which is said to support the contention that the Governor-General could not repeal (or amend) a section in the Defence of India Act which was passed by the Indian Legislature.
4. It seems to me with the greatest respect that this isolated sentence in their Lordships' judgment to be properly understood must be read in its context. Their Lordships considered the provisions of Sections 91 and 92, British North America Act, which define the respective powers of the Dominion Parliament and of the Provincial Legislatures. Section 91 gave the provinces the exclusive power to legislate upon sixteen classes of subjects including, as the last class, 'generally all matters of a merely local and private nature in the province.' Section 92 gave the Dominion the special power to legislate upon certain enumerated classes of subjects and a general power to legislate upon all matters affecting the peace, order and good government of Canada not coming within the classes of subjects assigned exclusively to the provinces. It contained also a provision that any matter coming within the classes of subjects enumerated in it should not be deemed to come within the class of matters of a local and private nature comprised in the enumeration of classes of subjects assigned exclusively to the provinces. Their Lordships found that this provision which referred to all the sixteen classes of subjects in the provincial list, did not apply to the general power to legislate for the peace, order and good government of Canada but only to the special power to legislate upon particular subjects. They found further that prohibition of the sale of intoxicating liquor was not one of the subjects enumerated in Section 91 and that the Dominion Parliament could deal with it only in the interests of Canada as a whole. As the Provincial Temperance Act which the Dominion Parliament purported to repeal was of purely local interest, it was outside the scope of the powers of the Dominion Parliament and it was held for this reason that that Parliament could not directly interfere with it; if the Dominion, Parliament made an Act which was in the interests of Canada as a whole and the provisions of that Act were repugnant to the provisions of the provincial Act the former would prevail over the latter and would thus indirectly affect it. It is clear that a Legislature which cannot legislate positively de novo upon any subject cannot legislate upon that subject by amendment or negatively by repeal and it does not seem to me that their Lordships meant to lay down any wider proposition. They said:
The old Temperance Act of 1864 was passed for Upper Canada or, in other words, for the province of Ontario; and its provisions, being confined to that province only, could not have been directly enacted by the Parliament of Canada. In the present case the Parliament of Canada would have no power to pass a prohibitory law for the province of Ontario; and could therefore have no authority to repeal in express terms an Act which is limited in its operation to that province.
5. Their Lordships were dealing with a substantial conflict between the legislative powers of the Dominion and those of its autonomous provinces. There is no conflict in India between the legislative powers of the Indian Legislature and those of the Governor-General. With certain exceptions in favour of the Governor-General each can make any law that the other can make and the law which is later in time will prevail. It is conceded, I understand, that a later self-contained ordinance will prevail by repugnancy over an earlier Act on the same subject. Any inconvenience which might be caused if these parallel Legislatures were constantly repealing each others law is avoided by the provisions of Section 108, Government of India Act, 1935, which preclude the Indian Legislature from considering, without the previous sanction of the Governor-General, any bill which repeals, amends or is repugnant to any ordinance. A reference to the passage I have quoted above will show that the reasoning of their Lordships cannot apply to the case before us because it would not be true to say that the Governor-General would have no power to enact the provisions of the Defence of India Act. The proposition that a Legislature which cannot make a law on any subject cannot repeal or amend a law on that subject does not help the applicant because the Governor-General could make the law which he purports to amend. The applicant would have to rely upon the proposition that a Legislature which can make a law cannot repeal or amend a law which has previously been made on the same subject, a proposition for which there is no authority and which has no basis in reason because to repeal or amend an existing law is in substance to make a new one. In my judgment there is nothing in the Canadian cases which justifies the conclusion that Section 2 of the Ordinance is invalid.
