Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him : Now, therefore, I, in pursuance of the power conferred on me by Regulation 18-B of the Defence (General) Regulations, 1939, hereby make the following order : I direct that the above mentioned Jack Perlzweig alias Robert Liversidge be detained.
(Signed) John Anderson,
One of His Majesty's Principal Secretaries of State.
Beyond the production of this order, the Secretary of State who made the order did not make an affidavit in the action. It was contended inter alia that the mere production of an order signed by the Secretary of State was not a sufficient prima facie defence and the onus lay on the respondent to give evidence at the trial to prove that Sir John Anderson had reasonable grounds for the belief recited in the order. Viscount Maugham sums up his conclusion thus:
The result is that there is no preliminary question of fact which can be submitted to the Courts, and that in effect there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith.
In support of this conclusion, the learned Lord relies on four circumstances : First, that it was a matter for executive discretion and the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a Judge in a Court of Law could not have been contemplated; secondly, that the Home Secretary could act on hearsay and was not required to obtain any legal evidence and therefore the Home Secretary was not acting judicially in such a case; thirdly, that in many cases he will be acting on information of a most confidential character which could not be communicated to the person detained or disclosed in Court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm; and fourthly, that the person who is primarily entrusted with the duties under the Regulation is one of the Principal Secretaries of State and a member of the Government answerable to Parliament for the proper discharge of his duties.
45. Dealing with the question whether the onus was thrown on the Secretary of State who made the order for detention to give evidence to show that he had reasonable cause, his Lordship said:
In my opinion, the well-known presumption omnia esse rite acta applies to this order, and, accordingly, assuming the order to be proved or admitted, it must be taken prima facie, that is unless the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with. It will be noted that on the view I have expressed as to the construction of the regulation it is the personal belief of the Secretary of State that is in question, and that, if the appellant's contention 011 this point were correct, the same question would arise in the numerous cases where an executive order depends on the Secretary of State or some other public officer being ' satisfied ' of some fact or circumstance. It has never, I think, been suggested in such cases that the Secretary of State or public officer must prove that he was so ' satisfied ' when he made the order.
These last observations have a great bearing in this case, because the language of Section 2(1) of Madras Act I of 1947 is:
The Provincial Government, if satisfied with respect to any particular person that he is acting or about to act in any manner prejudicial to the public safety or the maintenance of public order...
46. Lord Macmillan states the rival views on the subject thus:
Before he exercises the power confined to him of making a detention order against any individual the Secretary of State must have reasonable cause to believe certain things about that individuals. Does this mean that the Secretary of State must have such cause of belief regarding the relevant facts as a Court of Law would hold sufficient to induce belief in the mind of any ordinary reasonable man Or does it mean that he must have such cause of belief as he himself deems to be reasonable? To require that a cause of belief shall be reasonable necessarily implies a reference to some standard of reasonableness. Is the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State's own mind, or is it the personal standard of what the Secretary of State himself deems reasonable? Between these two readings there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of S(sic) had for his belief may, if challenged, be examined in a Court of Law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man, and to enable the Court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he cannot, if he has acted in good faith, be called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief.
In discussing those rival views, the learned Lord refers to the following rule of construction:
The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time.
After stating that a Court of Law manifestly could not pronounce on the reasonableness of the Secretary of State's cause of belief, the learned Lord finally pronounces the following opinion:. In my opinion, the production by the Secretary of State of an order of detention by him ex facie regular and duly authenticated, such as the House has before it in this case, constitutes, a peremptory defence to any action of false imprisonment and places on the plaintiff the burden of establishing that the order is unwarranted, defective or otherwise invalid.
Lord Wright meets the argument pressed before the House based on the liberty of the subject and to the suggestion that the House was being asked ' to countenance arbitrary, despotic or tyrannous conduct.' Notwithstanding all his prejudices in favour of upholding the liberty of the subject, he came to a clear conclusion which agreed with that of the Court of Appeal, though his Lordship was inclined to hold that the Court may no doubt be called on to decide questions of bona fides or mistaken identity, if they should ever arise.
47. Lord Romer poses the question for decision thus:
Before an order can be made by the Secretary of State is it necessary that there should in fact exist reasonable grounds for his belief, or is it sufficient that there are grounds for his belief that appear to him to be reasonable?
and he accepted the contention of the respondent, that it is the second alternative which is a condition precedent. At page 282, he says:
It is also to be noticed that the words of para. I are not 'if there is reasonable cause to believe,' but, ' if the Secretary of State has reasonable cause to believe'.... Not only is the belief to be his. The estimate of the reasonableness of the causes that have induced such belief is also to be his and his alone.
48. The decision in Greene v. Secretary of State for Home Affairs (1942) A.C. 284 turned on a construction of the same Regulation, but it directly arose out of an application for a writ of habeas corpus. It was held that the production of the Home Secretary's order of detention, the authenticity and good faith of which were not impugned, constituted a complete answer to an application by the appellant for a writ of habeas 'corpus, and no affidavit by the Home Secretary justifying his cause of belief was necessary, and the decision in Liversidge v. Sir John Anderson (1942) A.C. 206 was followed. Viscount Maugham states the two propositions laid down in the Liversidge's case (1942) A.C. 206 us:
Your Lordships there decided that the words, in the context in which they are found, refer simply to the belief of the Secretary of State based on his view as to there being reasonable cause for the personal belief which justifies the detention order....Your Lordships also expressed the opinion that the Secretary of State could not be called on to disclose his information or grounds of belief if he took the view that it would be contrary to the public interest to do so.
He held that the order itself was a sufficient answer and that it must be presumed that the Secretary of State had what he considered reasonable cause for his belief.
49. The following observations from the speech of Lord Macmillan are to the same effect:
The Secretary of State is not bound to disclose or to justify to any Court the grounds on which he conceived himself to have reasonable cause to believe that the appellant was a person of hostile associations and that by reason thereof it was necessary to exercise control over him. The result, in my opinion, is that the production of the Secretary of State's order, the authenticity and good faith of which is in no way impugned, constitutes a complete and peremptory answer to the appellant's application.
50. There is an interesting account of the history of the writ of habeas corpus in the speech of Lord Wright, and the use of the writ to secure freedom from arbitrary or unlawful arrest, both by Government and by private parties. The learned Lord answers the main question in the appeal, namely, whether there is a legal cause of detainment, in the following manner, after referring to Liversidge's case (1942) A.C. 206:
It is enough here to say that the regulation gives to the Secretary of State a plenary discretion to make a detention order against the appellant if he has in his own mind and according to his own judgment reasonable cause to believe that the appellant is a person of hostile associations and that by reason thereof it is necessary to exercise control over him .... The order relied on by the respondent is ex facie good and valid. Its authenticity is not disputed. It is not said that the appellant is not the person intended. The order itself justifies the detention.
Again, at page 307:
In the present case there are no facts to inquire into. The only possible inquiry of fact, when once the authenticity of the order and its application to the appellant is conceded or established, is whether the Home Secretary had in his own mind what appeared to his mind to be reasonable cause.
51. It is more than of passing interest to refer to the following passage in Lord Macmillan's judgment in the Liversidge's case (1942) A.C. 206 referring to the advisory committees constituted under the Regulation which are very similar to the advisory council constituted under Madras Act I of 1947:
Were the person detained left without any safeguard, this might be an argument against holding that an absolute discretion has been conferred on the Secretary of State, but the argument is the other way when it is found, as it is in this regulation, that elaborate provision is made for the safeguarding of the detained person's interests. I refer to the constitution of advisory committees to which any person aggrieved by a detention order may make representations. The duty is imposed on the chairman to inform the objector of the grounds on which the detention order has been made and to furnish him with such particulars as are in the chairman's opinion sufficient to enable him to state his case. I say nothing as to the efficacy of this safeguard, for I do not know how it operates in practice, but I emphasise the significance of its presence in the regulation. It suggests that this special procedure was introduced for the very reason that review by the law Courts was excluded.
52. I next come to the class of cases to which Section 16-A would apply. With respect to this class the case in Basanta Chandra Ghose v. King Emperor (1944) 2 M.L.J. 167 : 1944 F.I.J. 203 : 1944 F.C.R. 295 a decision of the Federal Court, is instructive in so far as it dealt with Ordinance No. III of 1944. Section 10(1) of that Ordinance ran as follows:
No order made under this Ordinance, and no order having effect by virtue of Section 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order under Section 491 of the Code of Criminal Procedure, 1898 (V of 1898) in respect of any order made under or having effect under this Ordinance, or in respect of any person the subject of such an order.
Dealing with this provision, Spens, C.J., observed thus:
But it does not follow from this that the Court can no longer consider the validity of an order which on the face of it appears or purports to have been passed under Rule 26. It is on this aspect of the case that the judgment of the Bombay Full Bench is of assistance. We respectfully agree with the learned Judges that the Ordinance does not protect a document which is not really ' an order under Rule 26 ' though it may appear on its face to be the order of an authorised officer. Clauses (1) and (3) of Section 10 of the Ordinance have not introduced any new principle of immunity. Except for the reference to Section 491 of the Criminal Procedure Code, they only re-enact Clauses (1) and (2) of Section 16 of the Defence of India Act, and they had to be so re-enacted because all future orders of detention would be made under the Ordinance itself and could not therefore attract the benefit of Section 16 of the Defence of India Act. The addition in Clause (1) of Section 10 of the words which preclude the exercise of the power under Section 491 of the Criminal Procedure Code involves no change in the legal position. That part of the clause is only consequential upon and must be held to be co-extensive in operation with the preceding part of the clause. Its scope is also limited by the repetition of the words ' any order having effect under this Ordinance'.
In our judgment, no further curtailment of the power of the Court to investigate and interfere with orders for detention has been imposed by Ordinance III of 1944. The Court is and will be still at liberty to investigate whether an order purporting to have been made under Rule 26 and now deemed to be made under Ordinance III or a new order purporting to be made under Ordinance III was in fact validly made, in exactly the same way as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made on any of the grounds indicated in any of the long line of decisions in England and this country on the subject, other than the ground that Rule 26 was ultra vires, Section 10 of Ordinance III will no more prevent it from so finding than Section 16 of the Defence of India Act did. Such an invalid order, though purporting to be an order, will not in fact be an ' order made under this Ordinance ' or having effect by virtue of Section 6 as if made under this Ordinance at all for the purposes of Section 10.
The grounds indicated in the long line of decisions in England referred to by the learned Chief Justice of India are those discussed in the speeches in the House of Lords in Liversidge v. Sir John Anderson (1942) A.C. 206.
53. The effect of this decision of the Federal Court is that in the present case it may be said that the addition of Section 16-A does not make any material difference in the curtailment of the powers of this Court to interfere with orders of detention passed under the Act, though of course only on the grounds indicated in Liversidge v. Sir John Anderson (1942) A.C. 206.
54. This decision, however, does not stand alone. There is a subsequent decision of the Federal Court in Ex-Rana Birpal Singh of Bhajji State v. The King-Emperor (1946) I M.L.J. 322 : I.L.R. 1946 Lah. 96 That case related to a person detained under the provisions of Bengal Regulation III of 1818. Section 491 of the Code of Criminal Procedure contains in Sub-section (3) thereof the following provision:
Nothing in this section applied to persons detained under the Bengal State Prisoners Regulation, 1818.
Learned Counsel appearing for the person detained contended inter alia that the appellant was still de jure the ruler of Bhajji State and as such not within the category of persons in respect of whom any warrant of commitment could be issued under the Regulation and also that the form of the warrant did not on the face of it sufficiently indicate that it was a warrant issued by the Central Government as required by Section 7-A of Regulation III and that positive evidence that the matter had been considered and orders given for its issue by the appropriate officials was required before a Court could hold a warrant a valid warrant under Regulation III. These contentions were rejected by the Federal Court. The learned Chief Justice dealt with these contentions thus:
It is however in our judgment clear that once the Court is satisfied that a person is being detained under Regulation III, there is no jurisdiction under Section 491 which the Court can exercise in the matter. And throughout there has been no suggestion that there is any other jurisdiction which could be exercised by the Court in these proceedings. Accordingly, in our judgment, the material question in this case is : Is the appellant a person detained under Regulation III If he is, this application must fail. The jurisdiction under Section 491 is wholly statutory and governed by the terms of the section. Moreover, it must be appreciated that the very basis of jurisdiction under Sub-section (1)(b) of Section 491, which is the only ' Sub-section under which the Court could be asked to assist the appellant in this case, is expressed to be, illegal or improper detention in public or private custody,' and yet by virtue of Sub-section (3) in cases of persons detained under Regulation III, Sub-section (1)(b) has no application. It seems to us therefore to follow that, something more than allegations that a person is being 'illegally or improperly' detained under Regulation III is necessary before the Court can get over the bar to jurisdiction under the section imposed by Sub-section (3). Complaints as to the illegality or impropriety of the detention, if the detention be under Regulation III, can be dealt with under the procedure laid down in Sections 3, 4 and 5 of Regulation III and may well be the basis of other claims which a Court can properly entertain, but such allegations cannot in our judgment be sufficient to give the Court jurisdiction under Section 491. If on the facts of the case it is clear that a person is being detained under Regulation III, even though a Court might think if it investigated those facts, it might find that the detention was illegal or improper, still the Court cannot in our judgment interfere under Section 491. In this case it is clear that the Government has been claiming to detain the appellant from the 9th September, 194.0, onwards under Regulation III.
