1. This appln. has been filed under Section 491, Criminal P. C., on behalf of Birma Nai who was arrested on 7-1-1950, under orders of the Dist. Mag. Dholpur.
2. It is alleged on behalf of the petnr. that at the request of. the U. P. Govt. forwarding prima facie evidence against him the Legal Remembrance of the Govt. of the United States of Matsya. ordered the Dist. Mag., Dholpur to surrender him; to the Dist. Mag. Agra to stand his trial in a, case under Section 395, Penal Code pending in his Court. The Dist. Mag. at first after having scrutinised the prima fact evidence had declined to surrender Birma to the U. P. Govt., but when he received an order from the Legal Remembrancer to the United States of Matsya be caused Birma to be arrested on 9-1-1950, for being surrendered to the U. P. Govt.
3. It has been argued by the advocate of the petnr. that there is no law in force in the area of the Dholpur State relating to the extradition of fugitive criminals. The Dist. Mag , Dholpur, had,. therefore, no authority to order his arrest or surrender.
4. It is further alleged that there was a treaty entered into between the British Govt. & the authorities of the Dholpur State regarding extradition of the fugitive criminals but it was not in corporate in any law & that treaty cannot, therefore, be deemed to be law within the meaning: of Section 21, Const. Ind.
5. The Govt. Advocate has conceded that there is no law in force in the area of the them Dholpur State on the subject of the extradition of fugitive criminals, except a treaty between the British Govt. & the Dholpur State, He has argued that the provisions of the Treaty which was entered into between the British Govt. & the Dholpur States should be regarded as having the force of law & the arrest & detention of the petnr. should be. deemed legal under the provisions of that treaty.
6. The question therefore, arises whether a. treaty can be regarded as having the force of law & whether in view of the provisions relating to the fundamenfal rights in the Const. Ind. the arrest & detention of the petnr. can be considered legal.
7. In vol. 6 part v at paras 678 & 679 of the Halsbury's Laws of England, it is laid down as follows :
'678. Treaties.- Treaties or contracts between nation, & nation, which are also known under the name of conventions, declarations, protocols, or general acts, are usually agreed upon by agents appointed by the treaty making authority in either State, the English agents for such purposes being appointed by the Crown.
Where plenipotentiaries, or agents invested with full &;. unlimited powers, are appointed, the terms of the treaty as agreed upon by such agents are invariably (though not necessarily, it seems) reduced into writing & signed & sealed by them, when the treaty becomes binding in general, though subsequent ratification by the sovereign power is usual. Where the agents are acting under a limited authority, the agreements come to are usually termed spensions, & must be either tacitly or explicitly ratified by the sovereign power in the respective States.
The Great Seal of the United Kingdom is to be used for; sealing all treaties with foreign princes & States.
679. Parliamentary Sanction to 'Treaties.- Treaties thus concluded are in general binding upon the subject without express parliamentary sanction; but the previous Consent of, or subsequent ratification by, the legislature is legally necessary to their validity in certain cases.
Thus, though treaties relating to war & pence, the session of territory, or concluding alliances with foreign powers are generally conceded to be binding upon the nation without express parliamentary sanction, it is deemed safer to obtain such sanction in the case of an important session of territory. And where taxation is imposed or a grant from the public funds rendered necessary, or where the existing laws of trade & Gavigation are affected, or where the private rights of the subject are interfered with by a treaty concluded in time of peace, it is apprehended that the previous or subsequent consent of Parliament is in all cases required to render the treaty binding upon the subject & enforceable by officers of the Crown. But where the treaty is made to pat an end to war, or, possibly to prevent war, on public grounds & for the public safety, it is doubtful whether the sanction of the Parliament would be always required. In all oases, however, the Cts. are competent to inquire into matters involving the construction of treaties & other acts of state; & the plea of an act of state, or that the matter Involves the construction of treaties affords no valid defence to an action against officers of the Crown for interference with the private sights of a British subject
8. In the Parlement Belge, (1879) 4 P. D. 129, a question arose regarding validity of the treaty involving interference with the private rights. The question in this case was whether the Crown had power by treaty to confer upon in Belgian packet boats the status of ships of war when in British ports .& thus render them immune from actions brought by a Brush subject. Sir E. Phillimore held that the making of such a treaty was
'a user of the treaty-making power of the Crown without precedent, & in principle contrary to the laws of the constitution' (ibid., at p. 154).
The judgment in this case was subsequently have, by the Ct. of Appeal, but upon other grounds. In Walker v. Baird, U892-A.O. 491:6l L. J. P. C. 92) an action was brought against an officer of the Crown for acts of interference with the pltf's. lobster fishery, & the principle involved in the defence was that the Crown could bind its subjects by treaty (at any rate when made to put an end to war or to prevent war), that it is an offence by the common law to disobey the provisions of a public treaty or modus vivendi of the kind in question & that acts of the executive in enforcing obedience to such a treaty do not give a cause of action (see ibid at p. 492). The P.C. did not give any decision as to the powers of the Crown in such cases, but held that the deft's acts could not be justified on the ground that they were done by the authority of the Crown for the purpose of enforcing obedience to a treaty or agreement entered into by the Crown & a foreign power (ibid, at pp. 496, 497).
