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Jnan Prosanna Das Gupta and anr. Vs. the Province of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ1
AppellantJnan Prosanna Das Gupta and anr.
RespondentThe Province of West Bengal
Cases ReferredEastern Trust Company v. McKenzie
Excerpt:
- harries, c.j.1. these are two petitions-under section 491, criminal p.c.2. in miscellaneous case no. 85 of 1948 the petitioner is one jnan prasanna das gupta who has filed the petition on behalf of his brother satya prasanna das gupta who is at present detained in the presidency jail, alipore, in, misc. case. no. 108 of 1948 the petitioner is balendra nath mukherjee who has filed the-petition on behalf of his brother hiren mukherjee who is also detained in the presidency jail,. alipore.3. in the petition filed in misc. case no, 8fr of 1948 it is stated that the detained person, satya prasanna das gupta, was an active worker in the communist party of india and an important trade union leader in the industrial1 area of barraokpore. it is alleged that. satya. prasanna das gupta was very.....
Judgment:

Harries, C.J.

1. These are two petitions-under Section 491, Criminal P.C.

2. In Miscellaneous Case no. 85 of 1948 the petitioner is one Jnan Prasanna Das Gupta who has filed the petition on behalf of his brother Satya Prasanna Das Gupta who is at present detained in the Presidency Jail, Alipore, In, Misc. case. No. 108 of 1948 the petitioner is Balendra Nath Mukherjee who has filed the-petition on behalf of his brother Hiren Mukherjee who is also detained in the Presidency jail,. Alipore.

3. In the petition filed in Misc. case No, 8fr of 1948 it is stated that the detained person, Satya Prasanna Das Gupta, was an active worker in the Communist Party of India and an important Trade Union leader in the industrial1 area of Barraokpore. It is alleged that. Satya. Prasanna Das Gupta was very successful in. persuading industrial workers in the Barrack-pore area to join the All India Trade- Union.- Congress and to break away or refuse to join the Indian'National Trade Union Congress, an organisation which he regarded as hostile to the real interest of the working classes. It is further alleged that the said Indian National Trade Union Congress is an organisation supported by the Congress Party and that its leaders include two Ministers of the Province, Bri Ealipada Mukherjee and Sri Niharendu Dutta Mazumdar and other members of the . Legislative Assembly belonging to the Congress Party. It is suggested that Satya Prasanna Das Gupta was detained under the West Bengal Security Act, in order to prevent him carrying on propaganda for the All India Trade Union Congress and further to prevent him from supporting communist candidates in bye-elections which have become necessary by reason of the appointment of certain persons as Ministers-in West Bengal who are at present not members of the Legislature. In short it is suggested that the detention of Satya Prasanna Das Gupta was ordered maliciously and that the conduct of the Provincial Government has been through, out mala fide.

4. In the petition filed on behalf of Hiren Mukherjee, it is stated that the latter is a Master of Arts of the Universities of Calcutta and Oxford, a Bachelor of Literature of the University of Oxford, a member of the English Bar and an Advocate of this Court. It is said that he had a brilliant academic career be to in the University of Calcutta and at Oxford and that he was called to the Bar by Lincoln's Inn in or about the year 1931. On his return to India he was enrolled as an advocate in this Court and has been for some time a Professor of History first at the Andhra University and now at Eipon College, Calcutta. It is then alleged that Hiten Mukherjee is a journalist of repute and has been engaged to contribute articles to well-known papers such as the. 'Statesman' and the equally well-known legal journal, the 'Calcutta Weekly Notes'. It is further stated that he is an author of repute and that a number of his be os in English and Bengali are widely read, It is alleged that in or about the year 1942, Hiren Mukherjee who had been a member of the Indian National Congress for several years, severed his connection with that party and joined the CommuniBt Party. It is stated however that he has never been guilty of any un-lawful act and that there were no grounds whatsoever to justify his detention. Like Satya Prasanna Das Gupta he also alleges that one of the reasons for his detention is that he has been an active worker in the AH-India Trade Union Congress which is the rival organisation to the Indian National Trade Union Congress said-. to be.-sponsored by the Congress Party. It is alleged that the arrest and detention of Hiren, Mukherjee was ordered maliciously in order to prevent his carrying on propaganda for the All. India Trade Union Congress and attacking the Indian National Trade Union Congress.

5. Satya Prasanna Das Gupta was arrested on 5th May 1918 whereas Hiren Mukherjee was arrested on 1st June 1948. It is said that neither was informed why he was arrested, but later they were be to served with orders purporting to be made under Section 16, Weft Bengal Security Act (West Bengal Act ill [a] of 1948) hereinafter referred to as the Security Act. They were be to detained in the Presidency Jail and later they were served with documents setting out the grounds for their detention.

6. When these two cases came before a Bench consisting of Das J. and myself, it was contended that be to the cases involved a point which had arisen in an earlier case, namely, KanaUata be se v. The Province of West Bengal Mise. case No. 86 of 1948 which Das, J. and myself had referred to a Full Bench for reasons stated in our judgments in that case. It is clear that the reasons which caused us to refer Misc. Case No. 86 of 1948 to a Pull Bench are equally applicable to these cases. The, matter has, however, been complicated because, since we referred Misc. Case. 86 of 1948 to a Full Bench His Excellency the Governor of this Province has promulgated an Ordinance, being West Bengal Ordinance no. viii [8] of 1918, which purports to amend certain provisions of the Security Act. The validity of this Ordinance is challenged, and Das J. and myself sitting as a Bench could have decided that question. In the event, however, of our coming to a conclusion that the Ordinance was invalid, the same questions would arise as arose in Mis. Case No. 86 of 1948 which we had previously referred to a Fall Bench. That being so, Das J. and myself were. of opinion that these two petitions should also be referred to a Fall Bsnch and by an prder, dated 7th July 1918 we referred these, two petitions to a Full Bench for the reasons which we had stated at length in our order re-ferring the case of KanaUata be se (Misc. case No. 86 of 1918) to a Fall Bench.

7. When the case of KanaUata be se (Misc. case 86 of 1948) and the two present petitions came up for heating before this Full Bench, we were informed that the detained person, Arun be se, had been released. We, therefore, directed that the petition in his case, Misc. case 88 of 1948 be dismissed and the rule discharged an&j; we proceeded to hear the two petitions with which1, we are now concerned.

8. As I have already stated, the orders served upon Satya Frasanna Das Gupta and Eiren Mukherjee were orders made under Section 16, Becurity Act, and each of the orders was in these terms:

Whereas the person known as Satya Frasanna Das Hiren Mukherjee Gupta, son of ... is detained in the Presidency Jail under the provisions of Section 80, West Bengal Seourity Act. 1948 {West Bengal Act. III [3] o 1948);

And whereas having considered the materials against the said person, the Governor is satisfied that, 'with a view to preventing the said person from doing any subversive Act. it is necessary to make the (olSowing orders for the purpose of continuing his detention;

Now, therefore, in exercwe of the powers conferred by Clause (a) of Sub-section (1) and Sub-section (4) of Section 16 of the said Act. the Governor is pleased to direot-

(a) that the said person shall subject to the provisions of Section 17 of the said Act be detained until the 6th day of July 1948;

(b) that subject to the provisions of Clause (a) of this paragraph the said person shall, until further orders, Continue to be detained in the Presidency Jail; and

(c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940, as applicable for the time being to security prisoners referred to in the said Mies.