55. The learned Chief Justice then went on to decide the only point raised on behalf of the appellant which could possibly have enabled the Court to exercise jurisdiction under Section 491 and that was if in fact the appellant was a person to whom Regulation III does not or cannot apply at all. The appellant claimed to have still the status of a ruler of Bhajji State, but this claim was negatived. It was held that there was no jurisdiction under Section 491 of the Criminal Procedure Code which the Court could exercise in the case. The other questions were not gone into. The learned Chief Justice says:
We do not propose to go into the other questions raised and argued by Mr. Gauba. At most they amount to allegations of illegal or improper detention under Regulation III which even if substantiated would not for the reasons earlier explained give the Court jurisdiction under Section 491.
56. It is true it may appear difficult to reconcile these two decisions of the Federal Court. But after careful consideration, I am of the opinion that the Federal Court did not intend to depart from the rule which they had laid down in the earlier case of Basanla Chandra Ghose v. The King-Emperor (1946) 1 M.L.J. 322 : 9 F.L.J. 1 : I.L.R. 1946 Lah. 96 The decision in the Bhajji case (1944) 2 M.L.J. 167 : 1944 F.L.J. 203 : 1944 F.C.R. 295 must be taken along with the special facts and the contentions on behalf of the petitioner in that case. The detention was made under the provisions of Regulation III of 1818. The material portions of this Regulation are as follows:
Whereas reasons of state, embracing the due maintenance of the alliances formed by the British Government with foreign powers, the preservation of tranquility in the territories of Indian princes entitled to its protection, and the security of the British Dominions from foreign hostility and from internal commotion, occasionally render it necessary, to place under personal restraint, individuals against whom there may not be sufficient ground to institute any judicial proceeding, or when such proceeding may not be adapted to the nature of the case, or may for other reasons be unadvisable or improper; and whereas it is fit that, in every case of the nature herein referred to, the determination to be taken should proceed immediately from the authority of the Governor-General in Council....
(1) When the reasons stated in the preamble to this Regulation may seem to the Governor-General in Council to require that an individual should be placed under personal restraint, without any immediate view to ulterior proceedings of a judicial nature, a warrant of commitment under the authority of the Governor-General in Council, and under the hand of the Chief Secretary to Government, shall be issued to the officer, in whose custody such person is to be placed.
(2) The warrant of commitment shall be in the following form: (The form is not relevant.)
(3) The warrant of commitment shall be sufficient authority for the detention of any state prisoner in any fortress, jail, or other place within the territories subject to the presidency of Fort William.
57. In the case before the Federal Court, it was neither alleged nor established that the warrant of commitment was not in the prescribed form or not in conformity with the provisions of the Regulation. A warrant duly signed by R. Tottenham, Additional Secretary to the Government of India, and containing the statement that the Governor-General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with the Indian States, has seen fit to determine that Birpal Singh, Ex-Rana of Bhajji State shall be placed under personal restraint at Simla was produced. It was not even suggested that any of the grounds on which the Court could in the circumstances treat the order of detention as invalid existed in the case. The only point raised on behalf of the petitioner was that he was still de jure the ruler of Bhajji State and as such not within the category of persons in respect of whom any warrant of commitment could be issued under the Regulation. The learned Chief Justice of India who delivered the judgment was inclined to the view that: if in fact the petitioner was a person to whom the Regulation did not or could not. apply at all, then it might be possible to hold that there was no detention at all (legal or illegal, proper or improper) under Regulation III.
58. It follows, therefore, that whether Section 16 of Madras Act I of 1947 stands alone, or there is in addition thereto the newly inserted provision, Section 16-A, the power and jurisdiction of this Court to pass an order under Section 491 of the Code of Criminal Procedure, remained the same, and subject to the same conditions, qualifications and limitations. The addition of Section 16-A 'involves no change in the legal position.' (Vide 1944 F.C.R. 295 .)
59. What then is the residuum of power and jurisdiction of this Court It is the power to interfere and set at liberty a person who is being detained by an order which though purporting to be made under Section 2 of Madras Act I of 1947, is not in fact such an order. This will be so in the following circumstances:
(a) when the order is not duly authenticated, as for example, when it is passed by an officer or authority not empowered under Section 15 of the Act;
(b) when the person detained in pursuance of the order is not the person, intended to be detained, that is to say, when there is a mistake of identity;
(c) when there is lack of bona fides; and
(d) when it is established that the essential requirement of Section 2, namely, the satisfaction of the Provincial Government or an officer or other authority empowered under Section 15 with respect to the particular person that he is acting or about to act in any manner prejudicial to the public safety or the maintenance of public order and with a view to preventing him it is necessary to direct him to be detained or otherwise dealt with under Section 2(1) of the Act, is not present. If it is established that neither the Provincial Government nor the officer or other authority empowered under Section 15 has exercised its or his mind on the material placed before it or him, then an order of detention, though purporting to be passed under Section 2(2) must be deemed to be not an order under Section 2.
60. These, then, are the only grounds on which in spite of Section 16 and Section 16-A of Madras Act I of 1947 this Court can exercise the power conferred on it by Section 491 of the Code of Criminal Procedure. If these grounds exist, in respect of any detained persons, such a person will not be a person detained or deemed to have been detained under Section 2 of the Act.
61. If these grounds do not exist, it is well established on the highest authority that this Court ' cannot investigate the sufficiency of the material or the reasonableness of the grounds ' (vide 1944 F.C.R. 1) upon which the Government or the empowered officer or authority had been satisfied. It is not competent for this Court to call upon the Government or the detaining authority to disclose the information and material on which it or he was satisfied as to the necessity for the detention of the person concerned. The satisfaction required by the section is the satisfaction of the Government or the empowered authority and not the satisfaction of this Court. There is no question of fact which can be submitted to this Court in this matter. This position was fairly conceded by learned Counsel appearing on behalf of the petitioners.
62. It is equally clear from the authorities which have been cited above that once a duly authenticated order of detention is produced, it must be taken prima facie to have been properly made and that the requisite as to the belief of the Government or the detaining authority was complied with. The burden of proof will lie on the challenger and, of course, the burden is likely to be heavy. (Vide 1945 F.G.R. 195at 217.)
63. Mr. Asker Ali, learned Advocate for some of the petitioners, relied strongly on Section 561 -A of the Code of Criminal Procedure but in my view that section does not enlarge or add to the power of this Court under Section 491 of that Code.
64. The above petitions will be disposed of in the usual course in the light of the observations made above.
65. I agree, but in view of the importance and complexity of the questions involved, I desire to state my reasons and conclusions in my own words.
66. These are a batch of applications filed under Section 491 of the Code of Criminal Procedure which by Sub-section (1), Clause (b) provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty. In view of a certain contention which has been raised at the hearing of these applications and to which I shall in due course refer, the material portion of Sub-section (3) of the above section may also be set out. It is in the following terms:
Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818.
The orders of detention complained of in these applications were made under the powers conferred by an Act of the Provincial Legislature, Madras Act I of 1947. Under Section 2(1)(a) of the Act:
the Provincial Government, if satisfied with respect to any particular person that he is acting or about to act in any manner prejudicial to the public safety or the maintenance of public order and with a view to preventing him, it is necessary so to do, may make an order directing that he be detained.
Section 15 provides for the delegation of the powers and duties of the Provincial Government under the Act to such officers or authorities as the said Government may by order specify. Section 2(2) directs that when any order is made under Sub-section (1) of Section 2 by an officer or authority empowered under Section 15 that officer or authority shall forthwith report the fact to the Provincial Government together with the grounds on which the order has been made and such other particulars as, in the opinion of such officer or authority have a bearing on the necessity for or expediency of the order. Section 3(1) provides that whenever an order in respect of any person is made by the Provincial Government or by any officer or authority subordinate to them the Provincial Government shall communicate to the person affected by the order the grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make if he wishes a representation against the order. Under Section 3, Sub-section (3), the Provincial Government is directed to constitute an advisory council whenever necessary. Sub-sections (2) and (4) of Section 3 provide for the placing of all the material papers by the Provincial Government before the advisory council which is directed to make a report to the Provincial Government after considering the materials placed before it, and if necessary, after calling for such further information from the Provincial Government or from the person concerned.
67. After considering the report of the advisory council the Provincial Government may confirm, modify or cancel the order made under Sub-section (1) of Section 2. [See Section 3, Sub-section (5).] The maximum duration of an order under Section 2 is fixed by Section 4, Sub-section (r) at six months from the date on which such order is confirmed or modified under Sub-section (5) of Section 3, but the Provincial Government may cancel the order at any time before the expiry of that period. Section 4 (2) lays down the procedure where the continuance of an order made under Section 2 beyond the period of six months aforesaid is considered necessary ' or expedient by the Provincial Government.
68. Madras Act I of 1947, received the assent of the Governor-General on nth March, 1947, and we have been told by the learned Advocate-General that it received such assent after having been reserved for the consideration of the Governor-General as contemplated by Section 107(2) of the Government of India Act, 1935.
69. The orders of detention in all the applications before us were made before 25th May, 1948, the materiality of which date will presently appear. Some of the applications were filed before and some after that date.
70. It is common ground that the Provincial Legislature which is bicameral was in session till 24th May, 1948, and that it was prorogued by the Governor on that day. On the next day was promulgated Ordinance, No. II of 1948 which is entitled 'An Ordinance to amend the Madras Maintenance of Public Order Act, 1947.' It is necessary to quote the preamble which is in the following words:
Whereas the Legislature of the Province is not in session, and the Governor of Madras is satisfied that immediate action is necessary for the purpose of amending the Madras Maintenance of Public Order Act, 1947:
And whereas the instructions of the Governor-General have been obtained in pursuance of the proviso to Section 88, Sub-section (1), of the Government of India Act, 1935;
Now, therefore, in exercise of the powers conferred by Section 88, Sub-section (1), aforesaid, the Governor hereby promulgates the following Ordinance.
There is no need to make any detailed reference to the provisions of this Ordinance apart from Section 4. Section 2 provides for the insertion of new Sections 2-A and 2-B in Madras Act I of 1947 which render penal the harbouring or concealing of persons ordered to be detained and the reproducing or publishing of statements made by persons so ordered. Power to seize and search for copies of documents which have been forfeited is conferred by the new Section 12-A the insertion of which is provided for by Section 3 of the Ordinance. Then occurs Section 4 of the Ordinance round which a considerable portion of the arguments centred. It may be set out in extenso.
4. After Section 16 of the said Act, the following section shall be inserted, namely:
16-A. Nothing in Section 491, Sub-sections (1) and (2), of the Code of Criminal Procedure, 1898, shall apply to any person detained, or deemed to have been detained, under Section 2 of this Act by the Provincial Government or any officer or authority authorized by them in that behalf.
71. The validity of the Ordinance generally and of Section 4 in particular was disputed by the several learned Counsel who appeared for the applicants. It was said that the whole of the Ordinance is invalid as the requirements of Section 88 (1) of the Government of India Act, 1935, were not and could not have been satisfied. It may at once be stated that there is no proof whatever that the Governor did not obtain the instructions of the Governor-General as recited in the preamble to the Ordinance or that the Governor did not receive or act upon the advice of his ministers, in promulgating it, the argument being that the power conferred on the Governor by Section 88 (1) of the Government of India Act, 1935, is a power exercisable by him not in his individual judgment but only on the advice of his ministers. The argument as to invalidity went no farther than a suggestion, which was much emphasised, that, having regard to the close proximity in time between the prorogation of the Legislature and the promulgation of the Ordinance there is very little likelihood of the Provincial Cabinet or the concerned minister having tendered the necessary advice to the Governor and of the Governor having obtained the requisite instructions from the Governor-General.
72. Section 88 (1) clearly requires that the Legislature should not be in session when an Ordinance is promulgated. It is not denied that this requirement is satisfied as the Legislature had been prorogued the previous day and was therefore not in session on the 25th of May. Section 88 (1) further requires that the Governor should be satisfied that circumstances exist which render it necessary for him to take immediate action. Assuming that the Governor is for this purpose to act on the advice of his ministers, the satisfaction contemplated by Section 88 (1) would in that view be, in effect the satisfaction of the Governor on such advice.. Satisfaction in accordance with the wording of Section 88 (1) is recited in the preamble, and there is no proof to the contrary. Under Section 51(4) of the Government of India Act:
the question whether any and, if so, what advice was tendered by ministers to the Governor shall not be inquired into in any court.
This excludes all discussion of an allegation that no advice was or could have been tendered, but even assuming otherwise there is nothing offered by the applicants by way of proof of such an assertion.
73. The gravamen of the charge finally reduces itself to an attack on the propriety of issuing an order of prorogation on the 24th. If the Legislature was in session, on the 24th, it was pointedly asked why was not the Legislature immediately summoned to consider the necessity or desirability to legislate in the terms of what has now been promulgated in the shape of an Ordinance It was emphasised that the prorogation was just on the eve of the promulgation of the Ordinance and was made, it was suggested, with a view to avoid a discussion by the Legislature, at any rate, at that stage, of the somewhat drastic provisions of the intended legislation.
74. The propriety or otherwise, however, of the order of prorogation is not a matter for consideration by this Court. Assuming its impropriety, that would in no way, furnish a legal ground for invalidating the Ordinance that has been issued.