9. It would appear from the extracts quoted above that in England under common law a treaty requires the sanction of the of the Parliament to make it enforceable by the officers of the Crown & binding upon the nation in cases where it interferes with the private rights of a subject.
10. A similar question arose in the case of Mangilal v. Sarkar in the Ct. of the Final Appeal, udaipur, regarding validity of an extradition treaty between the Stated of udaipur & Gwalior which was not enacted into a law. The following extract from the judgment of the Ct. of Final Appeal is reproduced below as it throws much light on the question involved in this case: A. treaty was entered into between the Mewar State, & the Gwalior State relating to extradition in the year 1915.
Pursuant to the treaty, however, no extradition law appears to have been passed by Shriji though executive orders order to dist.. officers appear to have been passed on 3-2-1915. It is unfortunate that in a matter like extradition there should have been no law exp: expressly brought into force in Mewar The law of extradition was stated by Lord Russel C. J. in Re; Arton (1896) 1 Q. B. (No. I), 108 : (65 L. J. M. C. 23) at p. 1112.
'The law of extradition is without doubt founded upon the broad principle that it is to the interest of civilised communities that crimes, acknowledged to be such should not go unpunished & it is part of the comity of nations that one State should afford to another every assistance towards bringing persona guilty of such crimes to justice. But in the application of this principle in certain matters, such as the conditions upon which, and the class of crimes in respect of which, extradiction is to be granted & the formalities to be observed upon an application for extradition are primarily matters for two political powers concerned to arrange in the first instance by treaty; having arranged them by treaty, the next step is by legislative enactment to give them the form of law & to express. in an Act of Parliament the conditions & the limitations imposed upon the grant of extradition & the class of crimes to which extradition is to apply. It is to the expression of the legislature in Acts of Parliament & to that alone that judicial tribunals can refer ' per Lord Bushel C J. in Re.. Arton (1896) 1 Q. B. 101, p. 111-2, (65 L. J. M. C.23).
Mere execution of treaty for extradition cannot by itself be treated as equivalent to enacting law carrying it into effect. Treaties which are part of international law do not form part of the law of the land unless expressly made so by the legislature. Oppenheim, International Law Vol. 1 p. 38. The same is the position under the Govt. of India Act, 1935 'Implementing of treaties & extradition, Sen. VII, list I, item 3 are both matters for which there must be legislation before action can be taken. The Mewar Govt. appears to have proceeded throughout on the basis that merely signing of the treaty & issue of executive orders to dist officials was sufficient to make its stipulations binding upon its subjects, the Cts. & officials. But the official publication of a treaty by the Govt. under international law will be sufficient only if the Municipal law of that State justified it. It appears that the Mewar Govt. have been acting for many years on the footing that the treaty & the orders of Shriji operate as Municipal law. Even, the treaty with the British Govt. made on 16-12-1868 & found in Aitcheson's Treaties. Vol. III p. 36 does not appear to have been brought into operation by legislative enactment. Under Article XXIV Clause 4 (1) of the Constitution all laws in force on the date of its promulgation have been continued as such after its promulgation, but in our opinion a practice of the kind aforesaid cannot be deemed to be a law which is continued by the Constitution.'
11. It may be noted that the treaty between the British Govt. & the Dholpur State after it was signed was not given the form of law by means of a legislative enactment. But it was being acted upon by the Dholpur State authorities up to the time the State was merged into the United States of Matsya, as if it was good law. Perhaps nobody may have questioned its legality. All laws that were in force in the then Dholpur State & subsequently in the United States of Matsya continued to be the laws in force in the area of the former Daolpur State, firstly under the provisions of the Ordinance NO. 1 of the United States of Rajastban & subsequently by virtue of Section 372, Const. Ind. Treaties which are part of the international law do not form part of the law of the land unless expressly made so by the legislative authority. In the present case the treaty remained a treaty only & no action was taken to incorporate it into a law. That treaty cannot, there- fore, be regarded as a part of the Municipal law of the then Dholpur State, & the practice of surrendering fugitive criminals, which was being followed by the former Dholpur State cannot be deemed to be a law that could be continued under Section 872, Coast. Ind. S. 21, Const. Ind. lays down :
'that no person shall be deprived of his life or personal liberty except according to procedure established by law.'
When the extradition treaty of the Dholpur State is, as discussed above, held not to possess the force of law the liberty of a citizen of India cannot be taken away under it. The detention of the petnr. under the provisions of this treaty cannot, therefore, be held valid, because it cannot be said to be according to procedure established by law.
12. The other argument of the learned counsel of the penr. might also be not without force that even supposing that the extradition treaty was good law the detention of the petnr cannot be justified under its terms, because under the terms of treaty only non. Dholpur State subjects could be surrendered if they took shelter within the territories of the Dholpur State after having committed an offence in the British territories, & there is no provision whatsoever in the tready of surrender Of surrender of a Dholpur State subject. The petnr. was a subject of the Dholpur State & is now a citizen of the State of Rajasthan. In view of the foregoing discussion of the legal position of the treaty, it is not very necessary here to go into the interpretation of the terms of that treaty.
13. In conclusion it may be observed that the detention of the petnr. being not in accordance with the procedure established by law an order under Section 491 to set him free should be made. This petn. is accepted & it is ordered that Birma Nai be sat at liberty forthwith.
14. I agree.