9. It will be seen that the order does not show in any detail why these two persons were detained and there is nothing on the face of the orders to show that the Provincial Government had any reasonable grounds for detaining them. On behalf of the petitioners, it was alleged that the orders were illegal by reason of the fact that there were no reasonable grounds upon which such (orders could be made and further that they bad been made mala fide and maliciously. The Pro-vincial Government has appeared to show cause by the learned Advooate.General. He produced the orders made by the Provincial Government under Section 16, Security Act. and contended that those orders justified the detention and afforded an answer to each of these petitions. No affidavit was filed by the learned Advocate-General in either of these oases and he relied on the English case of Greene v. Secretary of State for Home Affairs, (1943) A, 0. 384: 1941-3 ALL B. H. 388 for his contention that the orders were good answers to the petitions and completely justified the detention in each case. There can be no doubt that Greene's case (1942) A. 0. 284: 1941.3 ALL B. B. 388, decides that the production of a valid order of detention under Beg. 18 B of the Defence

10. The contention of the Provincial Govern- ' intent was that the order served on each of these detained persons was a valid order under g, 16, ' m' Security Act. as amended by ordinance yield 161 of 1948 or in the alternative was a valid order under 8, 16. Security Act. as it was originally enacted as held in the case of Jyoti Basu v. The Province of West Bengal ( Misc. case , No. 57 of 1948), decided on 81st May 1948. In that case a Bench of this Court held that an order similar in terms to the orders in the present cases was a valid order under Section 16, Security ' Act. and justified the detention of the petitioner in that case. When these two petitions came before Das J. and myself it was strenuously argued that the case of Jyoti Basu was wrongly decided and should not be followed and it was for that reason the case of Kanaklata be aa and the cases of the present petitioners were referred to a Full Bench In Jyoti Barn's ease ( Misc. Case No. 57 of 1948), it was held that the Court could not consider the grounds upon which the order of detention was made whereas in Eanak' lata be se's case ( Misc. Case No. 86 of 1948), Das J. and myself were of opinion that an order of detention under Section 16. Security Act would be invalid unless the Court found that it had been made on reasonable grounds, that is grounds which were in fact reasonable. By reason of the amendment of Section 16, Security Act by Ordinance VIII [6] of 1948 the question whether reasonable grounds exist for making an order cannot arise and the point can only be one of importance it the amending ordinance is for any reason invalid.

11. Section 16, Security Act as it was originally enacted was in these terms:

(1) The Provincial Government, if satisfied oh reasonable grounds, with respect to any particular person that with a view 'to preventing him from doing any subversive act it is necessary so to do, nay make an order-

(a) directing that he be detained;

(b) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in any such area or place in West Bengal as may be specified in the order;

(c) requiring him to reside or remain in such place or within snob area in West Bengal as may be specified in the order and it he is not already there to proceed to that place or area within such time as may be specified in the order, .

(d) requiring him to notify his movements 01 to report himself or be to to notify his movements and report himself In such manner, at such times and to ouch authority or person as may be specified is the order;

(e) imposing upon him such restrictions as may be specified in the order in respect of his employment, business or movements, in respect of his association or communication with other persona, and in respect of his aotlvitieg in relation to the dissemination of rows or propagation of opinion.

(2) Where as order Is made under Sub-section (1) directing any person to be detained, the Provincial Government ma;, if it an thinks fit, grant to such person, in accordance with snob roles as it may make ID this behalf, such allowance Or expenses as it may deem appropriate.

(3) If any person is in any area or place in contra-evection of an order made under the provision of this section, or fails to leave any area or place in accordance with the requirements of such an order then, without prejudice to the provisions of sab-section (6), he may be removed from such area or place by an; police officer or by any person acting on behalf of the Provinelal Government.

(4) So long as such an order as aforesaid in respect of an; person directing that he be detained, is in force, hi shall be liable to be removed to and detained in that place and under such conditions, which may in-clode conditions as to maintenance, discipline or punishment for offences and breaches of discipline, as the Provincial Government may from time to time by general or special order specify.

(5) If the Provincial Government has reason to believe that a person in respect of whom such an order as aforesaid has been made directing that he be detained has absconded or Is concealing himself an that the order cannot be executed, it may-

(a) make a report in writing of the fact to a Presidency Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily re-ides; and thereupon the provisions of Sb. 87, 88 and 89, Criminal P. 0, 189a, shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate.

(b) by notified order direct that the said person to appear before such officer, at such place, and within such period as may be specified in the order; and if the laid person fails to comply with such direction he shall, unless be proves that it was not possible for him to comply therewith and that he had, within the period specified is the order, informed the officer of the reason which rendered compliance therewith impossible and of his whereabouts be punishable with imprisonment for a term which may extend to one year, or with fine, or with be th.

(6) if any person contravenes any order made under this section, other than an order of the nature referred to, in clause (h) or Sub-section (5), he Shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

12. It will be seen that the Provincial Government could make an order directing any person to be detained or restricting his movements and such like if satisfied on reasonable grounds that it was necessary so to do with a view to preventing such person from doing any subversive act. The term 'subversive act' is defined in Section 2(7) of the Act. In Jyoti Basil's ease ( Misc. Case no. 67 of 1918), it bad been contended that the order detaining Jyoti Basu was illegal by reason of the fact that there were no reasonable grounds in fact upon which the Mtiefaotioo of the Provincial Government could be founded. The Provincial Government had argued that all that Section 16 of the Act required was that the Provincial Government were of opinion that there were reasonable grounds for ordering detention, and that it was not opto to the Court to question the grounds or to consider whethe the grounds were reasonable ok not. The Benob in Jyoti Barn's case, Misc. case No. 57 of 1948, following the well-known English case of Liversidge v. Sir John Anderson (1942) A.'o. 206 : 1941-3 ALL. K. E. 358, held that the Court could not scrutinise or question the grounds upon which the Provincial Government were satisfied and that it was sufficient if the Provincial Government honestly believed that there were good grounds for the order which they had made.

13. When the case of Kanaklata be se cama before Das J., and myself the correctness of the> decision in Jyoti Barn's case (Misc. dase No 67 of 1948), was vehemently challenged. We-were unable to agree with the reasons given is the judgment in Jyoti Basu's case ( Misc. Case. No. 57 of 1948), and as we could not dissent from that judgment we referred the case to a Full Benoh for the reasons given by each of us in somewhat lengthy judgments in that case. The judgment in Kanaklata Base's case ( Misc. Case no. 86 of 1948), was delivered on 80-6-1948, and it has undoubtedly Raised doubts as to the correctness of the decision in Jyoti Basu'3 case (Miso, case no. 7 of 1948). On Saturday 3rd July 1918, West Bengal Ordinance No. Vlli [8] of 1943 was promulgated and published in the official gazette of that date. la the preamble to the Ordinance it is recited:

Whereas it is expedient and necessary to amend the West Bengal Security Act. 1948, for the purpose of removing certain doubts which have arisen as to the interpretation of Section 16 thereof and for certain other purpose hereinafter appearing:

And whereas the West Bengal Legislature is not in session and the Governor is satisfied that ciroumstanoea exist which render it necessary for him to take immediate action;

The Governor Is pleased in exercise of the power Conferred by Sub-section (1) of Section 88, Government of India Act, 1935, to make and promulgate the following Ordinance.

14. Section l (l) of the Ordinance states that it is to be called the West Bengal Security (Amendment) Ordinance, 1948; and by Clause (2) of Section 1 it is provided that it shall come into force on the date of its publication in the official gazette. Then follows a most important provision, namely, that the provisions'of Clauses (l) and (3) of Section 2 shall be deemed to have taken effect on and from the date of the commencement of the West Bengal Security Act, 191|, as if on that date this Ordinance had been in force. In other words, of , (a) makea it clear that the Ordinance is to have retrospective effect and that its provisions shall be deemed to have been inserted in the Security Act from the date when that Act came into force. By Clause (1), Section 5 of the Ordinance the words 'on reasonable grounds' appearing in Sub-section (1) of Section 16 are deleted. By Clause (2) of this section certain amendments are made relating to the length or the period of detention made under Section 16. But this provision is not important in this case. This clause also amends certain provisions in Sections 17 and 18 of the Act. But those amend, taents are also not material to the present case. Clause (U) of this section creates a new offence, namely, of harbouring any person against whom tan order of detention under Section 16 has been made. Sections of the Ordinance is important and is in these terms:

For the avoidance of doubt it is hereby declared that no order heretofore made against any person under Sub-section (1) of Section 16, West Bengal Security Act, 1948, shall be deemed to be invalid or shall be called in question on the ground that at the time of making the order the authority making it had no reasonable grounds.