75. Presuming, as we must, the correctness of the recitals in the preamble to the Ordinance and in the absence of any admissible evidence that any of those recitals is inaccurate, we must hold that the conditions laid down in Section 88 (1) of the Government of India Act are satisfied and that the attack on the validity of the Ordinance on this ground falls.
76. The next contention was that Section 4 of the Ordinance is, in any event, invalid. It was said that Section 4 deals with a matter not enumerated in any of the Lists in the Seventh Schedule to the Government of India Act and that consequently there can be no valid legislation in respect of it by the Provincial Legislature or by the Governor acting in the place of the Provincial Legislature under Section 88 in the absence of a public notification by the Governor-General empowering the Provincial Legislature to enact a law with respect to it as required by Section 104 (1) of the Government of India Act. This argument necessarily invites a discussion as to whether the subject-matter of Section 4 of the Ordinance falls outside all the items in the several Legislative Lists in the Seventh Schedule. On behalf of the Grown it was argued that the matter would fall under item 2 read with item 1 of the Provincial Legislative List. (List II). Item 2 is:
Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List.
and item 1 includes inter alia ' public order' and preventive detention for reasons connected with the maintenance of public order; and ' persons subjected to such detention.' In any event it was said that Section 4 of the Ordinance deals with a matter which would fall under item 2 of Part I of the Concurrent Legislative List (List III) which is in the following terms:
Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act.
On behalf of the detenue it was argued that Section 491, Criminal Procedure Code is not, strictly speaking, concerned with a purely procedural matter, that it confers on the other hand a substantive and valuable right on the citizen, and that item 2 of the Concurrent Legislative List must be read so as to include only those provisions in the Code of Criminal Procedure which can be strictly regarded as pertaining to procedure. I am unable to accept this argument. As a matter of statutory construction the word ' include ' with all its grammatical variations has always been read as widening the scope of the definition so as to bring in what would not otherwise be comprised in it. Delivering the judgment of the Judicial Committee in Dilworth v. Commissioner of Stamps (1899) A.C. 99 Lord Watson said:
The word ' include ' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.
My construction of item 2 of List III receives support from the decision of the Patna High Court in Vishwanath v. Sri Mahout I.L.R. (1938) Pat. 714 where it was held referring to item 4 of the same List which is in similar terms that
all matters whether relating to procedure or not included in the Code of Civil Procedure on the date of the passing of the Government of India Act are concurrent legislative subjects,
and that the words and all matters, etc.' enlarge the subjects of concurrent legislation to the extent stated above. The decision in Rajah Bejoy Singh v. Surendra (1928) 55 M.L.J. 456 : L.R. 55 IndAp 320 : I.L.R. 56 Cal. 1 (P.C) cited on behalf of the detenus in which it was held that the expression in a patni lease ' including all interests therein ' does not increase the corpus of the subject of the lease, is in my opinion distinguishable. Drawing attention to the essential characteristic of a lease, namely, that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear which characteristic was pointed out in their earlier decision in Shashi Bhushan v. Jyoti Praskad (1916) 32 M.L.J. 245 : L.R. 441. A. 46 : I.L.R. 44 Cal. 585 (P.C.) the Privy Council held that the corpus was sufficiently ascertained as the surface of the land and did not include the sub-soil and the lessee had therefore no right to use the lands leased for making bricks. The words. ' including all interests therein ' only carried with the corpus all rights appurtenant thereto such as rights of passage, water or the like. The decision of the Privy Council is also based on a consideration of all the terms of the lease and on the absence of anything to suggest that the land included therein was to be put to any use other than that to which the zemindari lands were subject at the time of the lease.
77. In my opinion the words ' all matters included in the Code of Criminal Procedure ' emphasise that any provision contained in that Code can be varied or repealed by either the Dominion or the Provincial Legislature subject of course to the statutory conditions and procedure laid down in regard to legislation on matters falling within the Concurrent Legislative List. It would indeed be odd if the Parliament altogether overlooked Section 491, notwithstanding that a reference is made to all matters included in the Code of Criminal Procedure in item 2 of List III and if it made no provision for the matter comprised in that section in any of the Lists. But this is what the argument on behalf of the applicants involves. As held by the Federal Court in Manikkasundara v. R.S. Nayudu (1946) 2 M.L.J. 17 : 9 F.L.J. 57:
When there is a choice between two possible constructions of an entry or entries, one of which will result in legislative power being conferred by some entry or entries in the lists and the other in a finding of no existing power, but if legislation is required that recourse must be had to Section 104, the first construction should on principles analogous to those applied to the Canadian Constitution be preferred.
It is unnecessary to decide whether item 2 of the Concurrent Legislative List should be read along with items 1 and 2 of the Provincial Legislative List so as to allot Section 491 to the former sphere or whether it should be held to fall within the scope of item 2 of the Provincial Legislative List read with item 1, there being to that extent a subtraction out of item 2 of the Concurrent Legislative List. As observed by the Privy Council in Profulla Kumar v. The Bank of Commerce, Ltd. (1947) 2 M.L.J. 6.:
it is not possible to make so clean a cut between the powers of the various Legislatures : they are bound to overlap from time to time.
For the purpose of the present contention it is sufficient to hold that the matter falls under either the one or the other of the items referred to above. In this view the argument based on Section 104(1) must be rejected.
78. Alternatively, it was argued that Section 4 is invalid as it is a provision of a Provincial law which is repugnant to a provision of an existing law (namely, Section 491, Criminal Procedure Code) with respect to one of the matters enumerated in the Concurrent Legislative List, and that consequently the Provincial law is to the extent of the repugnancy void. Reliance was placed for this argument on Sub-section (1) of Section 107. It was part of the argument that Section 107 (1) is absolute, and that Section 4 of the Ordinance would not fall under Section 107(2) which provides for the enactment of a Provincial law so as to prevail over an existing Jaw with respect to one of the matters enumerated in the Concurrent Legislative List. The material portions of Section 107(1) and (2) may be usefully quoted:
107. (1) If any provision of a Provincial law is repugnant ... to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List, then subject to the provisions of this section...the existing law shall prevail, and the Provincial law shall, to the extent of the repugnancy, be void.
(2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant....to an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General has received the assent of the Governor-General the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter.
Learned counsel appearing for the detenus strenuously contended that there is a difference between the language of Section 107, Sub-section (1) and the language of Section 107, Sub-section (2). For the purpose of the question under consideration I am unable to see any difference. The subject common to both the Sub-sections is the repugnancy between a provision of a Provincial law and a provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List. Sub-section (1) lays down generally that where there is such a repugnancy the existing law shall prevail and the Provincial law shall be void. This however is statedly 'subject to the provisions of this section.' This would bring in Sub-section (2) which provides that if the procedure therein laid is followed, the Provincial law shall prevail over the existing law in the Province concerned, and it is then stated that even in such a case the Dominion Legislature may at any time thereafter enact further legislation with respect to the same matter. The argument that Section 107(1) is absolute is, I think, answered by the language of the Sub-section itself which provides that it operated ' subject to the provisions of this section,' the only relevant provision for this purpose being Sub-section (2). On my reading of Section 107 the present case falls under Section 107(2) and the procedure laid down in that Sub-section or rather what is equivalent to it under Section 88 (1), namely, the obtaining of instructions from the Governor-General having been satisfied, Section 4 of the Ordinance would prevail over Section 491, Criminal Procedure Code and its validity cannot be questioned on this ground even If Section 4 is assumed to relate to a matter in the Concurrent Legislative List. Whether and how far Section 4 is retrospective and whether and how far it affects the jurisdiction of the High Court in dealing with applications under Section 491 are quite different matters which I shall in due course deal with.
79. The point was also raised that Section 4 of the Ordinance is invalid by reason of Clause 44 of the Letters Patent of the High Court. By a reference to the wording of that clause it was said that the provisions of the Letters Patent are subject only to the ' Legislative powers of the Governor-General in Legislative Council.' Section 223 of the Government of India Act, however, 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 establishment of the Dominion and that they should further be subject to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by the Constitution Act. That the High Court has no power to issue a prerogative writ of Habeas Corpus as known to English Law in matters contemplated by Section 491, Criminal Procedure Code, and that it had no such power immediately before the establishment of the Dominion cannot possibly be disputed in view of the decision of the Full Bench in District Magistrate, Trivandrum v. Mammen Mapillai : AIR1939Mad120 which was affirmed by the Privy Council in Mdthen v. The District Magistrate of Trivandrum (1939) 2 M.L.J. 406 : L.R. 66 IndAp 222 : I.L.R. 1939 Mad. 744 That being so, the question again comes back to what has already been discussed, namely, whether Section 491, Criminal Procedure Code, has been validly varied or affected by the Ordinance in accordance with the provisions of the Government of India Act, 1935.
80. An argument based on Section 561-A of the Criminal Procedure Code though it bears not on the validity but on the effect of Section 4 of the Ordinance or Section 16-A of the Act may conveniently be referred to here, as it is in my opinion answered by the decision in District Magistrate, Trivandrum v. Mammen Mapillai : AIR1939Mad120 to which reference has just been made. There was no claim in that case that the High Court had at any time any inherent power to deal with cases of illegal or improper detention other than the power to issue a writ of Habeas Corpus or the statutory power under Section 491. No case has ever asserted the existence of any such power. Moreover, it is clear law that where a power is given expressly there is no scope for the exercise of an inherent power.
81. The question has next arisen as to whether Section 16-A would apply to the applications before us which for this purpose would fall into two groups, namely, those which were filed before and were pending on 25th May, 1948, when Section 16-A came, in to operation and those which were filed subsequent to 25th May, 1948, though in respect of orders of detention which had been passed prior to that date.
82. The argument on behalf of the Crown goes so far as to claim that the jurisdiction under Section 491 ceases to be exercisable on the promulgation of the Ordinance and that this is indicated by the sweeping reference to ' any person detained or deemed to have been detained ' under Section 2 of the Act.
83. There was a learned discussion as to how in America a person can be deprived of his liberty only by judicial process by reason of the interpretation placed by the American Courts on what are known as the Fifth and Fourteenth Amendments, and how the constitutional position in India is different. It was pointed out that according to Dicey the rule of British jurisprudence that no member of the Executive can interfere with the liberty of a British subject except on the condition that he can support the legality of his action before a Court of justice is still a principle of ' private law ' and is not a part of the Constitution. But as has been pointed out by the Federal Court in Baburao v. King-Emperor (1944) 1 M.L.J. 305 : 6 F.L.J. 187 : I.L.R. 1944 Nag. 300 (F.C.). all this does not mean that the well-established principle of British jurisprudence as to the sacredness of personal freedom is not part of the law of British India.
84. Though at one stage the learned Advocate-General referred to the use of the word ' may ' in Section 491 and to the discretionary nature of the jurisdiction of the High Court under that section, he did not finally maintain that the right of a citizen to prosecute his application under Section 491 is not a substantive right. It is certainly more and not less important than a right of appeal in respect of a pending suit, which has been held not to be a mere matter of procedure and which can be taken away retrospectively like other vested rights only by the express language or the necessary intendment of an act of the Legislature. (See Sadar Ali v. Dalimuddin I.L.R. (1928) Cal. 512 As stated in Maxwell on Interpretation of Statutes, 9th edition, page 222:
No rule of construction is more firmly established than this that retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is capable of either interpretation it must be construed as prospective only.
85. I shall deal first with applications filed after 25th May, 1948. The reference in Section 16-A to persons deemed to have been detained under the Act, by which expression are meant persons detained under Section 2 of the Madras Maintenance of Public Order Ordinance, 1947, which preceded Madras Act I of 1947, seems to me to indicate that Section 16-A is meant to apply to orders of detention passed before 25th May, 1948 and that it was not meant only to apply to detentions made after that date. It was argued by the learned Counsel who appeared in this group of applications that by virtue of the very orders of detention their clients obtained a right to apply under Section 491 which right they characterised as a vested right. The argument was sought to be supported by a reference to Section 8, Clauses (d) and (f) of the Madras General Clauses Act I of 1891 which provides that:
where any act to which this Chapter applies repeals any other enactment, then the repeal shall not affect any right accrued .... under any enactment so repealed; or affect any ... remedy in respect of any such right....
This is, however, answered by the decision of the Privy Council in Abbott v. The Minister of Lands (1895) A.C. 425 where it was held that a mere right existing at the date of a repealing statute to take advantage of the provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause in an interpretation statute. In any event, as I have already indicated, there would be no content whatever for the words ' persons deemed to have been detained under the Act', if Section 16-A is to operate only in regard to persons detained after 25th May, 1948. The legitimate inference would, therefore, be that persons whether detained under the Act before 25th May, 1948, or deemed to have been detained under the Act by virtue of orders passed before the Act of 1947 under the Ordinance then in force would be affected by Section 16-A if they made no applications before the promulgation of the Ordinance.
86. The next question is, would pending applications also be affected? The language of Section 16-A is susceptible of two constructions: (1) The provisions of Section 491, Sub-sections (1) and (2) shall not apply to the applications filed after 25th May, 1948; and (2) the applications filed even before 25th May, 1948, shall be dealt with as if Section 491, Sub-sections 1 and 2 do not apply to them. There is considerable force in the argument on behalf of the detenus pointing out the sharp contrast between the language of Section 16-A and the language of Section 16 (2) which in terms provides that proceedings pending at the commencement of the Act questioning the validity of orders made under the Madras Maintenance of Public Order Ordinance, 1947, shall not be continued and shall be discharged. On the principle laid down in The Colonial Sugar Refining Company, Ltd. v. Irving I.L.R. (1905) A.C. 369 and Sadar Ali v. Dalimuddin 56 Cal. 512 (S.B.) and applying the well-established rule of interpretation that:
a statute is not to be construed to have a greater retrospective operation than its language renders necessary.