6. With the greatest deference to the opinion of Mitter J., as expressed in Shib Nath v. Porter : AIR1943Cal377 , it seems to me that his argument was i based upon the assumption that the Dominion Parliament and the provincial Legislature of Ontario had parallel powers of legislation whereas the decision in the Canadian cases rested upon the fact that they had not. It is true that both were competent to legislate on the subject of prohibition but the finding was that the provincial Legislature could and the Dominion Parliament could not legislate upon the subject of prohibition in so far as it affected one province alone. That was not a case of one competent legislative body repealing a law made by another legislative body equally competent. Nothing turned upon the occupation of the field of legislation by the provincial Legislature. Their Lordships found that such occupation did not affect the right of the Dominion Parliament to pass a valid Act. The occupation of the field by the Dominion Parliament would have excluded the provincial Legislature because the latter could not make a law repugnant to one made by the former but that fact is in no way relevant, as there is nothing in the Government of India Act, 1935, to suggest that the Governor-General cannot make a law repugnant to one made by the Indian Legislature. I do not think that any conclusion about the power of the Governor General to repeal an Act of the Indian Legislature can be drawn from the provisions of Sections 92 and 95, Government of India Act, 1935, which give the Governor an express power to repeal. They may well have been introduced to dispel any doubts which might have arisen whether the making of a Regulation was merely an executive act which could not interfere with existing legislation.
7. Sen J. in the same case speaks of two legislative bodies with equal powers to legislate in the same field and goes on to say that each legislates in its own field. With the greatest respect it seems to me, if there is one field, there cannot be two. This is merely another way of saying that there can be no question of repugnancy where the powers of the two Legislatures are equivalent. The Legislature which passes the later law is perfectly entitled to say that the previous law shall no longer have any force. The very statement that the powers are equivalent entails the consequence that it can legislate directly about the matter of the repealed Act. A question of repugnancy could arise only when the powers of the two Legislatures were not equivalent so that one could legislate directly and the other only indirectly upon that matter. In the Canadian cases their Lordships treated the two statutes not as dealing with one matter namely the subject of prohibition but as dealing with two matters namely the subject of prohibition as it affected only one province and the subject of prohibitions as it affected the whole Dominion. No analogous distinction can be made between the matter of the Defence of India Act and the matter of Ordinance 14 of 1943. The Dominion Parliament could interfere with the law upon the matter of the Provincial Act only by way of incident when it was dealing with some other or larger matter. The Governor-General without, doing anything else can change or abrogate any part of the law expressed in the Defence of India Act. To say then that the Governor-General cannot repeal or amend that Act is merely to say that he must not express his intention in a certain form of words and I do not know of any general principle or rule of law which requires a Legislature to employ or not to employ a particular mode of expression.
8. It seems that the inherent conception underlying the argument addressed to us is that suggested by Sen J. when he says that it is difficult to appreciate how there can be any inherent power in the Governor-General as ordinance-maker to introduce an ordinance into an Act and make it part of the product of the Indian Legislature. The Governor-General and the Indian Legislature have equal power to make law but the laws made by the former are called Ordinances and the laws made by the latter are called Acts. It is true that the Governor-General could not make an Ordinance and call it an Act but he has not purported to do anything of the sort. For facility of reference copies of the Defence of India Act may be written out or printed as amended by the Ordinance but in principle and substance the amended Act will not appear in the Statute Book as though it had been passed in that form by the Indian Legislature. Nothing will be imputed to the Indian Legislature which it has not in fact done. No substitution will be effected in the original authentic transcript of the Act although it will be deemed for the purpose of assessing future rights and liabilities that the law has always been as now amended. It seems to me with the greatest deference that the argument is vitiated by a certain confusion between the Defence of India Act itself, that is the original authentic transcript, which will remain as it is, and copies of the Act which will doubtless appear with the amendment incorporated therein. The copies are not the Act. The Ordinance is an independent piece of legislation and its effect is that the law in future will be ascertainable from the Act and the Ordinance read in conjunction. For the reasons I have given my answer to the question before us is that Section 2 of Ordinance 14 of 1943 has been validly enacted.
Iqbal Ahmad, C.J.
9. I agree.
10. I agree that the answer to the question referred to us is that Section 2 of Ordinance 14 of 1943 has been validly enacted.
11. Our conclusion is that Section 2 of Ordinance 14 of 1943 has been validly enacted. A certificate is granted under Section 205, Government of India Act, 1935.