15. It will be seen that this Ordinance, if valid has removed any doubt which may have arisen as to the validity of orders made under g. 16 (l), Security Act, as it was originally enacted. Doubts had arisen as to the meaning of the words, 'The Provincial Government if satisfied on reasonable grounds1'. The words 'on reasonable grounds' are deleted from Section 16 (l), Security Act. Further, the Ordinance is retrospective and the effect is that Section 16 must be construed as never having contained the words 'on reasonable grounds' and further it is expressly provided that no order made before the amending Ordinance can now be challenged on the ground that there existed no reasonable grounds upon which the Provincial Government could be satisfied of the necessity of making such an order. In short the Ordinance purports to take away the jurisdiction of this Court to consider the validity of orders previously made upon the ground .that there existed no reasonable grounds upon which Such orders could be founded. It is to be observed that the jurisdiction of this Court under Section 491, Criminal P.O., was expressly reserved by Section 39(l), Security Act. That sub-section provided: ; 'Subject to the provisions of Section 491, Criminal P. C-1808, no order made in exercise of any power conferred' by or under this Act. shall be called in question in any Court,'

16. Clearly this section expressly reserves the eight of this Court to question the validity of orders by proceedings under Section 491, Criminal P. C.

17. There can be no doubt that if this amend-ing Ordinance is valid then orders made under 8,16 (l), Security Act, cannot now be challenged as suggested by Das J. and myself in Kanaklata be se's case (Misc. case No. 86 of 1948).

18. It was, however, argued on behalf of the petitioners that this Ordinance was invalid as the requirements of Section 88, Government of India Act, bad not been complied with. Section 88 is in these terms;

(1) If at any time when the Legislature of is Province is not In session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appeal to him to require:

Provided that the Governor shall not, without ins-truotiona from the Governor-General, promulgate any puch Ordinance if an Act pi the Provincial Legislature containing the same provisions would tinder this Act. have been invalid unless, having been reserved for the consideration of the Governor-General, it had reoeived the assent of the Governor-General.(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, but every such Ordinance

(a) shall be laid before the Provincial Legislature and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or, if a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Gounoll, If any, upon the passing of the resolution or, as the Case may be, on the resolution being agreed to by the Council ;

(b) (omitted.)

(c) may be withdrawn at any time by the Governor.

(3) If and so far as an Ordinance under this section makes any provision which would not be Valid if enacted in an Act of the Provincial Legislature assented to by the Governor, it shall be void ;Provided that, for the purposes of the provisions of this Act relating to the effect of an Act of a Provincial Legislature which is repugnant to an Act of the Dominion Legislature or an existing law with respect to a matter enumerated in the Concurrent Legislative List, an Ordinanoe promulgated under this section in pursuance of instructions from the Governor-General shall be deemed to be an Act. of the Pcovinolal Legislature which has been reserved for the consideration of the Governor-General and asBented to by him.

19. It will be seen that subs, (l), authorises the Governor when the Legislature of a Province is not in session to promulgate such Ordinances as the circumstances appear to him to require if he is satisfied that circumstances exist which render it necessary for him to take immediate action. In the present amending Ordinance it is recited that doubts have arisen as to the interpretation of Section 16, Security Act and as the West Bengal Legislature was not in session the Governor found it necessary to promulgate the Ordinance as he was satisfied that circumstances existed which rendered it necessary foe Mia to take immediate action. It is therefore dear that prima facie the Ordinance is valid as falling within the provisions of Sub-section (l) of Section 88, Govern, merit of India'Act.

20. The proviso, however, to this sub-section does raise difficulties. From this proviso, it will be seen that the Governor cannot without instructions from the Governor-General promulgate any Ordinance if an Act of the Provincial Legislature containing the same provisions would un the Government of India Act, have been invalid unless it bad received the assent of the Governor. General. We are informed by the learned Advocate-General that no instructions were received from the Governor. General before this Ordinance was promulgated. As there were no such instructions, counsel- for the petitioners contend that the Ordinance i3 invalid as an Act of the Provincial Legislature containing the same provisions would require the assent of the Governor General for its validity.

21. Whether an Act of a Provincial Legislature requires the sanction of the Governor-General for its validity depends upon the construction to 'be given to Sections 99, 100 and 107, Government of India Act as adapted by the India (Provisional Constitution) Order, 1947. These sections are as follows:

99. (1) subject to the provisions of this Act, the Dominion Legislature may make laws (including laws .having extra territorial operation) for the whole or any part -of the Dominion, and a Provincial Legislature may make laws for the Province or for any part thereof.

(2) Omitted.

100. (1) Notwithstanding anything1 in the two next Succeeding sub-sections, the Dominion Legislature hue, and a Provincial Legislature has not, power to make ' laws with respect to any of the matters enumerated in List I in Sch. VII to this Act (hereinafter called the 'Buderal Legislative List').

(2) Notwithstanding anything in the next succeeding sub-section, the Dominion Legislature and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List 3 in the said Schedule (hereinafter called the 'Concurrent Legislative List').

(3) Subject to the two preceding sub-sections the Provincial Legislature has, and the Dominion Legislature has not, power to make laws for a Province or any part thereof with respect to any ot the matters enumerated in List 2 in the said Schedule (hereinafter dalled the 'Provincial Legislative List').

(4) The Dominion Legislature has power to make lavs with respect to matters enumerated in the Provincial Legislative List except for a Province or any part 'thereof.' . . .

107. (1) If any provision of a Provincial law is repugnant to any provision of a Dominion Law which the Dominion Legislature is competent to enact or 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 Dominion Law, whether passed before or after the Provincial Law, or, as the case may be, the existing law, Bhall 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 the provisions of an earlier Dominion Law or an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General bas received the assent of the Governor-Gene-al, the Provincial law shall in that Province prevail, hut nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter:

Provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved, has received the assent of the Governor-General, shall be introduced or moved in the Dominion Legislature without the previous sanction of the Govornor-General.(3) If any provision of a law of an Acceding State is repugnant to a Dominion law which extends to that State, the Dominion law, whether passed before or after the law of the State shall prevail and the law of the State shall, to the extent of the repugnancy, be void.

22. It will be seen that Section 100 (l) prohibits the Provincial Legislature from legislating on matters in the Federal Legislative List (List 1 in soh. VII of the Act) which are matters reserved solely for the Federal Legislature. Sub-section (3) of this section empowers the Provincial Legislature to legislate on matters in the Provincial List and forbids the Dominion Legislature from legislating on such matters for any Province or part thereof. The Dominion by Sub-section (4) however has power to make laws with respect to these matters in the Provincial Legislative List for parts of India other than the Provinces as defined in the Act.

23. Sub-section (2) of this section deals with the Concurrent Legislative List, that is, the list of items upon which be to the Dominion and the Provincial Legislature may legislate. The fact that be to the Legislatures may legislate on these items raises the question which piece of legislation is to prevail in the event of be to the Legislatures legislating on the same subject. The possible inconsistency between Dominion and Provincial Legislation respecting matters in the Concurrent Legislative List is dealt with in Section 107 and Sub-section (1) of that section makes it clear that if any provision of a Provincial law is repugnant to any provision of a Dominion law or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List, then the Dominion law whether passed before or after the Provincial law or as the case may be, the existing law shall prevail and the Provincial law is declared to be, void to the extent of the repugnancy. Existing law is defined in Section 311, Government of India Act, and clearly includes Acts passed by the Central Legislature before 15th August 1947. It was contended that the terms of the Governor's Ordinance were repugnant to a number of ms-tions of the Code of Criminal Procedure and that being so, if the Ordinance had been an Act. of the Provincial Legislatures it would have been void to the extent of the repugnancy. It is sug-gested that all the provisions of the Ordinance are repugnant and therefore all would be void.