I hold that Section 4 of the Ordinance and Section 16-A of the Act must be so read, as to leave applications filed before 25th May, 1948, and pending on that date altogether untouched.
87. It was claimed that applications despatched by the detenus before 25th May, 1948, but which could be filed into Court only after that date by reason of the delay occasioned by the exigencies of communication and transmission through official channels should be regarded as standing on the same footing as applications presented before 25th May, 1948. But if as we have held, a right accrues only on the filing of an application, the material date would be the, date of filing and not any earlier date when preparations had been or were being made for such filing.
88. We have heard elaborate arguments in regard to the nature and extent of the jurisdiction of the High Court and of the Superior Courts generally in dealing with applications challenging the legality and propriety of detentions under statutes similar to Madras Act I of 1947. One preliminary observation must here be made.
The challenge in every one of the cases involved in the batch of applications before us is a challenge against the order of detention itself and not that even if the order was valid at its inception the continuance of the detention has become illegal or improper in view of what happened subsequently or by reason of what the Government subsequently did or failed to do. I say this merely to guard myself against being understood as having- decided anything more than what is strictly required by the applications under consideration.
89. The broad division of the applications into two categories, namely, (1) those which were filed before 25th May, 1948, and (2) those which were filed thereafter has, as already been indicated, to be borne in mind in determining whether there is any and if so what difference in our jurisdiction in dealing with each of the two groups. If Section 4 of the Ordinance is not to be construed so as to render Section 16-A of the Act applicable to pending applications, it follows that these applications have to be dealt with in the light only of Section 16(1) of the Act but not in the light of Section 16-A. Applications filed after 25th May, 1948, must, by reason of our judgment that Section 4 of the Ordinance makes Section 16-A applicable to them, be considered on the footing that they are governed both by Section 16(1) and Section 16-A of the Act.
90. The argument of the several learned Counsel for the applicants regarding the latter batch of applications is that Section 16-A of the Act does not repeal Section 491, Criminal Procedure Code and should not be read as negativing the jurisdiction of the High Court altogether in regard to orders of detention which purport to have been made under the Act. The argument of the Advocate-General on the other hand is, in effect, that once an order expressed to have been passed under the Act is produced, Section 491 is completely excluded or in other words we must proceed on the footing that there is no Section 491.
91. The question falls to be decided in the light of certain decisions of the Federal Court to which I shall immediately refer. In The King-Emperor v. Benoari Lal Sharma and Ors (1943) 2 M.L.J. 207 : 1943 F.C.R. 96 : 6 F.L.T. 79 (F.C.) the Federal Court had to consider the effect of Section 26 of the Special Criminal Courts Ordinance (II of 1942) which provided, inter alia, that no Court is to have authority to revise any order or sentence of a Court constituted under the Ordinance or to transfer any case from such Court or to make any order under Section 491. The language of the section was undoubtedly wide. Referring to the Ordinance generally and to Section 26 in particular, Varadachariar, Officiating C.J., described their true effect in the following passage which seems to be apposite:
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. Even the provision in Section 26 excluding the powers of revision, habeas corpu, transfer, etc., is governed by words referring to the acts of or proceedings in the Special Courts.
The judgment of Varadachariar, O.C.J., which was concurred in by Zafrullah Khan, J., was reversed by the Privy Council in The King-Emperor v. Benoari Lal Sharma and Ors (1945) 1 M.L.J. 76 : L.R. 72 IndAp 57 : 1945 F.C.R. 161 : 1945 F.L.J. 1 (P.C.) the Privy Council agreeing with the views of Rowland, J., of the Federal Court and of Derbyshire, C.J. and Khundkar, J., of the Calcutta High Court in regard to certain questions which have no bearing on the point now under discussion; there is however no disagreement expressed by the Privy Council with what Varadachariar, O.C.J. and Zafrullah Khan, J., stated on this particular aspect, namely, the real scope and bearing of the provisions of the Ordinance on the jurisdiction and powers of the High Court.
92. In Basantha Chandra Ghose v. The King-Emperor (1944) 2 M.L.J. 167 :I.L.R. 23 Pat. 678 : 7 F.L.J. 203 (F.C.) Sir Patrick Spens, C.J., who delivered the judgment of the Federal Court first quoted the language of Section 10(1) of the Restriction and Detention Ordinance 3 of 1944 which was in the following words:
No order made under this Ordinance and no order having effect by virtue of Section 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order under Section 491 of the Code of Criminal Procedure (V of (898), in respect of any order made under or having effect under this Ordinance or in respect of any person subject to such an order.
He then pointed out that:
section 10 does not purport to repeal Section 491 of the Criminal Procedure Code
section 491 of the Criminal Procedure Code confers a certain power or jurisdiction on the High Court and all that Section 10 of the Ordinance does is to interdict the High Court from exercising that power or jurisdiction in a certain class of cases.
93. The position is stated in language which is even more explicit in a later judgment of the Federal Court in Basantha Chandra Ghose v. The King-Emperor (1945) 1 M.L.J. 365 : I.L.R. 24 Pat. 187 : 8 F.L.J. 40 (F.C.) where the same provision of law, namely, Section 10 of the Restriction and Detention Ordinance (III of 1944) had to be considered. How the jurisdiction of the High Court under Section 491 is retained notwithstanding the sweeping language of Section 1 o and the grounds on which that jurisdiction will be exercised were categorically-stated by Sir Patrick Spens, C.J., in a passage which may usefully be set out. The learned Chief Justice said:
It was no doubt open to the detenu to show that the order was not in fact made by the Governor of Bihar or that it was a fraudulent exercise of the power. The observations in Liversidge v. Anderson (1942) A.C. 206 and Greene v. Secretary of State for Home Affairs (1942) A.C. 284 establish that the burden of substantiating these pleas lies on the detenu. In the words of Viscount Maugham, once the order is proved or admitted it must be taken prima facie, that is, until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State (here, the Governor) was complied with ... The mere fact that the detenu challenges the factum or the bona fides of the order or the fact that the officers of Government must naturally be in possession of information on the subject cannot be said to be ' proof to the contrary ' so as to make it incumbent on the Government to adduce evidence in support of the order. In Greene's case (1942) A.C. 284 Goddard, L.J. (as he then was) referred to the possible ignorance of the detenu as to the reasons for his internment and said that that would not shift the burden of proof because ' it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe ' that it was necessary to detain the person.
94. Some reliance was placed by the learned Advocate-General on the judgment of the Federal Court in Birpal Singh v. The King-Emperor (1946) 1 M.L.J. 322 : 1946 F.L.J. 1 : 1946 F.C.R. 21 (F.C.) as supporting his contention that the jurisdiction under Section 491 is altogether excluded. The Federal Court was there dealing with an application under Section 491 by a person who was detained under the Bengal State Prisoners Regulation (III of 1818) which is one of the Regulations referred to in Sub-section 3 of Section 491. In rejecting the application the Federal Court made certain observations which may, at first sight, seem to go so far as to hold that if the Government claims to have passed an order under the provisions of that Regulation there is no more jurisdiction in the High Court under Section 491 to consider any matter arising out of or in relation to the detention. If the judgment of the Federal Court is to be so read it may seem to be in conflict with the view expressed by the Federal Court in Basanta Chandra Chase's case (1945) 1 M.L.J. 365 : I.L.R. 24 Pat. 187 : 8 F.L.J. 40 (F.C.) On a close reading however of the judgment in Birpal Singh v. The King-Emperor (1946) 1 M.L.J. 322 : 1946 F.L.J. 1 : 1946 F.C.R. 21 (F.C.), popularly known as the Bhajji case, I think the Federal Court did not go to the extent of denying the jurisdiction of the High Court in those respects in which it had affirmed such jurisdiction in the case of Basanta Chandra Chose (1945) 1 M.L.J. 365 : I.L.R. 24 Pat. 187 : 8 F.L.J. 40 (F.C.) Particular reference must be made to the limited scope of the contentions raised by Mr. Gauba, counsel for the detenu in the Bhajji case. At page 28 of the Report the Federal Court sets out as (a), (b), (c) the points which he argued. Of these, point (a) alone is material for the present discussion and it is to the effect that the detenu
was still de jure the ruler of Bhajji State and as such not within the category of persons in respect of whom any warrant of commitment could be issued under the Bengal State Prsoners Regulation (III of 1818).
After setting out points (a), (b) and (c) the Federal Court observed that:
At one stage Mr. Gauba also urged that the form of the warrant of the nth April, 1941, did not on the face of it sufficiently indicate that it was a warrant issued by the Central Government as required by Section 7-A of the Regulation III, and that positive evidence that the matter had been considered and orders given for its issue by the appropriate officials was required before a Court could hold the warrant a valid warrant under Regulation III.
There was evidently no evidence offered on behalf of the detenu to substantiate the argument of Mr. Gauba in this respect and as the burden of proof in regard to allegations of that description undoubtedly lies on the challenger there need be no surprise if the Federal Court did not say anything further in their judgment in respect of this argument. From the manner in which the Federal Court refers to this particular argument it looks as if the counsel made a passing reference to it at one stage of his argument without emphasising it. As to what is described as point (a), the Federal Court observed that this point was legitimately open to the detenu and proceeded to deal with it on its merits.
95. The observations of the Federal Court to which pointed attention is drawn on behalf of the Crown are the following:
Once the Court is satisfied that a person is being detained under Regulation III there is no jurisdiction under Section 491 which the Court can exercise in the matter.
In our judgment the material question in this case is : Is the appellant a person detained under Regulation III If he is, his application must fail.
96. In the light of what I have already said I am not inclined to regard these observations as excluding the preliminary jurisdiction of the High Court to decide, if the contention should be raised, whether the order was not in fact made by the concerned officer or authority, and did not represent his or its belief, and secondly, whether the order constituted a fraudulent exercise of the power. These questions are concerned with ascertaining whether the order under challenge is really one made by the concerned individual or body of individuals under the statutory power conferred on him or them. They are in a sense preliminary or collateral questions and seek to decide whether the order could at all be said to be one under the relevant statute. If those questions are decided adversely to the detenu we reach the position that the order is one which can be said to have been passed by the Government in the exercise of its statutory power. After that it may not any longer be open to the person concerned to show that the detention is either illegal or improper. After making the observations which I have quoted above, the Federal Court goes on to state that:
something more than allegations that a person is being illegally or improperly detained under Regulation III is necessary before the Court can get over the bar to jurisdiction under the section imposed by Sub-section (3)--, if on the facts of the case it is clear that a person is being detained under Regulation III, even though a Court might think if it investigated those facts, it might find that the detention was illegal or improper, still the Court cannot in our judgment interfere under Section 491.
In my opinion in speaking of a person detained under Regulation III the Federal Court was contemplating a person who has been detained by an officer duly empowered in that behalf by an order which is not a fraudulent exercise of power and which is based on the satisfaction of the officer that its issue is necessary or expedient.
97. The conclusion which I have indicated above receives considerable support from the decisions of the Federal Court in King-Emperor v. Sibnath Banerji and Ors (1943) 2 M.L.J. 468 : 1943 F.L.J. 151 : 1944 F.C.R. 1 and of the Privy Council in Sibnath Banerji's case (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.). The detentions in that case were under Rule 26 of the rules framed under the Defence of India Act which provided that
the Central Government or the Provincial Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejndicial to the defence of British India it is necessary so to do may make an order .... (6) directing that he be detained.
All the Judges of the Federal Court were agreed that it was a condition precedent to the valid exercise of the power of detention conferred by Rule 26 that the Provincial Government should have applied its mind and been satisfied that such detention was necessary for preventing the person proceeded against from acting in a manner prejudicial to the matters mentioned therein and that therefore orders of detention made in pursuance of a ' routine order ' that if the Police recommended detention of any person under Rule 26 such person may be detained were invalid. All the Judges were again agreed in holding that a mere recital in the order that the Provincial Government is satisfied to the effect stated in Rule 26 cannot prevent the Court from enquiring into its accuracy and if there is sufficient material, from coming to the conclusion that the recital is inaccurate though the presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence to controvert it. There is a presumption attaching to an order regular on the face of it that it has been properly made; but this is a rebuttable presumption. Relying on Liversidge v. Anderson (1942) A.C. 206 and Greene v. Secretary of State for Home Affairs (1942) A.C. 284 the Federal Court held that the Court could enquire whether there was not any consideration by or any satisfaction on the part, of any properly authorised person before the orders for detention were made.
98. The Judgment of the Judicial Committee in Sibnath Banerji's case (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.) approves of the judgment of the Federal Court in the above respect. It was maintained for the Crown before the Privy Council:
that the orders being on their face regular and in conformity with the language of the rule, it was not open to the Court to investigate their validity any further.
Their Lordships quote Section 16 (1) of the Defence of India Act which it would appear, was not brought before the Federal Court, and which provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court, and go on to observe that the said provision:
assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not made in conformity with the power conferred, heavily though the burden of proof may lie on the challenger.
Their Lordships conclude that:
accordingly, the contention of the Crown that the Court has no jurisdiction to investigate the validity of the order fails.