24. Sub-section (2) of Section 107 deals with a case where proposed Provincial Legislation would be repugnant to Dominion or existing laws. That section provides that if the Provincial Legislation is reserved for the consideration of the Governor General and receives his assent1: Jnan Pbosanna t. Pbovinoe of West Bengal {VB)( Harriet 0, J.) 8 Or. L, 3.1949 the Provincial law, though repugnant to Dominion or existing law will prevail in the Pro-vinoe.

25. As I have already stated, the proviso to Section 88(1) requires previous instructions Of the Governor General to validate any Ordinance if an Act of the Provincial Legislature containing the same provisions would under the Act have been invalid unless it bad received the assent of the Governor-General. What is stated on behalf of the petitioners is that the provisions of this Ordinance being repugnant to the existing law, namely, the Code of Criminal Procedure, the asflent of the Governor. General would benecessary to validate an Act containing those provi-sions. If the provisions are contained is an Ordinance the proviso to Section 83 (l) clearly re. quires the previous instructions of the Governor. General to the Governor to make such an Ordinance, and as apparently there are no such instructions the Ordinance it is urged is invalid and therefore these cases must be decided upon toe terms of Section 16 (l), Security Act, as originally enacted. Whether previous instructions of the Governor-General were necessary depends upon whether the provisions of this Ordinance, if contained in an Act; of the Provincial Legislature, would require the assent of the Governor General for their validity.

26. When the Ordinance is carefully examin. ed it will be seen that it relates entirely to three matters, namely, maintenance of public order, preventive detention for reasons connected with public order and the jurisdiction of the Courts in respect of such matters. The Ordinance pur. ports to amend S3.16 and 18 of the Act and creates a new offence of harbouring a person who has been ordered to be detained and thus adding a new section to the Act, namely, Section ISA. The only other provision of the Ordinance is the provision taking away the right of the Court under Section 191, Criminal P. O, to enquire into the reasonableness of the grounds upon which orders before the promulgation of the Ordinances were founded.

27. In my view the amending Ordinance is entirely concerned with preventive detention, persons subjected to such detention, public order and jurisdiction of the Courts in respect thereof.

28. These matters fall within items 1 and a of List a of the Provincial Legislative List of 8ch. VII of the Act.

29. Item 1 of List 2 is in these terms:

Public order (but not including the use of His Majesty's nas), military or air forces in and of the civil (fever); the administration of justice, constitution and .orgftnitation of all Courts, except the Federal Court id fees likep. therein; preventive detention for reasons wtd with the maintenance of publio order; persons to such detention.

30. Item a reads: '

Jurisdiction and powers of all Court; exact the Federal Court, with respeot to any of the matters in this list; procedure in Beat and Be venue courts.

31. In my view therefore the impugned Ordinance deals entirely with matters in items and 2 of the Provincial Legislative List, that is, with matters upon which the Provincial Legis-lature is alone competent to legislate. Legislation upon matters in the Provincial Legislative List is valid without the assent of the Governor-General and indeed the Governor-General in ordinary oases has no concern whatsoever with such legislation. That being so, the Ordinance which deals with these matters could be promulgated without the previous instructions-of the Governor-General and the proviso to aub-8. (l) of Section 88 can have no application.

32. It was however contended that the legislation though it might be regarded as legislation on items l and 3 in the Provincial Legislative' List was also legislation repealing or amending the criminal law and criminal procedure and in particular, the Code of Criminal Procedure. Criminal Law appears in item 1 of List ill, the-Concurrent Legislative List and Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of the Act i3 Item 3 of that list.

33. On behalf of the petitioners, it was urged that as the Ordinance added to the criminal law and amended or repealed important provisions of the Code of Criminal Procedures then-it must be regarded as an Ordinance dealing: with matters in the Concurrent List. Provincial legislation dealing with such matters would require the assent of the Governor-General or otherwise they would by reason of Section 107(1),,. Government of India Act be void for repugnancy. That being so it is urged the previous instructions of the Governor-General were essential for the validity of this Ordinance.

34. There can be no doubt that the provisions of this Ordinance are in conflict with car-tain provisions of the Code of Criminal Procedure and it appears to me that it would be practically impossible to legislate on preventive detention and with regard to persons subjected to such' detention without affecting the provisions of the Code of Criminal Procedure.

35. Sections 64 60,75 to 81,85 and 86, Criminal P. C, deal with arrest and upon what grounds a person can be arrested. Preventive attention may well contemplate arrest without the person arrested being even suspected of committing & crime. He may be arrested because it is feared that be may take a course which would be-dangerous to public order. Further, 8s. 60, 1 and 86, Criminal P. C. provide for judicial orders authorizing detention after arrest. Bat legislator with regard to preventive detention might well authorize detention without reference to the Courts as required by the Code of Criminal Procedure, In short, it appears to me that it must have been dear to the framers of the Government of India Act that; legislation with regard to the matters in item 1 of the Provincial List might well be repugnant to Legislation on Items 1 and 2 in the Concurrent Legislative List. Nevertheless a Provincial Legislature is entitled to legislate on these matters.

36. Again legislation with regard to the jurisdiction of the Courts in respect of preventive detention and of persons subjected to such detention might well come in conflict with existing law, e. g., the Letters Patent of this High Court and Section 191, Criminal P, C. Nevertheless, the Provincial Legislature was expressly authorised to legislate on such subjects. If the whole of a piece of legislation is confined to matters within the Provincial Legislative List, can that Legislation or any part of it be void for repugnancy because it may come in conflict with Dominion laws or existing laws applicable to the Dominion of India, and does a Provincial Act relating to such matters require the assent of the Governor. General to prevent the whole of it or certain provisions in it being void for repugnancy

37. On behalf of the petitioners, it was urged that Sub-section (l) of Section 107 is in the widest possible terms. It provides that if any provision of a Provincial law is repugnant to a provision of a Dominion law or existing law then such provi. sion in the provincial law is void for repugnancy Unless the assent of the Governor-General is obtained for the piece of legislation as required by Sub-section (2) of that section. It is therefore necessary to consider what construction should be given to Section 107 of the Act and in particular to sab-a. (l) of that section.

38. Fortunately this matter has come before their Lordships of the Privy Council in recent oases and in my view the effect of these decisions is that legislation by a Provincial Legislature on matters falling within the Provincial Legislative List is valid though such legislation may also to some extent be regarded as legislation touching matters in the Concurrent Legislative List.

39. In Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd., Ehulna, 741. a. 28 : A.I.R. (81) 1947 p. o. 60) their Lordships had to consider the Bengal Money-Lenders Act, 1940. This Act. inter aha restricted the amount of interest which a lender could recover on a loan, It bad been contended in the Courts of India that in be far as the Act. dealt with interest on pro. History notes it was ultra vires because the Provincial Government had no right to legislate on negotiable instruments and promissory notes which were matters reserved for the Federal Legislature being Item 28 in the Federal Legislative List. The Bengal Money. Lenders Act undoubtedly restricted the rights of the holder of a promissory note to recover interest beyond a certain rate and to that extent the legislation could be regarded as legislation in respect of Item 28 in the Federal Legislative List. Nevertheless their Lordships of the Privy Council held that as the Act was in pith and substance an Act dealing with money lending which is item 37 in the Provincial Legislative List the legislation was intra vires and valid. It is true that in this case the conflict was between the Provincial Legislative List and the Federal Legislative List and no question arose as to the effect of a possible conflict between the Provincial Legislative List and the Concurrent Legislative List. Lord Porter who delivered the judgment of the be ard however dealt generally with the question of conflict between these Lists. At p. 42 dealings with the question whether Provincial Legislation was valid though it incidentally trenched on matters reserved for the Federal Legislature he observed as follows:

The second is a more difficult question and was put with great force by counsel for the respondent. The principles, it was said, which obtain in Canada and Australia have no application to India. In the former instances either the Dominions and provinces, or the. Commonwealth and States divide the jurisdiction between them, the Dominion, or as the case may be, the States retaining the power not specifically given to the provinces or the Commonwealth. In such caees it is recognised that there must be a considerable overlapping of powers. But in India, it is aseerted, the difficulty in dividing the powers has been foreseen. Accordingly three, not two lists, have been prepared in order to covnr the whole field, and these lists have a definite order of priority attributed to them so that anything contained in List I is reserved solely for the Federal Legislature, and however incidentally it may betouobed on in an Act of the Provincial Legislature that Act. is ultra vires in whole or at any rate where in any place it affects an entry in the Federal List. Similarly any item in the Concurrent List if dealt with by the Federal Legislature is outside the power of the provinces and it is only the matters speoifioally mentioned in List II over which the province has comptele jurisdiction, although be long as any item in the Concurrent that bag not been dealt with by the Federal Legislature the provincial Legislature is binding.

In their Lordships' opinion this argument should not prevail. To take such a view is to simplify unduly the task of distinguishing between the powers of divided jurisdictions. It is not possible to make so clean a oat between the powers of the various Legislatures ; they are be und to overlap from time to time.

No doubt experience of past difficulties has made the provisions of the Indian Act. more exact in some particulars, and the existence of the Concurrent List hag made it easier to distinguish between that matter which are essential in determining to which Hat particular provisions should be attributed and those which are merely incidental. Bat the overlapping of subject-matter is not avoided by substituting three -Hats for two, or even by arranging for hierarchy of jurisdictions. Subjects must still overlap, and where they do the question must be what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found. It these questions could not be asked, much beneficent legislation would be stifled at birth. -and many of the subjected entrusted to provincial legislature should never effectively be dealt with.

40. At p. 44 the learned Lord observed:

No doubt where they came in conflict, List I has priority over Lists III and II and List III has priority Over List II but the question still remains, priority in what respect 1 Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list, or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character In their Lordships 'opinion the latter is the true view.

41. The question of conflict between Lists II and ill arose directly in another case decided by, the Privy Council, namely, Megh Baj v. Moh Bahhia, 74 I. A. 12 : A.I.R. (84) 1947 p. 0. 72) in which its was held that Section 107, Government of India Act. 1935, had no application in a case where the province could show, as it 'did in that ease, that it was acting wholly within its powers under the Provincial List and was not relying on any power conferred on it by last III of the Concurrent List, In that case it as argued that the Punjab Eestitution of Mortgaged Lands Act, 19S8, was invalid in that a number of its provisions were in fact legislation on matters falling within List III, namely, items 7, 8 and 10 of that List. Their Lordships, however, Wd that the impugned Act which dealt with mortgages on agricultural lands was legislation falling entirely within item 21 of the Provincial Legislative List, that is, land or any interest in land and therefore no question of repugnancy could arise by reason of the fact that the Act might trench to a certain extent upon the items in the Concurrent Legislative List to which I have referred. The whole argument is the case tamed upon the effect of 8s. 100 and 107, Government of India Act, 1936. At page 19 Lord Wright who delivered the judgment of the be ard observed:

The stress of the argument before the be and was laid on Sections 100 and 107. The respondent contended that the provisions of the impugned Act were wholly within item 21, supplemented, if need be, by item 2 of the Provincial Legislative List that accordingly the respondent did not need to rely for the validity of the Act on any powers of the province under the Concurrent Legisla- live List and therefore Section 107 was irrelevant to the decisions of the case. The appellants, on the other hand, oontended that the Impugned Act went beyond the limits of the legislative powers of the province under List II and could not be supported by invoking concurrent powers of the province under List III because the provisions which bad to be invoked for this purpose repugnant to existing Indian laws and were thus invalid udder Section 107, They Instanced the Indian Contract Act. Section 3, 37, 69 and 70, and the Code of Civil Procedure, Section 4, Sub-sections (1) and (2) and Section 9 as containing provisions to which the impugned Act. is repugnant.

42. Later, Lord Wright observed:

Thus be to parties rightly ooostrned Section 107 as having no application in a case where the province could show that it was'acting wholly within its powers under the Provinpial List and was not relying on any power conferred on it by the Concurrent List.

43. Again at p. 22 the learned Lord observed:

It follows that in their Lordships' judgment there is not sufficient ground for holding that the impugned Act. or any part of it, was invalid. As a whole it fell within the powers given to the province by items 2 and 21 of List II, without any necessity to invoke any powers from the Concurrent List, List III. Accordingly questions of repugnancy under Section 107, Constitution Act, do not arise and need not be considered here.

44. It is clear from these two decisions that if the subject-matter of a piece of provincial legislation falls wholly within an item in the Provincial Legislative List then the legislation is valid and no question of repugnancy can arise under Section 107(1), Government of India Act, even if the legislation trenches incidentally upon items in the Concurrent List.

45. The Federal Court in Megh Raj'-... Allah Bakhia, 1942. P. c. ft, S3 : A.I.R. (29) 1942; F. c. 27), had expressed the view that the doctrine of pith and substance bad no application to oases falling within Section 107, Government: of India Act, Their Lordships of the Privy Council do not expressly refer to this view in the judgment of the be and but it is clear from the observations of Lord Wright to which I have referred that questions of repugnancy under Section 107 cannot arise if the impugned legislation is upon an item in the Provincial List. To ascertain whether provincial legislation is really upon an item in the Provincial Legislative List the doctrine of pith and substance might have to be applied and, it is at least doubtful whether the observations of the Federal Court in Megh Bafs case, 1942 B', C. E. 53 : A.I.R. (29) 1942 F. o. 27) can now be regarded as good law.. This appears to be the view of a Bench of the Nagpur High Court in Om Prakash Mehta v. Emperor A. I. E 1948 Nag. 199 : 49 Cr, L. J. 230).

46. In my view the subject-matter of the impugned Ordinance in this case falls clearly within items l and 2 of the Provincial Legislative List and there was no need to rely on any items in the Concurrent Legislative List to entitle the Governor to promulgate the impugned Ordinance.

47. Counsel for the petitioners, however, strongly urged that this Ordinance dealt really with matters which fell within items 1 and 3 of the Concurrent Legislative List. In one sense it can be said to deal with these matters, but it is only incidental to the legislation in the ordinance. What the Ordinance deals with is preventive detention and persons subjected thereto and the jurisdiction o the Court in respect of those matters. A new criminal offence it,is true is created by Clause (4) of Section 2 of the Ordinance but that matter is in my view clearly legislation relating to preventive detention and persons so detained. That being so, if the Ordinance is to be regarded as standing by itself it is in our view legislation falling entirely within items X and 2 of the Provincial Legislative List and is therefore valid and no question of repugnancy under Section 107(1), Government of India Act, can arise.