99. Agreeing with the unanimous conclusion of the Federal Court that the orders of detention in the case of two of the respondents were proved to have been issued on the basis of police reports without any examination of the available materia by the Provincial Government or in other words that there was substitution of the recommendation by the Police in the place of the satisfaction of the Governor prescribed by Rule 26, their Lordships set aside those orders.
100. Section 16 (1) of the Defence of India Act is almost identical with Section 16(1) of Madras Act I of 1947, but the Defence of India Act contained no provision corresponding to Section 16-A of the Madras Act, and there was no specific reference to the jurisdiction of the High Court under Section 491. Section 16-A however makes, in my opinion, no real difference. The jurisdiction of the High Court is in no way limited or restricted by Section 16-A beyond what was done by Section 16 (1), so that even in regard to applications filed after 25th May, 1948, the scope of the enquiry by this Court is no narrower than the scope of the enquiry in applications filed before that date.
101.The only point remaining to be considered is as to the grounds on which the orders of detention are open to challenge. Most valuable guidance is afforded on this subject by three well-known decisions of the House of Lords in Halliday's case (1917) A.C. 260 Liversidge's case (1942) AC 206 and Greene's case (1942) A.C. 284 The first of these was concerned with regulation 14-B of the Defence of the Realm (Consolidation) Regulations, 1914, issued under the Defence of the Realm (Consolidation) Act of 1914, Section 1, Sub-section (1). The regulation empowered the Secretary of State to order the internment of any person:
of hostile origin or association where on the recommendation of a competent naval or military authority it appears expedient for securing the public safety or the defence of the realm.
The other two decisions arose out of orders of detention under the Defence (General) Regulations, regulation 18-B, issued under the Emergency Powers (Defence) Act, 1939, Section 1, Sub-section 1, para. (1) of the regulation was in the following terms:
If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.
By para. (8):
Any person detained in pursuance of this regulation shall be deemed to be in lawful custody.
102. Notwithstanding the differences in the enactments of 1914 and 1939 all the three decisions embody certain common statements of principle.
103. The decisions of the Privy Council and the Federal Court to which I have had occasion to refer are in great part based upon these three decisions and interpret what is therein stated. There is no need to quote from any of these decisions at any length and it will suffice to set out briefly the grounds which have been recognised in them as grounds on which a detenu can impeach the validity of the order of detention against him.
(1) At the very outset lies the authenticity of the order which it is open to the detenu to disprove, if he can successfully do so. It is sufficient to refer in this connection to the speeches of Lord Macmillan and Lord Wright in Greene's case (1942) A.C. 284 where they refer to authenticity as a fact to be enquired into if impugned.
Section 16, Sub-section (3) of Madras Act I of 1947 provides that where any order purports to have been made and signed by any authority in exercise of any power conferred by or under the Act, a Court shall presume that such order was so made by such authority, but the presumption is obviously one which may be rebutted.
(2) It is settled by the decision of the Privy Council in Sibnath Banerji's case (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.) that the detenu may show if he can that the officer or authority purporting to issue the order of detention did not apply his mind to the necessity or expediency of issuing such an order and was not and could not have been satisfied in regard thereto as required by the statute. Sibnath Banerji's case (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.) affords a concrete illustration of how this may happen.
(3) I am clear though the decisions do not directly refer to it that it will be open to a detenu to prove that the officer issuing the order is not legally empowered to do so.
(4) The detenu may also show that he is not the person intended : or in other words that it is a case of mistaken identity-See per Lord Wright in Liversidge's case (1942) AC 206 and in Greene's case (1942) A.C. 284.
(5) There is a considerable body of judicial opinion that the order should have been made in good faith by the officer or authority concerned, the bona fides of the order being presumed. There are several references to this in Liversidge's case, Greene's case and in Sibnath Banerji's case (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.) In Halliday's case (1917) A.C. 260 Lord Wrenbury states that the statutory authority must be exercised honestly. It may be difficult for the detenu to establish the absence of bona fides, but it cannot be doubted that it is a ground of challenge which is open to him where he can, for instance, show that the order was not issued in the public interest but was actuated by personal malice or spite or is the result of political animosity.
(6) Negatively it can be said that the sufficiency of the available material or information to justify the order of detention and the question whether the officer concerned could be said to have reasonable grounds for the issue of the order in question are not matters which are within the cognizance of the Court. The satisfaction is the satisfaction of the officer. He is the sole Judge and once the conclusion is reached that he was satisfied the detenu cannot invite the Court to go behind it and dissect the reasons which weighed with the officer and find out for itself whether the order should have been issued. While the satisfaction of a properly constituted authority is a condition precedent to the issue of an order of detention, whether the circumstances called for the issue of such an order is a matter entirely for its consideration and nobody else's.
104. It may no doubt be asked as it was asked in the cases which went up to the House of Lords whether apart from the challenge in a superior court of law, on the grounds which have been detailed above there is any other effective safeguard against the encroachment by the executive on the liberty of the citizen. As said by Lord Wright in Liversidge's case (1942) A.C. 206:
the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.
Later on in his speech in that case, His Lordship refers to the provision that the detenu should be informed of the grounds of his detention and should be given such other particulars as may be considered sufficient to enable him to present his case, the constitution of an advisory committee with powers of recommendation and advice which however the Home Secretary may decline to follow and the requirement that the Home Secretary should report to the Parliament periodically as to the action he has taken on the advice of the committee as providing some check though not a very effective check on an unreasonable exercise of the power. The ultimate remedy however is to be sought only in public opinion, expressed through recognised democratic channels. To quote His Lordship's words once again:
If the sense of the country was outraged by the system or practice of making detention orders, or indeed, by any particular order, it could make itself sufficiently felt in the press and Parliament to put an end to any abuse and Parliament can always amend the regulations.
However that may be the jurisdiction of this Court established and defined by the above precedents remains unimpaired and unaffected by anything contained in the Madras Ordinance and these applications will have to be dealt with accordingly.
Govinda Menon, J.
105. As the facts and circumstances that led to the hearing of these petitions by this Full Bench have been exhaustively considered by my Lord the Chief Justice and my brother Govindarajachari, J., I need not set them out at any length : but in view of the importance of the constitutional subjects arising for decision and the elaborate arguments addressed to the Court, I may as well state shortly in my own words the reasons for my concurrence with the judgments now delivered.
106. As a preliminary step, the learned Counsel appearing for the various petitioners have contended that Madras Ordinance II of 1948 promulgated by H.E. the Governor of Madras on 25th May, 1948 is ultra vires; because the necessary prerequisites for the validity of such a law not only do not exist, but that the essential conditions precedent to the promulgation of such an ordinance have also not been complied with. Though no specific authority has been cited before the Court, it can be clearly assumed, that after the 15th August, 1947, the position of the Governor, vis-a-vis., the Council of Ministers, is that he acts entirely as a constitutional head. That means the Governor suo motu or of his own initiative wilt snot take any effective steps in the administration of the Province without Toeing previously advised by the Ministry-to that extent I do not feel that there can be any doubt and therefore the argument of the petitioners' Counsel is that under the circumstances that existed on the 25th May, 1948, as a matter of fact between the afternoon of 24th May, 1948, and the time of the promulgation of Ordinance II of 1948, the Governor was not advised by the ministers because there was hardly any time for the Council of Ministers to meet, discuss the matter and place their conclusion before the Governor. It is said that after the Legislature was prorogued by a notification (G.O. No. 1284-Public Elections) dated 24th May, 1948, and before the Ordinance was issued on the 25th May, 1948, not even 24 hours had elapsed which time would not have been sufficient for the Cabinet to meet and discuss the situation and advise the Governor to promulgate the Ordinance. It is next pointed out that even if during this short period of nearly 24 hours the Cabinet of the Madras Government conferred together and advised the Governor to promulgate the Ordinance there existed the physical impossibility of obtaining the instructions of the Governor-General during this short interval. There was also a feeble contention put forward without any attempt to substantiate it that during this relevant period His Excellency the Governor of Madras was not in the City of Madras but was residing in Ootacamund and that since the Council of Ministers did not meet in Ootacamund it would not have been possible for the Governor to have taken their advice. The argument outlined above was contested by the learned Advocate-General appearing for the Government of Madras on the ground that all these matters raise questions of fact, for the elucidation of which the petitioners have taken no steps by letting in evidence. He contends that the petitioners are prohibited from raising any question of fact on which evidence would have been necessary. It is further pointed out that under Section 114 of the Evidence Act there is a presumption of legality in favour of the Ordinance and the party who impugns its legal nature should prove his contention. The Ordinance itself recites that the Legislature of the Province is not in session, that the Governor is satisfied that immediate action is necessary for the purpose of amending the Madras Maintenance of Public Order Act of 1947 and that the instructions of the Governor-General have been obtained in pursuance of the proviso under Section 88 (1) of the Government of India Act, 1935. The correctness of these recitals cannot be questioned before this Court without any material to prove the contrary. Reference was also made to Sub-section 4 of Section 51 of the Government of India Act, 1935, for negativing the contention of the petitioners regarding the absence of advice by the Council of Ministers. According to this Sub-section the question whether any, and if so, what advice was tendered by the ministers to the Governor shall not be inquired into in any Court. Further the learned Advocate-General brought to our notice that though the Madras Legislature was in session till the 24th May, 1948, the last day on which the Madras Legislative Assembly met was on the 28th April, 1948, after which the Assembly was adjourned sine die. The last meeting of the Legislative Council prior to the promulgation of the Ordinance was on the 3rd May, 1948, after which this House was also adjourned sine die. Therefore on the day when the Legislature was prorogued there was no likelihood of any immediate meeting of either House of the Legislature. Before the Legislature could meet, intimation has to be sent to the members thereof to assemble on a specified date and ordinarily sometime must elapse between the summoning and the meeting of the Legislature. In addition, the Advocate-General argued that on a proper construction of Section 88 all that is necessary is that the Governor should be satisfied when he promulgated the Ordinance, that immediate action was necessary and that it is not essential that his decision must be eo instanti with the promulgation. It may be that he might have thought about it earlier, come to a decision, got the previous instructions from the Governor-General and promulgated the Ordinance at a time when he thought that immediate action was necessary.
107. It seems to me that the argument addressed by the Advocate-General on this aspect has to be accepted. The recital in the preamble to the Ordinance that the Governor was satisfied that immediate action was necessary and that the instructions of the Governor-General have been obtained must be accepted as correct especially since nothing has been shown to the contrary. I do not see how it can be successfully urged that the provisions of Section 88 of the Government of India Act have not been properly complied with. On the 25th May, 1948, the Legislature was not in session. The Ordinance recites that the Governor is satisfied that immediate action is necessary. I am not prepared to agree with the contentions of the petitioners regarding the impossibility of tendering advice to the Governor by the Council of Ministers or that no advice was tendered. Mere assertions in Court by the petitioners' Counsel cannot be taken as proof of those statements. Applying the following dictum of Viscount Maugham in Liversidge v. Sir John Anderson 1942 A.C. 206 it has to be concluded that in the absence of any evidence to the contrary all the necessary conditions contemplated by Section 88 of the Government of India Act, 1935, have been complied with.
In my opinion, the well known presumption Omnia esse rite eta applies to this order, and accordingly, assuming the order to be proved or admitted, it must be taken prima facie, that is until the contrary is proved, to have been properly made and the requisite as to the belief of the Secretary of State was complied with.
It cannot also be successfully contended that since the Ordinance does not make mention that the instructions of the Governor-General have not been obtained under Section 107 of the Government of India Act, the Ordinance in so far as it affects the existing law is, ultra vires. The fallacy in the line of reasoning is that Section 107 deals with an Act and since an Ordinance has all the essentials of an Act, it is unnecessary to make specific mention of Section 107 at all. In the face of express provisions contained in Sub-section 4 of Section 51 of the Constitution Act, we will not be justified in embarking upon an enquiry as to whether the Council of Ministers ever met at all or that any advice was tendered to the Governor even if they met, or what that advice was. If this Court is precluded from investigating whether any advice was tendered, it necessarily follows, that the contentions regarding the ultra vires nature of the Ordinance on the ground that no advice was tendered to the Governor cannot be accepted. It is also in my opinion not within the province of this Court to find out why the Legislature was prorogued or whether it could have been possible to have convened a meeting of the Houses of Legislature before the Ordinance was promulgated unless the petitioners can show that the whole action was fraudulent and constituted a fraud upon the power exercised. I need hardly add that no attempt was made to substantiate any of those allegations.