48. The petitioner then argued that the Security Act itself was invalid by reason of the fact that it dealt with matters in the Federal Legislative List. It was of course unnecessary to consider whether it dealt with matters in the Concurrent Legislative List as the Security Act had obtained the assent of the Governor-General, It was urged that the original Act dealt with a number of items in the Federal Legislative List, namely, Posts and Telegraphs, item 7, Aerodromes, item 24, Arms and Ammunitions, item 29, Explosive Substances, item 30, and offences in respect of such items, item 42. It is true that the Security Act. does deal with these matters, but, in my view, it only incidentally trenches upon these items in the Federal Legislative List. In pith and substance, the legislation is legislation on iteni3 1 and 2 of the Provincial Legislative List and the encroachments upon the items to which I have made reference in the Federal Legislative List are merely ancillary to the main purpose of the legislation. Mr. Niren De on behalf of the petitioners has urged that the Security Act is really a criminal law and a Criminal Procedure Amendment Act, but I am unable to accept that view. Every section in the Act. deals with matters germane to public order, preventive detention, persons so detained, and with the jurisdiction of the Courts in respect thereof. The pith and substance of the Act is undoubtedly these matters and that being so, the fact that incidentally it trespasses or encroaches on the Federal Legislative List is immaterial? This is clearly the result of the decision of their Lordships of the Privy Council in the very recent case of Prafulla Kumar Mukherjee v. Bank of Commerce, Limited, Khulna, n I. A. 29 : A.I.R. (34) 1947 P. 0. 60), to which I have already referred. Mr. Niren De's argument was that as the parent Act, namely, the Security Act. was ultra vires by reason of these encroachments upon the Federal ' Legislative List any piece of legislation amending the same must be equally invalid. For the reasons which I have given I am satisfied that the original Act, namely, the Security Act, was not ultra vires and the amending ordinance is valid as no question of repugnancy between the provisions of that Act and the existing law on matters in List III can possibly arise.

49. It was then argued that in any event no .circumstances existed which entitled the Govern nor to legislate by Ordinance, It is conceded that when this Ordinance came into force, namely., 3rd July 1948,the Provincial Legislature was not in session. But it was argued that there were no circumstances existing which rendered it necessary for the Governor to take immediate action. It was said that the Ordinance was passed of meet a possible adverse decision by a Full Bench of this Court on the construction of the opening words Section 16 (1), of the original Act,, In the preamble it is stated that the purpose of .the Ordinance was to remove certain doubts which had arisen as to the interpretation of Section 16, Security Act, and Mr. Niren De has urged that these doubts would have been resolved one way or the other by the Full Bench of this Court when it sat, In my view, however, the existence of these doubts as to the meaning of Section 16, Security Act, might give rise in certain events to serious consequences and might well constitute the necessary circumstances entitling the Governor to legislate by Ordinance under Section 88, Government of India Act.

50. It appears to me however that the Court cannot go into the question whether such circumstances exist as to render it necessary for the Governor to promulgate this Ordinance. By Sub-section (l) of Section 88, Government of India Act, it is provided that if the Governor is satisfied that such circumstances exist he may promulgate an ordinance if at the time the Legislature is not in session. The satisfaction must be the satisfaction of the Governor and there is nothing to suggest that the Courts would be entitled in question the grounds upon which the Governor was satisfied. The position is very similar to that of an emergency which entitles the Governor-General to make ordinances. It was expressly held by their Lordships' of the Privy Council all King-Emperor v. Benoarilal Sarma, 72 L A. 67 : A.I.R. (32) 1915 P. C. 48: 46 Cr. L. J, 589) that whether an emergency existed at the time an ordinance was made and promulgated was a matter of which the Governor-General was the sole judge. His view that there was an emergency justified and authorised the ordinance. In this case their Lordships followed an earlier decision of the Privy Council, Bhagat Singh % King Emperor 58 1. A. 169 : A.I.R. (18) 19BI 2: 0. ill: as cr. l. j. 727), In .nay view, these cases apply with equal force to Section 88(1), Govern- ment of India Act, and therefore whether circumstance existed requiring immediate action the a matter upon which the Governor was the sole judge.

51. It was contended however that even if in ordinary oases the Court could not question the satisfaction of the Governor, nevertheless it Bold do so if the Governor himself had stated his' littsons. If the matter is one for the Governor and the Governor alone, I do not think that this Court could be ld that there were no sufficient reasons for promulgating an Ordinance even if the Governor stated the reasons which satisfied Mm that urgent legislation was necessary. That feeing so, this Court cannot go into the question whether circumstances did or did not exist which entitled the Governor to act under Sub-section (l) of Section 88, Government of India Act.

52. It was then argued that in any event the ordinance was not made in good faith. But if this Court cannot question the sufficiency of the grounds upon which the Governor was satisfied that urgent legislation was necessary, I think it would be very difficult for any Court to say that the Ordinance was not passed in good faith. The preamble gives the reason why it was passed, namely, the removal of doubts as to the meaning of one of the most important and crucial sections in the Security Act. The Provincial Government might well have thought that it was essential for the maintenance of public order and internal security of the province that they should have the powers which they contended the original Section 16 of the Act gave them. Doubts lad been cast upon the extent of these powers and I can see nothing mala fide in the Provincial Government desiring to remove those doubts and to make certain that their powers were such they wanted. If the Provincial Government had waited for the decision of the Full Bench and that had been adverse to their contention they could well have then amended the Act. Why could they not do so before such a decision of the Court It may perhaps have been more graceful if the Provincial Government or His Excellency the Governor had waited for the decision of the Full Bench, but even so, that would not make the act of promulgating this Ordinance mala fide.

53. It was then argued that even if circumstance existed which entitled the Governor to promulgate an Ordinance, nevertheless he could act promulgate an Ordinance repealing or amending provincial legislation. The contention was that the Governor was only empowered to pro-tailgate an Ordinance dealing with matters not Steady provided for by the provincial law. In tow, it cannot possibly-be said now that ordinance cannot repeal or amend existing legislation by a Legislature. This question was expressly considered by their Lordships of the Privy Council in King Emperor v. Behaarilal Sarma 0043/1945 . In that case the Governor-General by Ordinance had undoubtedly repealed or amended a number of sections in the Criminal Procedure Code. But nevertheless their Lordships of the Privy Council held that the Ordinance was valid. At page 68, Viscount Simon, L. C, who delivered the judgment of the Board observed:

Previous to X986, the High Court had revision jurisdiction over the Magistrates' Courts in the relevant area. The argument advanced was that this jurisdiction could not be taken away by an Ordinance made by the Governor-General under Section 72, as the Governor-General's Ordinance was not an 'Act of the appropriate Legislature.' 'Legislature,' it was said, means only the-Central Legislature consisting of the two Houses and the Governor-General, or the provincial Legislature consisting of the two Houses and the Governor and the Governor-General when making an ordinance in oases of emergency under Section 72 was not either of these Legislatures. The argument as Sir Harold Derbyshire pointed out in his judgment, overlooked the provision in Section 311, Sub-section (6) of the Act. which says: 'Any reference in this Act. to.... Acts or laws of the Federal or Provincial Legislature, shall be construed as-including a reference to an Ordinance made by-the Governor-General....' There is, thus, no substance in this objection, Assuming that the condition as to emergency is fulfilled, the Governor-General acting under 3, 72 may repeal or alter the ordinary law as to revisional jurisdiction of the High Court, just as the Indian Legislature itself might do.

54. Section 311(6) provides that any reference to a Provincial Act or laws Shall be construed as including a reference to an Ordinance made by a Governor. Section 88(2) also provides that an Ordinance promulgated under (hat section shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, and it appears to me that what the Provincial Legislature could do the Governor can do by Ordinance in a proper case. The Provincial Legislature could undoubtedly amend the existing Provincial law and that being so the Governor can do an by Ordinance if circumstances exist justifying the promulgation of such Ordinance.

55. It was however strenuously urged that legislation by Ordinance could only repeal or amend existing provincial law by repugnancy. An Ordinance, it was contended, could not directly repeal or amend a Provincial Act. It might do so however indirectly if its provisions were repugnant to existing Provincial legislation. It was only in such a case that existing Provincial legislation could be affected. Reliance was placed on a decision of this Court, Sib Nath Banerjee V. A. E. Porter A.I. E. (30) 1S4B Gal. 877 : 208 I, 0. 493 (SB)) which does lay down this proposition. The decision was affirmed in the Federal Court, Emperor v. Sib Nath Banerjee, (A.I.R. (80) 1943 P. o. 78: 45 cr., L, J. 841) but the majority in that Court left the matter open though the learned Judges appeared to incline to the view of this Court. The decision wag reversed by the Privy Council on other grounds and no reference is made to this point in the judgment of the Board. It was contended that there was nothing in Benoari Lai's case, 781. A. 67 : A.I.R. (32) 1946. C. 48:46 Cr. L. J. 889) which threw any doubt on the view of this Court as to be w far an Ordinance could repeal or amend existing legislation. Viscount Simon, L, C, it was urged, must have been referring to repeal or amendment by repugnancy in the passage in his judgment to which I have just made reference. In my view, however, it is clear that Viscount Simon was referring to direct repeal and amendment in his judgment and therefore it is not now possible to contend that an ordinance cannot directly repeal or amend existing legislation.