108. As an alternative, if not, the main argument, counsel for the petitioners have raised the important question that even if the entire Ordinance is intra vires, Clause 4 dealing with Section 16-A to be inserted in Madras Act I of 1947, by this Ordinance is repugnant to an existing law and so the latter law will have to prevail on account of Section 107 of the Government of India Act. Mr. N.S. Mani appearing for some of the petitioners contends that as the power of the Governor to promulgate an Ordinance in times of emergency is similar to that of the Provincial Legislature to pass an act, even if Section 16-A had already been enacted in Madras Act I of 1947, still, that would be repugnant to an existing law and hence void on account of the provisions of Section 107 of the Constitution Act. The argument is put this way. The object of the Ordinance being to amend the Madras Maintenance of Public Order Act of 1947, it was a matter which came directly with in entry No. 1, List II, Provincial Legislative List of 7th schedule of the Constitution Act and therefore the subject was one which was entirely within the jurisdiction of the Provincial Legislature. One has therefore to look at the pith and substance of the Ordinance about which there can be no doubt; and according to that test, the Ordinance by its preamble and object falls within entry No. 1 (List II). But Section 16-A does not at all concern with public tranquillity, but with a provision of the Criminal Procedure Code, Section 491. If that is so, then according to the petitioners, Sub-section (1) of Section 107 is applicable; in that a portion of a provincial law, viz., Section 16-A is repugnant to one of the matters enumerated in the Concurrent List (List No. 3) viz., entry No. 2 therein. Then it follows that the portion of the Provincial Law to that extent is repugnant and void. Two recent decisions of the Privy Council reported in P. K. Mukherjee v. The Bank of Commerce Limited, Khulna (1947) 2 M.L.J. 6 : L.R. 74 IndAp 23 : 1947 F.L.J. 34 (P.C.) as well as an earlier decision in Governor-General in Council v. The Province of Madras (1945) 1 M.L.J. 225 : L.R. 72 IndAp 91 : 1945 F.L.J. 69 (P.C.) were referred to. In those decisions, their Lordships of the Privy Council have held that the Lists in the 7th Schedule are bound to overlap from time to time, that it is not possible to make a clean cut between the powers of the various Legislatures and therefore the existence of a Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list the particular provision should be attributed and those which are merely incidental. They further point out that it is possible that the Provincial Legislature may invade into the realm of the Federal Legislature and the provisions of a particular statute may advance therefore into the Federal territory as to show that its true nature is not concerned with Provincial matters; but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is a Provincial subject or a Federal subject. If that question is determined, then the Act falls on one or other side of the line and can be seen as valid or invalid according to its true content. It was further pointed out that the pith and substance of the Bengal Money Lenders Act was money lending and therefore it was within the competence of the Provincial Legislature even if some portions of it related to Negotiable Instruments. Their Lordships held that the particular Act in question was intra vires the Provincial Legislature. The question was also raised whether such an Act could interfere with transactions in which promissory notes formed a part, in order to make such transactions valid only subject to the provisions of the Money Lenders Act. The Federal Court had already decided on this point that where the liability in the promissory note had passed into a liability under a decree, there was nothing to prevent the decree being affected by the provisions of the Money Lenders Act and hence in such cases it would be valid where judgments were sought to be reopened, but invalid where no judgment had been obtained and the borrower's liability was still secured by the promissory note. The Judicial Committee left the question open and did not pronounce any decision on the soundness of this view. The other decision cited Governor-General in Council v. The Province of Madras (1945) 1 M.L.J. 225 : L.R. 72 IndAp 91 : 1945 F.L.J. 69 (P.C.) also dealt with a similar topic and the conclusion of their Lordships is that it is not the name of the tax but its real nature, viz., its pith and substance, which must determine whether it can be levied by the Federal or Provincial Legislature. I am not able to see how these decisions support the argument of learned Counsel. If at all, the decision in P. K. Mukherjee v. The Bank of Commerce, Limited, Khulna (1947) 2 M.L.J. 6 : L.R. 74 IndAp 23 : 1947 F.L.J. 34 (P.C.) is, as I read it, against his contention. Their Lordships did not declare any portion of the Bengal Money Lenders Act repugnant to any existing law. The dictum of Sir Maurice Gwyer, C.J., in Subramania Chetty v. Muthuswami Goundan (1941) 1 M.L.J. (Supp.) 1 (F.C.) was quoted with approval in the judgment of the Judicial Committee to the effect that the rule which has been evolved is that the impugned Act has to be examined to ascertain its pith and substance for the purpose of determining whether it is legislation with respect to matters in this list or in that list. I am unable to find any clear pronouncement in any of these cases to the effect that, if the pith and substance of an enactment is within the purview of a Provincial List even though it trenches upon some incidental or ancillary matter in the Concurrent List, that part of the legislation which trenches upon the Concurrent List is invalid or inoperative. Moreover the conflict in these cases was between Lists I and II and not between Lists II and III. It has further to be observed that Sub-section (1) of Section 107 is subject to Sub-section (2) as is specifically mentioned therein. Sub-section (2) is in the nature of a proviso to Sub-section (1) and therefore one has to consider the matter by a joint application of both the Sub-sections together and not by applying the provisions of Sub-section (1) alone literally.
109. It is next contended that Sub-section (2) alone is to be taken into consideration and then also Section 16-A is repugnant and therefore void. The argument is that the entire Ordinance cannot be said to deal with a matter in the Concurrent List but only a portion of it, and therefore Section 107 (2) has no application. This argument overlooks the important circumstance that the word ' Provincial Law ' does not necessarily mean the whole of the Provincial Law. The learned Counsel admitted that a portion of the Provincial Law is also a Provincial Law within the meaning of Section 311 of the Constitution Act. If that is so, then Sub-section (2) is clearly applicable because if Section 16-A of the Ordinance relates to a matter in the Concurrent List, that is entry No. 2 and even though it is repugnant to the existing law still since the previous assent of the Governor-General has been obtained the Provincial Law shall prevail in the Province. Moreover the words used are ' with respect to.' These words do not necessarily mean that the entire Provincial Law should relate to one or more of the matters in the Concurrent List. If any portion of a Provincial Law relates to such a matter, then it is certainly with respect to one of the matters in the Concurrent List. It seems to me therefore that if Section 16-A dealt with a matter in the Concurrent List then Sub-section (2) of Section 107 is applicable and the law is valid so far as the Province is concerned.
110. At one stage of the argument, some of the learned Counsel while conceding that if the Governor or the Provincial Legislature had promulgated an Ordinance or passed an Act as the case may be, solely confined to the matter contained in Section 16-A, then, such Ordinance or Act will be valid, urged that it is the admixture of a Provincial subject with a Concurrent List subject that made the impugned Ordinance inoperative and void. This defect, if at all is merely one of form and not substance.
111. The learned Advocate-General contended that the subject-matter of Section 16-A is one coming within the ambit of entry No. 2 in List II, viz., jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in List II. Section 491 being one of the provisions of the Code of Criminal Procedure dealing with the jurisdiction and powers of the High Court is a matter subject to the legislative jurisdiction of the Province. We have therefore to ascertain under what basis and authority, the writs in question are to be issued, if such an action is at all called for. Mr. Asker Ali one of the Counsel for certain petitioners went to the extreme length of urging that under Section 561-A of the Criminal Procedure Code, this Court is vested with the jurisdiction and power to issue the writ. It is unnecessary to dilate on this contention, because there has been a long catena of cases of this and other Courts that Section 561-A does not enlarge the powers of a Criminal Court just as Section 151, Civil Procedure Code does not add to the powers of a Civil Court. The question has to be viewed in the light of other relevant provisions of the Criminal Procedure Code.
112. It seems to be that the act of issuing a writ is the exercise of a power of jurisdiction and not the strict following of a specific procedure and I would uphold the contention of the Advocate-General to that extent.
113. The applicants have invoked the jurisdiction of this Court to issue directions in the nature of Habeas Corpus only under Section 491 of Criminal Procedure Code. It cannot be disputed, therefore, that the power of this Court to issue the writ is to be ascertained from the jurisdiction vested under Section 491, Criminal Procedure Code. What enables the High Court to take action, where a person is illegally or improperly detained within the limits of the appellate jurisdiction of the High Court, is the direct result of the jurisdiction and power conferred by Section 491. Such being the case, in my opinion, such power or jurisdiction is a matter about which the Provincial Legislature has power to legislate. The old Supreme Court, on which had been conferred the right to issue the prerogative writ of Habeas Corpus under the common Law, was the predecessor of the High Court and the High Court inherited those powers when the Supreme Court was abolished. But this common law right was made a statutory one, by the provisions of the Criminal Procedure Code and the power of the High Court to issue the writ in a manner other than what is specified in Section 491 was taken away (the Criminal Procedure Code of 1872 and 1875). The District Magistrate, Trivandrum v. Mammen Mappillai : AIR1939Mad120 overruled two earlier decisions in Kochunni Elaya Nair, In re : AIR1922Mad215 and Govinda Nair, In re : (1922)43MLJ396 which held that the High Court had powers, apart from the provisions of the Criminal Procedure Code. This decision of the High Court was confirmed by the Judicial Committee in Matthen v. District Magistrate, Trivandrum (1939) 2 M.L.J. 406 : L.R. 66 IndAp 222 : I.L.R. 1939 Mad. 744 (P.C.) Under these circumstances the Counsel appearing for the petitioners had, perforce to admit that they could not invoke any power other than what is contained in Section 491, Criminal Procedure Code. The result is, that the power to issue the writ comes within the meaning of the terms 'jurisdiction and power of the High Court ' in entry No. 2 in the Provincial List and it was within the competence of the Governor to promulgate the Ordinance taking away such a power.
114. It is next contended that the right to issue the writ is contained in entry No. 2 of the Concurrent List, namely Criminal Procedure Code including all the matters included in the Criminal Procedure Code. I am prepared to accept the contention to this extent, that the two entries namely entry No. 2 is in the Concurrent List and No. 2 in the Provincial List overlap each other to some extent and Section 491 may also come within the expression
including all matters included in the Code of Criminal Procedure
but does such overlapping take away the right of the Provincial Legislature to deal with the subject-matter under consideration In Stewart v. Brojendra Kishore : AIR1939Cal628 a Bench of the Calcutta High Court had to deal with entry No. 4 in the Concurrent List and No. 2 in the Provincial List; and the learned Judges have observed that merely because the Civil Procedure Code contains certain provisions relating to the jurisdiction and powers of Courts, it does not follow that Civil Procedure in the Concurrent Legislative List includes everything relating to the jurisdiction and powers of Courts. So to hold would be completely to wipe out the second entry in the Provincial Legislative List. It is true, that where a subject-matter might fall either in the Concurrent Legislative List or in the Provincial Legislative List, Section 100 makes the former the dominant list; but this principle cannot apply where the result would be to rob the provincial entry of all its content. The learned Judges further observe following a decision in Marriage Legislation in Canada, In re (1912) A.C. 880 that ' Civil Procedure ' in the Concurrent Legislative List must be held to exclude matters relating to the jurisdiction and powers of Courts since special provision is made for these matters elsewhere in the list. The provisions in the Civil Procedure Code whether they are civil procedure in the limited sense or not are of course specifically included in the 4th entry in the Concurrent Legislative List. The same remarks, in my opinion, apply with equal, if not greater force, to entry number 2 in the Concurrent List as well as in the Provincial List respectively. Now applying that decision to the facts of the present cases, I would hold that Criminal Procedure in the Concurrent List must be held to exclude matters relating to jurisdiction and powers of all Courts including the High Court since special provision for that, is made in the Provincial Legislative List. The word ' including ' in entry No. 2 was the subject of some comment and Mr. Mani invited our attention to a decision of the Privy Council in Rajah Bejoy Singh v. Surendra Narayanan Singh (1928) 55 M.L.J. 456 : L.R. 55 IndAp 320 : I.L.R. 56 Cal. 1 (P.C.) to the, effect, that the expression ' including all interests therein ' does not increase the corpus of the subject of the lease in that particular case. It is unnecessary to consider the real import of that expression since I am of opinion that entry No. 2 in the Provincial List covers the present case.
115. Relying upon Section 223 of the Constitution Act which re-affirms and upholds the existing powers, jurisdiction, etc., of the High Court on the establishment, of the Dominion as exactly what they were, before that period, it is urged that as Clause 44 of the Letters Patent of the High Court declares that the provisions of the Letters Patent are only subject to the Legislative Powers of the Governor-General, -the equivalent of which is, at present, the Dominion Legislature,-the Provincial Legislature or the Governor has no power to promulgate the Ordinance with the inclusion of Section 16-A thereby interfering with Clause 44 of the Letters Patent. The short answer to this is that Clause 44 itself makes the Letters Patent subject to the Legislative powers of the Governor-General and since such legislative powers relating to the jurisdiction and powers of Courts as the Governor-General had, became transferred to either the Provincial Legislature or the Dominion Legislature by virtue of the Constitution Act the objection can have no validity. In Hirji Laxmidas v. Francis Fernandez : AIR1945Bom352 Stone, C.J., and Kania, J., had to consider a similar question and the conclusion arrived at therein was that by the joint effect of Section 293 of the Constitution Act, and Sections 2 and 7 of Government of India (Adaptation of Indian Laws) Order, 1937, reference to the Governor-General in Clause 44 of the Letters Patent refers to all other competent authorities including the Provincial Legislature. The clauses of the Letters Patent can therefore be altered by the Provincial Legislature. It follows therefore that Section 293. of the Constitution Act was wide enough to cover Letters Patent as a Law and the proper authority to legislate is the Provincial Legislature. Ex concesso if the issuing of a writ of Habeas Corpus is included in either Clause 2 of List No. 2 or in, Clause 2 of List No. 3 it cannot be said that Clause 44 is a bar to the promulgation of the Ordinance.