56. It was then contended that even assuming the Governor could amend existing Provincial legislation by Ordinance, be could not give retrospective effect to the Ordinance, It was argued that Clause (9) of Section 1 was clearly retrospective and so also was Sections By Clause (2) of Section 1 it is enacted that certain provisions in Section 2 which amended Section 16 (l), Security Act, are to be deemed to have taken effect on and from the date of the commencement of the Security Act, as if on that date the ordinance promulgated had been in force.

57. In my view, if a Governor can legislate in proper circumstances and such legislation is to have the same effect as if passed by the Legislature then it appears to me that the Governor is entitled to give retrospective effect to an Ordinance which he promulgates. It has 'been held by the Federal Court in the case of The United Provinces v. ML Atiqa Begum that the right to legislate retrospectively is inherent in the right to legislate. That being so, if the Governor has a right to legislate and such legislation has the effect of legislation by the Provincial Legislature then it appears to me that inherent in that right is a right to legislate retrospectively if such courage were necessary. This was the view of a Full Bench of the Bombay High Court in Prabhakar Kondaji Bhapkar v. Emperor A. l. B, (si) 1944 bom. 119 : 45 Or. t,. j, 604 (F. B.) and it has been fleeted by the Privy Council in Kumar Singh Chhagor v. Kmg. Emperor 781. AU99 : A.I.R. &) IMS P. 0. 169: 47 Cr. L. J. 988).

58. However, it was contended that the effect of promulgating Clause (9) of Section 1 of the Ordinance was to legislate during a period in which the legislature was in session. It was argued that the Governor has no right to promulgate an ordinance if the Legislature was in session and that being so, be could not by promulgating an ordinance when the Legislature was not in session give it effect as from a date when the Legislature was actually in session. As I have already stated by Clause (2) of Section 1 of the Ordinance the amendments made to Section 16 (l), Security Act, were to be deemed to take effect as and from the date of the commencement of that Act. Admittedly the Act came into force when the Legislature was in session. Therefore it is said that the ordinance amounts to legislation when the Legislature was sitting. To hold such an Ordinance valid, it was contended, would amount to permitting a Governor to do indirectly what be could not do directly. Section 88(1), Government of India Act, only empowers a Governor to legislate when the Legislature is not in session. This limitation would, it is said, be defeated if an Ordinance such as the present was held to be valid. The Privy Council has laid down that a Legislature cannot be permitted to do indirectly what it cannot do directly. be and of Trustees of the Lethbridge Northern Irrigation District t. Independent Order of Foresters, 1940 A. 0.513 : l940)-2 ALL E. E. 220. This is really begging the question because the argument assumes that such retrospective legislation is invalid.

59. In my view if the Governor has power, as I hold be has, to legislate retrospectively, then it is immaterial whether the legislation is made to take effect from a time when the Legislature was in session. The important point of time is the date of the promulgation of the Ordinance If the Legislature was not then in session then the Ordinance was valid, no matter what retrospective effect it had. It may be that the Governor should not, except in oases of grave emergency, legislate retrospectively, but such is a question of policy which this Court cannot take into consideration. Dealing with this question in King-Emperor v. Benoarilal Sarma, 72 I. A. 57 (A.I.B. (32) 1945 P. 0. 48: 46 Cr. L. 3. 589) Viscount Simon L. C. at page 70 observed:

With the greatest respect to these eminent Judges, their Lordships feel be und to point oat that the question whether the Ordinance is intra vires or ultra virus does not depend on considerations of jurisprudence o of policy. It depends simply on examining the language of the Government of India Act. and of comparing to legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it la better, if circumstances permit, to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged With a given crime; bat that is a question of policy, not of law...Again and again this Board bag insisted that in construing enacted words we are not concerned fit.{j the policy involved or with the results, injurious or otherwise, which ma; follow from giving effect to the language used.

60. Whether such an ordinance should be passed or not is not a matter for this Court. We are merely concerned with the construction of the words used in the Ordinance and in the Security Act and I can see nothing in the Ordinance compelling me to hold that it is invalid by reason of the retrospective effect given to it.

61. Lastly, it was urged that as the Security Act. bad received the assent of the Governor-General, no Ordinance or legislation amending such Act could be, valid without previous instructions of the Governor-General as required by Section 88(1), Government of India Act. The contention was that the assent of the Governor. General was given after consideration of the provisions of the Act and it might well be that the assent would have been refused if the Act stood origin, ally as now amended. As I understood, the contention was that any amendment of an Act which had received the Governor-General's assent would be wholly invalid if the amending legislation had not received the Governor-General's assent, or was promulgated without his instructions, no matter whether the amending Act dealt with matters wholly within the Provincial Legis-lathe List and which in ordinary circumstances would not require the assent of the Governor. General.

62. It is to be observed that Provincial legislation on matters in the Concurrent List is not ultra vires. If there is no Dominion law or any existing law dealing with such matters then the Provincial legislation is perfectly valid. The difficulty only arises if there is Dominion legislation or existing law in respect of the same matters. If there is then the Provincial legislation where repugnant to such Dominion law or existing law is void unless the Provincial legislation has received the assent of the Governor. General in which case it prevails over the Dominion legislation or the existing law. This is clear from Sub-sections (l) and (2) of Section 107, Government of India Act. It therefore cannot be said that the impugned Ordinance is ultra vires even if it dealt with matters in the Concurrent List. It might be void for repugnancy or a part of it might be so void, but nothing more.: As I have already expressed my opinion that if the matters contained in the impugned ordinance relate to items in the Provincial List no-question of re-pugnancy can arise and therefore it is immaterial whether the Governor had or had not received instructions from the Governor-General before this Ordinance was promulgated.

63. Holding as I do that this Ordinance is valid and intra vires the difficult question which arose ill Jyoti Barn's case (Misc. case No. 57 of --1948) and which had been referred to this Full ' Bench does not arise. The question whether the Court could enquire into the sufficiency of the grounds upon which the Provincial Government1 could make an order of detention could only arise if the words 'on reasonable grounds'' appeared in Section 16 (l) of the Act. The amending Ordinance strikes out those words and therefore an order under Section 16 (l) is now valid if the Provincial Government is satisfied that it is necessary to make such an order.. The respective orders detaining these two petitioners recite that the Governor was satisfied that it was necessary to make such orders and this Court cannot substitute itself for the Governor and consider whether it would be satisfied that there were sufficient or good reasons for making the orders. That being so, it is unnecessary for this Full Bench to deal with the two questions referred to it as the questions no longer arise and are of no importance whatsoever. The section in question having been amended the law now is that the existence of reasonable grounds in fact for an order is no longer necessary.