116. Before leaving this topic it is necessary to advert to another really desperate argument advanced on behalf of the petitioners, and that is, that in the alternative the power to issue directions in the nature of a writ of Habeas Corpus is a matter not enumerated in any of the lists in the 7th schedule to the Constitution Act, but is a residuary power and therefore according to Section 104 of the Act such residual powers of Legislation are vested in the Governor-General who may empower either the Dominion Legislature or the Provincial Legislature to enact a law with respect to it. As admittedly there has been no such empowering of either Legislatures so far as the issuing of the writ is concerned, according to the petitioners, the Ordinance to that extent is void. This argument cannot be accepted because, :in my opinion, this matter is governed either by entry No. 2 in List No. 2 or entry No. 2 in List No. 3. Moreover as observed by the Federal Court in Manikka Sundar Bhattar v. R.S. Naidu (1946) 2 M.L.J. 17 : 9 F.L.J. 57 where there is a choice between two possible constructions of an entry or entries, one of which will result in legislative power being conferred by some entry or entries in the list and the other finding of no existing powers, but if legislation is required, that recourse must be had to Section 104,-then, that construction which would include the subject in an entry or entries should be preferred. This is an additional reason for holding that the subject-matter of Section 16-A is included in Lists 2 and 3.
117. The next line of attack is that even if the Ordinance is intra vires so far as Section 16-A is concerned, the petitioners object to its application to the various cases under consideration. Out of the applications now before us, 17 applications were filed after the 25th May, 1948, but the rest of them were pending in this Court on the date of the promulgation of the Ordinance. The learned Advocate-General does not dispute the fact that the petitioners, in all the cases, were arrested under Act I of 1947 and detained in custody before the promulgation of the Ordinance. The question therefore arises as to the applicability of the Ordinance and its provisions to the cases already pending in this Court and to those filed subsequent to 25th May, 1948, by persons who have been arrested and detained prior to the coming into force of the Ordinance. It is not seriously disputed that Section 16-A relates to a matter of substantive right and not one of procedure. In Vasudeva Samiar, In re (1928) 56 M.L.J. 369 : I.L.R. 52 Mad. 361 a Full Bench of this Court following Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 decided that the amendment of Clause 15 of the Letters Patent by which the right to prefer a Letters Patent appeal was restricted to cases where the Judge who heard it has granted a certificate permitting the filing of such Letters Patent appeal, was held to be not retrospective in order to affect appeals in suits which had been filed before the amendment. The institution of a suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career unless the Legislature has either abolished the Court to which an appeal then lay or has expressly or by necessary intendment given the Act a retrospective effect. If the right to file an appeal cannot be impliedly taken away by construing the law as having a retrospective effect, a fortiori it follows that that right to get one's illegal detention set aside cannot also be taken away. To this aspect of the case the contention on behalf of the Crown is that that Section 16-A expressly applies to all pending cases, or at least by necessary intendment applies to such cases. The learned Advocate-General points out that the words:
Shall apply to any person detained or deemed to have been detained under Section 2 of this. Act.
make it clear that all persons whose liberty has been curtailed by applying the provisions of Section 2 of the Act or who are deemed to have been detained under the provisions of Section 19 of Madras Act I of 1947 are affected by Section 16-A. I am unable to read Section 16-A as expressly giving it a retrospective operation. The Ordinance making authority could have used appropriate words if the intention was to make the section retrospective. We are familiar with legislative enactments where suitable and proper words had been explicitly and clearly used in order to bring out the intention to make the statute retrospective in operation. In the absence of any such words I am not prepared to agree with the learned Advocate-General that the words ' detained or deemed to have been detained ' should be understood as denoting a clear retrospective operation to the statute.
118. Then, the question is whether by necessary intendment it was given a retrospective operation. Neither the preamble to the Ordinance nor any other provision gives any direct indication about the intention to make it retrospective. The learned Advocate-General relied upon some cases, which according to him showed that such a piece of legislation should be deemed to have retrospective effect. In Basanta Chandra Ghose v. King-Emperor (1945) 1 M.L.J.365 : 8 F.L.J. 40 there is a passage in the judgment of the learned Chief Justice to the effect that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as from the date of the institution of the proceedings cannot be invoked in matters of detention. If at any time before the Court directs release of a detenu on the ground that he is wrongfully detained a valid order directing his detention is produced, the Court cannot order his release merely on the ground that at some prior stage there was no valid cause for his detention. The question is not whether the later order validates the earlier detention, but whether on the face of the later valid order the Court can direct the release of the detenu. It cannot be said that these observations can be directly applied to the present petitions, because the Court has not yet considered whether the applicants were validly detained or not. It is not as if the original detention under the Public Safety Act having been found illegal, a validating Act is passed justifying such detention and making it legal. In Shibnath v. Porter : AIR1943Cal377 Mitter, J. considered the effect of an Ordinance as affecting pending proceedings. Though the learned Judge held in that case that the illegal detention was later on validated by the Ordinance, his general observations can be read only as laying down that unless there is an express provision, retrospective operation cannot be given to an Ordinance like the one he was considering. He also expressed the opinion that where the statute gives its provisions retrospective operation in express terms it would be a matter for consideration how far the retrospective operation extended and whether pending actions were intended to be affected by it and therefore the question finally resolves itself into a matter of construction, though express words are not essential. I do not see how this decision helps the contention of the learned Advocate-General. The other decisions relied on by him, viz., Mukherjee v. Mussammat Ram Ratan Kuer I.L.R. (1936) Pat. 268 and The United Provinces v. Mst. Atiqua Begum (1941) 1 M.L.J. (Supp.) 65 : 1940 F.C.R. 110 : 3 F.L.J. (F.C.) 97 do not carry this contention any further. In the former case their Lordships found that Section 26(N) of the Bihar Tenancy Act was retrospective because the words used were sufficiently plain. In the latter case the Federal Court had to consider the ' requirements of Remission Acts of 1938 (United Provinces) ' and Sulaiman, J., in discussing the retrospective nature of that piece of legislation observed that when a statute deprives a person of his right to sue or affects the power and jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly established. 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 a statute must be construed strictly and not given a liberal interpretation. As I construe the section, I am clear that there is no intention, even implicit, as can be gathered from the objects and from an overall examination of the whole Ordinance to make Section 16-A retrospective, much less is there any express provision to that effect. These applications that were pending on the 25th May, 1948, should be decided in accordance with Act I of 1947, as it stood before its amendment by the Ordinance. It is pertinent to refer in this connection to Lauri v. Renaud (1892) 3 Ch. 402 where Lindley, L.J., observed:
It is a fundamental rule of English Law that no statute shall be construed so as to have retrospective operation, unless its language is such as plainly to require such a construction; and the same rule involves another and a subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective effect than its language renders necessary.
(See also Craies' Statute Law, 4th Edition, pp. 329 and 330). Similar observations are found in Maxwell's Interpretation of Statutes (8th Edition, page 199)- Quoting from Warne v. Beresford 6 L.J. Ex. 192 the learned author observes:
Where for instance the defendant pleaded to an action for a small sum that the jurisdiction of the Court had been taken away by the Court of Requests Act and that Act was repealed after the filing but before the trial, it was held that the plaintiff was entitled to judgment.
(See also Halsbury, Vol. 31, Hailsham's edition, pages 515-517).
119. With regard to the 17 petitions filed subsequently, the petitioners contend that Section 16-A cannot take away their right to invoke the powers of this Court to issue a writ of Habeas Corpus, if their detention is found to be illegal or improper. The question as to what the powers of this Court are in the absence of Section 16-A and with it in the statute will be considered later. The only point now to be decided is whether Section 16-A debars the petitioners from filing the applications after the 25th May, 1948, and the Court from hearing them. The petitioners put forward the plea that though their applications reached the High Court only after the 25th May, 1948, they had been despatched from their places of detention by the respective petitioners some days before the promulgation of the Ordinance and that the delay caused in transit or occasioned by the action of the executive authorities should not prejudice them. There is no allegation that their applications were fraudulently or wantonly withheld until the Ordinance was passed. Though it was very feebly suggested that the executive authorities withheld the transmission of these applications to the Advocates till the Ordinance was promulgated, no attempt whatever has been made to substantiate such a suggestion. I am definitely of opinion that in the absence of any tangible material, it is not open to this Court to entertain or accept a suggestion of the kind. Even if it be so, I fail to' see what this Court can do in a matter like this.
120. The petitioners in these 17 applications further contend that there is a right vested in them under Section 491 of the Criminal Procedure Code to invoke the jurisdiction of this Court, the moment they were illegally detained under the Madras Public Safety Act and therefore if Section 16-A of the Ordinance cannot be construed as having a retrospective operation, that vested right which inhered in them prior to its promulgation should not be prejudiced or taken away, by the application of Section 16-A. The arguments proceeded on the basis that recourse to Section 491 and the application to invoke the same are rights vested in the petitioners from the moment of their detention. I am prepared to accept that it is a right which a person possesses to see that he is not wrongfully confined. It is one of the essential elements in the liberty of a human being, but to say that it becomes vested the moment he is illegally detained is to my mind overstating the principle and going too far. In order that a right might become vested, there must be an antecedent act or, omission with an intention to avail of or take advantage of the privilege; otherwise, as is well known the right is only contingent. A mere right to take advantage of a certain privilege cannot be styled as a vested right. In Abbott v. Minister for Lands (1895) A.G. 425 the Privy Council in dealing with the Crown Alienations Act, 1861, of New South Wales in Australia has laid down that the mere right existing at the date of a repealing Statute to take advantage of the provisions of the Statute repealed is not a right accrued. To my mind in the case of the petitioners in 17 cases they did not have any right accrued in their favour by their mere detention. The above decision has been followed in Hamilton Gell v. White (1932) 2 K.B. 422 where Atkin, L.J., was of opinion that abstract rights conferred by a repealed Statute cannot be considered as specific rights accrued in favour of an individual. In this connection it is also useful to refer to the observations of Sulaiman, J., in United Provinces v. Mst. Atiqua Begum (1941) 1 M.L.J. Supp. 65 : 1940 F.C.R. 110 : 3 F.L.J. (F.C.) 97 where a number of cases of the English Courts were considered and discussed. As against the above line of authority, Mr. K. Krishnamurthi, appearing for the petitioners in one of these petitions relies upon the observations of the Court of Appeal in Hough v. Windus (1884) 12 Q.B.D. 224. In that case what happened was that before the enactment of Section 146 of the Bankruptcy Act of 1883 and in accordance with the law as it stood, a sheriff had entered into possession and seized the goods of the defendant under a writ of elegit at the suit of the plaintiff, a judgment-creditor of the defendant; but no delivery of the goods had been made to the plaintiff at the time the Bankruptcy Act became law. It was held by the Court of Appeal that the Bankruptcy Act of 1883 had not deprived the plaintiff of his right to the delivery of such goods, even though the writ of eligit had ceased to exist as a result of the Act. On the analogy of the principle stated here, learned Counsel wants the Court to say that the right which the petitioner had, to apply for a writ of Habeas Corpus before the promulgation of the Ordinance cannot be taken away by Section 16-A. I am unable to apply the analogy to this case for unlike the case in the Court of Appeal there was no action taken by the petitioners in the 17 petitions here. Hough v. Windus (1884) 12 Q.B.D. 224 would certainly be an authority in favour of the contention that Section 16-A cannot be applied retrospectively in order to take away the right of the petitioners in applications pending at the time of the promulgation. Mr. B. V. Subramaniam on the other hand wants to evolve a theory by the acceptance of a converse proposition of law as is seen from the two cases cited by him, viz., Weir's (Criminal Procedure and Rulings) 791 and Chockalingam, In re : (1945)2MLJ295 In the former case this Court decided that an offence committed under an enactment since repealed when that enactment was in force may be tried under the repealed enactment. This principle is embodied in Section 6, Clauses (c) and (e) of the General Clauses Act (Act X of 1897) as well as in Section 8, Clauses (d), (e) and (f) of the Madras General Clauses Act (Act I of 1867). The decision of Kuppuswami Aiyar, J., in Chockalingam, In re : (1945)2MLJ295 applied these provisions of law to the Newspaper Control Order, 1942, though the General Clauses Acts as such do not apply to such orders. I am unable to accede to the contention that the principles deducible from these decisions can be successfully applied here. A recent decision of the House of Lords in Wicks v. Director of Public Prosecution (1947) A.G. 362 affirms the principle that the repeal of a Statute will not prevent the initiation and trial after its repeal of a prosecution regarding an offence committed when the law was in force. This, again, is a converse case.
121. Certain observations of Wallis, C.J., in Raja of Pithapur v. Venkatasubba Rao (19815) 29 M.L.J. 1 : I.L.R. 39 Mad. 645 were also relied upon. The learned Chief Justice and Kumaraswami Sastri, J., agreed with Sadasiva Aiyar, J., who had followed an earlier decision in Ramakrishna Chetty v. Subbaraya Aiyar (1912) 24. M.L.J.54 : I.L.R. 38 Mad. 101 laying down that where an Act contains provisions for the limitation of suits which take away a vested right of suit without providing for any equivalent remedy, then, according to the approved rule of construction the provisions must be construed to have been enacted subject to the implied exception that they were not to extend to such vested rights to sue which were to continue subject to the rules of limitation in force at the passing of the Act. These decisions proceed upon the rule of law that where there is a vested right of suit it cannot be impliedly taken away by an enactment. Such abolition of a right of suit must be in express terms or by necessary intendment. It seems to me that the principles of law discussed in these cases as well, cannot be applied to the present petitions. The whole question is whether the petitioners have a vested right to avail themselves of Section 491, even if they do not move their little finger or take any steps in that direction. Certain observations in the judgment of Fazl Ali, J., in Banwari Gope v. King-Emperor I.L.R. (1943) Pat. 175 tend to show that in the case of criminal proceedings instituted against a person, he is deemed to have a right of appeal vested in him. in accordance with the law existing on the date when the criminal proceedings were instituted. By implication it can be inferred from this decision, that in order that a right might be vested in an individual there must be some overt action taken by him or some proceeding instituted against him. As the learned Judge observes, as soon as a Magistrate takes cognizance of an offence there is a criminal case against the accused person and at that point of time he acquires such a right of appeal or revision as the case may be as the law confers upon him. The right of appeal being a right incidental to and continuing from an accusation alleged against a person is not exactly the same as the right to apply for a writ of Habeas Corpus for any illegal detention. Probably a person arrested and detained under the Public Safety Act (Act I of 1947) may have a right vested in him from the moment of his arrest to have recourse to the provisions of Madras Act I of 1947, regarding the service of the reasons for the detention on him, and the right to have his case sent before the Advisory Board constituted by the Act. In one sense, these advantages may be said to be rights vested in him. But I find it impossible to hold that a person detained under the Public Safety Act has got a vested right of applying for a writ of Habeas Corpus under Section 491 by mere inaction. Such being the case, Section 16-A must be held to be applicable to the cases filed after the 25th of May, 1948.
122. The most important question discussed at length during the hearing of these applications has now to be considered. In so far as the petitions pending in the Court at the time of the promulgation of the Ordinance are concerned, what exactly are the powers of interference by this Court According to Section 491(1)(b), if a person is illegally or improperly detained in public or private custody within the appellate criminal jurisdiction of the High Court, the High Court can order that he be set at liberty. Section 491(1)(a) gives the power to the High Court to direct that a person within the limits of such appellate jurisdiction be brought up before the Court to be dealt with according to law. Section 16(1) of Madras Act I of 1947 enacts that no order made in exercise of any power conferred by or under this Act or deemed to have been made under this Act by virtue of Section 19, shall be called in question in any such Court. Sub-section (2) deals with the discharging of proceedings calling in question the validity of an order made under Section 2 of the Madras Maintenance of Public Order, Ordinance and Sub-section (3) says that where any order as is referred to in Sub-section (1) purported to have been made and signed by an authority in the exercise of any power conferred by or under this Act, the Court shall presume that such order was so made by such authority. There has been a large body of case law in the Indian High Courts as well as in the Federal Court on a similar and analogous subject, viz-, the provisions of the Defence of India Act and the rules thereunder. Most of those decisions refer to the well-known decisions of the House of Lords in Liversidge v. Sir John Anderson (1942) A.C. 206 and Greene v. Secretary of State for Home Affairs (1942) A.C. 284 In the earlier of them, the House of Lords had to consider whether the applicant who was detained by the Home Secretary under Regulation 18-B of the Defence (General) Regulations of 1939 was entitled to get the particulars of the reasons of his detention from the Home Secretary and in the second case, it was an application for a writ of Habeas Corpus by a person detained under the same Regulation. The House of Lords by a majority held in the first case, (Lord Atkin dissenting) that the Court cannot compel the Secretary of State to give particulars of grounds on which he had reason to believe the detenu to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over the detenu. The production by the Secretary of State of an order of detention made by him and ex facie regular and duly authenticated constitutes a defence to such an action unless the plaintiff discharges the burden of establishing that the order is invalid. In Greene's case 2 the majority of the Learned Law Lords held that the production of the Home Secretary's order, the authenticity and good faith of which were not impugned constituted a complete answer to an application by the detenu for a writ of Habeas Corpus. I do not think it necessary to discuss at any length the principles of law and the precepts of the Constitution considered at great length by the Law Lords because the matter has been so exhaustively and thoroughly considered in all the various aspects that could be ever imagined, if I may say so, in the speeches of the Noble Lords. A very clear and succinct summary of the principles in those cases has been pithily given in R. v. Home Secretary Budd (Ex parte) (1942) 3 L.J. (K.B.) 475 The legal position is, that the Court has now power to inquire into the grounds for the Home Secretary having reasonable cause to believe or having been satisfied within the meaning of the Regulation and that the only matters upon which the Courts have power to inquire are- (1) the good faith of the Home Secretary, (2) the authenticity of the order and (3) its application to the persons detained. I may straightaway say, for reasons which are being given hereafter, that applying these principles to the present petitions, I am of opinion that if the Provincial Government is, bona fide, satisfied with respect to any person that he is acting or about to act in a manner prejudicial to the public safety or the maintenance of public order, then, it is not open to the Court to inquire into the sufficiency or validity of the reasons which made the Provincial Government to pass such an order.
123. Rule 26 of the Defence of India Rules is very similar in wording to the present Section 2 of Madras Act I of 1947 and there is similarity in many respects between the above two provisions and Rule 18-B of the Defence (General) Regulations of 1939. They are in many respects in pari materia, though not ad idem. One can safely assume that Regulation 18-B is the parent of similar provisions of law, either enacted or promulgated in India. Now, the words used in Regulation 18-B are ' Has reasonable cause to believe ' and those in Section 2 of Madras Act I of 1947 are ' If satisfied that ....' These two expressions denote the same state of mind and are not intended to express anything different from each other and such being the case the decisions on the interpretation of Rule 18-B of Defence (General) Regulations as well as on Rule 26 of the Defence of India Rules are very helpful in deciding this question. There is the further circumstance that Section 16 (1) of Madras Act I of 1947 is worded practically in the same terms as Section 16 (1) of the Defence of India Act with a very minor addition, viz., ' deemed to have made ....' The construction of Section 16(1) of the Defence of India Act and Rule 26 of the Defence of India Rules came up for decision finally before the Privy Council in Emperor v. Sibnath Banerji (1945) 2 M.L.J. 325 : 8 F.L.J. 222 (P.C.) and the Judicial Committee has laid down what the powers and functions of the High Court are when approached by a person detained under Rule 26 of the Defence of India Rules. Briefly stated, the principles of law enunciated are that it cannot be said that in view of Section 16(1) of the Defence of India Act and Section 59 (2) of the Government of India Act, 1935, that the High Court has no jurisdiction to investigate the validity of orders of detention made under Rule 26 of the Defence of India Rules. Sub-section (1) of Section 16 assumes that an order is made in exercise of the power given under Rule 26. It clearly leaves it open to challenge such an order on the ground that it was not made in conformity with the power conferred. It is therefore quite open to the High Court to investigate and find out whether or not the order was made in conformity with and in exercise of the power conferred. The burden of establishing by admissible evidence prima facie, the inaccuracy of the recitals in the order of detention lies heavily on the person who challenges it; but if a Court is satisfied that the order was not made in conformity with or in exercise of the powers, it can certainly enforce the provisions of Section 491, Criminal Procedure Code. As their Lordships of the Judicial Committee over-ruled in some respects the decision of the majority of the Federal Court and the Calcutta High Court, it is unnecessary to refer to those decisions at this stage.
124. There is an earlier case decided by the Federal Court reported in Basanta Chandra Ghose v. King-Emperor (1944) 6 F.G.R. 295 which dealt with ' the Restriction and Detention Ordinance III of 1944 ' (Sections 6 and 10) promulgated by the Governor-General of India. That Ordinance contained, in addition to a provision similar to Section 16 of Madras Act I of 1947 and Section 16 (1) of the Defence of India Act, a further clause stating that no Court shall have power to make any order under Section 491, Criminal Procedure Code, in respect of any order made under or having effect under that Ordinance or in respect of any person the subject-matter of such an order (vide Clause 10(1) of the Ordinance). This latter portion resembles very much Section 16-A of the present impugned Ordinance and therefore the construction of Section 10(1) of Ordinance III of 1944 by the Federal Court will be of immense assistance in deciding what exactly are the powers which this Court possesses when Section 16-A of the Ordinance is found intra vires. The principles of law that emerge from this decision are (1) that it is open to the detenu to show that the order of detention was not in effect made by the authority empowered to make it, or (2) that it was a fraudulent exercise of the power by the authority, or (3) that the detenu was not the person intended to be affected or lastly (4) that the authority which made the order did not act in good faith. In other words the order must be in proper exercise of the powers conferred by the Statute and not in a colourable exercise, nor should the order be the result of bad faith on the part of the authority. It should also not be an abuse of the powers conferred under the Act or for the purpose of effecting a fraud on the Act. Consistently with these principles, good faith on the part of the order-making authority is presumed until the contrary is proved and a mere challenge by the detenu is not sufficient to shift the onus on the authority. In my judgment the above principles are well established from the decisions cited, and they are fully applicable to Madras Act I of 1947 and Ordinance II of 1948. Moreover in Basanta Chandra Ghose v. King-Emperor (1944) 6 F.G.R. 295 the Federal Court also considered the effect of Section 10(1) of Ordinance III of 1944 which corresponded to Section 16-A of the present Ordinance. Spens, C.J. in delivering the judgment has emphasised the aspect that Section 10(1) of Ordinance III of 1944 did not protect a document which was not really an order under Rule 26, that Clause (1) of Section 10 had not introduced any new principle of immunity, that except for reference to Section 491, Criminal Procedure Code, Clauses 1 and 3 of Section 10 merely re-enact Clauses (1) and (2) of Section 16 of the Defence of India Act, and that such re-enactment was necessitated because all future orders of detention should be made under the Ordinance and could not therefore attract the benefit of Section 16 of the Defence of India Act. It is also further observed that no curtailment of the powers of the Court to investigate and interfere with the orders of detention has been imposed by the taking away of the powers of the High Court under Section 491. The Court is still at liberty, even after insertion of Section 10(1) in the Ordinance to investigate whether an order purporting to have been made under Rule 26 of the Defence of India Rules and deemed to be made under the Ordinance....was in fact validly made in exactly the same way as immediately before the promulgation of the Ordinance. Such being the case, it cannot be said that by a similar insertion of Section 16-A in the Madras Ordinance II of 1948, there has been any curtailment of the limited powers which this Court already had when Section 16(1) of Madras Act I of 1947 was on the statute book. To my mind, this Section 16-A seems to be surplusage and it does not in any way reduce or minimise the powers of this Court, nor does it add to the qualified immunity which the authority making an order of detention already had. Even without the insertion of Section 16-A the powers of this Court, as I have already discussed, were restricted to finding out whether the order of detention was made by an authority empowered to make it in conformity with the Statute or whether it was a fraudulent exercise of the power or whether the order itself was authentic or whether it applies to the person concerned and the good faith of the authority in making the order is presumed. The Court can also investigate whether there was any colourable exercise of power or whether it was made in bad faith or in abuse of the powers conferred under the Act, but with the addition of Section 16-A of the Ordinance the above limited powers are not in any manner reduced. But it is not open to the Court to find out whether the grounds on which Provincial Government is satisfied are sufficient. Different standards of satisfaction are likely to exist in the case of different individuals even if the society were ideal. In the society as it is constituted today, we cannot expect the same standard in every individual, so that if the executive authority states bonafide that it is satisfied, this Court cannot say that it is not a proper or valid satisfaction. It is interesting to note that under the Defence Regulations in England, there was no provision either like Section 16 of the Defence of India Act or like Section 16 or 16-A of the Madras Act and Ordinance. Even then, the House of Lords held that it was not open to the Court to go behind the satisfaction of the Home Secretary.
125. In my opinion, these are principles deducible from a discussion of cases of the highest, authority so far as this Court is concerned. These principles ought to be applied in considering questions of detention here. But it was suggested that another decision to which the attention of the Court was invited, reported in Ex-Rana Birpal Singh of Bhajji State v. The King-Emperor (1946) 1 M.L.J. 322 : I.L.R. 1946 Lah. 96 : 9 F.L.J. 1 (F.C.), strikes a somewhat different note. On a careful reading of that decision and the comparison of it with the earlier cases of the Federal Court and the Privy Council, I do not feel that anything different has been laid down. The argument of the counsel before the Federal Court was that Regulation III of 1818, the detention under which was specifically excluded from the operation of Section 491 by Sub-clause (3) of that section, did not apply to the petitioner in that case, who was said to be the ruling Prince of Bhajji State. It was therefore urged that the detention of a ruling prince under that Regulation was absolutely outside its purview, was a negation of it and not the exercise of the power The question that was considered was whether the person detained was a ruling-Prince or not, and on that basis, the question came within one of the three principles. laid down by the Privy Council and the House of Lords, viz., the applicability of the regulation to the person concerned. The good faith of the authority making the order and the authenticity of it were not questioned and therefore the Federal Court did not have to consider those aspects. Having carefully read that decision of the Federal Court, I feel that the following passage in the judgment should be read only as an answer to the question argued, viz., the applicability to the person concerned:
It is however clear in our judgment that once the Court is satisfied that a person is being detained under Regulation HI, there is no jurisdiction under Section 491 which a Court can exercise in the matter.
I do not interpret this decision as in any way proceeding in any divergent direction from the line of decisions in England and in this country on the subject referred to by the learned Chief Justice in Basanta Chandra Ghose v. The King-Emperor (1944) 2 M.L.J. 167 : 1944 F.L.J. 203 : 6 F.C.R. 295 (F.C.). In view of the above discussion in which I have considered the authorities which are binding upon us, it is unnecessary to discuss the observations of the various other High Courts to which our attention was draw.n, viz., Prabhakar v. Crown I.L.R. (1943) Nag. 154 Emperor v. Harish Chundra I.L.R. (1943) All. 773 and Manubhai Bhikabhai v. The Crown I.L.R. (1943) Bom. 433 in all of which similar conclusion to the one arrived at above has been reached.