64. In both the petitions it is suggested that the orders of the Local Government were mala fide and not honestly made under the provisions of the Act, It is a well-known principle of law that abuse of power is no exercise of power and it has been repeatedly held with the approval of the Privy Council that, an order made mala fide under powers given by an Act, Ordinance or rule is no exercise of such power. This was conceded by their Lordships of the House of Lords in the case of Liversidge v. Sir John Anderson, (1942) A. C. 206 : 1941-3 ALL. E. Rule 388). If I were satisfied that the orders in these cases were mala fide I should have no hesitation in holding the orders to be invalid. But there is no material upon which I could hold that the orders are mala fide. be to the petitioners are communists and the communist party has been declared to be an illegal organisation in this province. The petitioners suggest that the Provincial Government are anxious to remove them from the political field mainly for two reasons |n the first place it is suggested that they take a prominent part in the All-India Trade Union Congress which is an organisation opposed to the Indian National Trade Union Congress which is said to be sponsored by the Congress Party and by the Provincial Government which has of course the support of the Congress Party. In the second place it is said that a number of the present Ministers are without seats in the Provincial. Assembly and it is suggested that the petitioners have been detained in jail to prevent them taking part in possible bye-election for. the return of the Ministers at present without seats in the Legislative Assembly. Apart from these allegations in the petitions there is no material before us upon which we could hold that such were the reasons for these orders. Even if the Court were suspicious it could not hold the orders to be mala fide. Suspicion by itself will not do. Facts must be proved which establish that the orders were mala fide or made maliciously. I can see nothing in the facts alleged in the petitions which would compel me to infer that these orders were made in bad faith. The allegations are too general and vague and it would be highly dangerous to infer mala fides from them, That being so, it is impossible to hold that these orders were dishonestly or maliciously made and therefore are invalid.

65. Lastly it was urged that the form of the orders suggested that they were not made honestly and bona fide. The terms of the orders follow closely the words of the amended Section 16 (l), Security Act. Following slavishly the words of an Act. or rule in an order made thereunder was severely criticised in Keshav Talpade v. King-Emperor 1943 F. C. E. 49 : A.I.R. (30) 1948 F. C.I: 44 cr. L. J. 558) by their Lordships of the Federal Court. This case was held to be wrongly decided by their Lordships of the Privy Council in King-Emperor v. Shib Nath Banerjee . Their Lordships however expressed no opinion upon the form of the order and there is nothing to indicate whether their Lordships approved or disapproved of the observations of the Federal Court in Keshav Talpade's case . The orders in the present case recite that they are made with a view to pre. venting the detained persons from doing any subversive act. The orders are similar to the order made by the Home Secretary in England which led to Liversidge v. Sir John Anderson, (1943) A. C. 206 : 1941-8 ALL. E. B. 838). That order followed the wording of Regulation 18B under which it was made and their Lordships in the House of Lords found nothing objectionable in the form of the order. In my view the observations of the Federal Court in Keshav Talpade's case even if they can still be regarded as laying down good law have no application to the present cases. In Talpade's case, 1948 F. C. Rule 49 : A.I.R. (30) 1948 F. 0.1: 44 Cr. L. J. 568) all the grounds upon which an order could be made under the Defence of India Rules were inserted in the detention order. The order in the present oases resembles more closely the order in Liversidge case, 1942 A. C. 206 : 1941-3 ALL E .R 338) and is therefore in my view unobjectionable and valid

66. The petitions therefore fail and are dismissed. The rule in each case is discharged. I should grant a certificate under Section 205 (l), Government of India Act.

Mitter, J.

67. I agree with my Lord the Chief Justice.

Sen, J.

68. I concur in the views expressed-by my Lord the Chief Justice, and cannot usefully add anything more.

Clough, J.

69. I agree with my Lord the Chief Justice.

Chatterjee, J.

70. The cases of two detenus detained under the West Bengal Security Act, 1948, were argued before the Pull Bench.

71. The first detenu, Mr. Hiren Mukherjee, is a member of the English Bar and is an advocate of this Court. He is a Professor of the Surendra-nath College and is a Lecturer in the University of Calcutta and is connected with journalism. be to the applicants allege that the two detenus, Mukherjee and Sen Gupta, are members of the Communist Party and have been connected with the All-India Trade Union Congress, popularly known as 'A. 1. T. U. C,' which has been in existence for several years. A rival organisation has been recently started under the auspices of the Indian National Congress known as the Indian. National Trade Union Congress, also called the 'I. N. T. U. C.' It is alleged that the latter organisation is being controlled by some of the Ministers of this province as well as by the leading members of the West Bengal Legislative Assembly belonging to the Congress Party. Finally the charge is made that the detentions have been improperly made with a view to weed-out political rivals and to facilitate the elections of some Ministers who would lose their posts unless they were elected to the Legislature within 6 months of their appointment.

72. On 31st May 1948, my learned brothers-G. N. Das and Sinha JJ. delivered their judgments in the case of Mr. Jyoti Basu (Misc. case No. 37 of 1948). be to the learned Judges came to the conclusion that the principles of construction applied by the House of Lords in the case of Liversidge v. Sir John Anderson, (1942) A.C. 206; (1941.8 ALL E. R 338) were applicable and they held that the detenu was not illegally or improperly detained and dismissed the application which had been filed under Section 491, Criminal P. C.

73. On 24th and 25th June 1948, His Lord, ship the Chief Justice and S. R. Das, J. heard an application under Section 491 presented by Sm. Kanaklata be se on behalf of another detenu, Mr. Arun be se. By their judgment, dated 30tti June 1948, the learned Chief Justice and S. B. Das, J. differed from the views expressed by G. N. Das and Sinha JJ. The learned Chief Justice held that the wording of Section 16, West Bengal Security Act, was materially different from the wording of Regulation 18B of the Defence (General) Regulations, 1989, which had been interpreted by the House of Lords in the Liversidge case, (1948 A. C. 806: 1911-3 all. s. b. 338). His Lordship held that there was no material before the Court which would justify it in holding that the safety of the State of India was involved when the West Bengal Security Act was passed. The main ground for the decision in the Liversidge case (1912) A. 0, 206 : 1941-8 ALL B. B. 838), namely, the grave emergency facing the State was absent in the case before them and thus there is a material difference between the two cases. S. E. Das. J. set out seriatim the grounds for regarding the judgments of the Division Bench in Mr. Jyoti Basil's ease, Misc. Case no. 67 of 1948, as open to criticism. The learned Chief Justice and S. B. Das J. came to the conclusion that on a correct interpretation of Section 18 the Court has the right to enquire into the grounds upon which an order under that section is made. They accordingly differed from the decision of the Division Bench in Jyoti Basil's ease ( Misc. case No. 67 of 1948) and referred the following questions for consideration by a Full Bench:

(1) Can a Court consider and determine the question whether the satisfaction of the Provincial Government under Section 16, West Bengal Security Act. 1948 (West Bengal Act III [3] of 1948), is based on grounds which in themselves are reasonable or which appear reasonable to the Court ?

(2) is the case of Jyoti Basu v. The Province of Went Bengal, (Misc. Case No. 54 of 1948) rightly decided ?

In view of such important questions, involving as they do the liberty of the subjects, it was extremely desirable that the points of law formulated above should be authoritatively decided by this High Court and this could only be done by a Full Bench which was immediately con. Stituted by the Chief Justice under the Rules of this Court and the Full Bench was to sit, as it did, on 5th July 1948.

74. On 8rd July 1948, the Governor of West Bengal promulgated an Ordinance, the West Bengal Ordinance NO. VIII [s] of 1948. It is called the West Bengal Security (Amendment) Ordinance, 1948. This Ordinance was promulgated in exercise of the powers conferred on the 'Governor of a Province by Sub-section (l) of Section 88, Government of India Act, 1935, Under that section the Governor of a Province can promulgate an Ordinance when the Legislature of that Province is in recess, and the Governor is satisfied that circumstances exist which render it necessary for him to take Immediate action. There are two recitals in this Ordinance which are as follows:

Whereas it is expedient and necessary to amend the West Bengal Security Act. 1948, for the purpose of removing certain doubts which have arisen as to the interpretation of Section 16 thereof and for certain other purposes hereinafter appearing ;

And whereas the West Bengal Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.

76. The Ordinance purports to effect a very vital amendment in Section 16 (1) of the Act. The section as it originally stood empowered the Provincial Government to make an order of detention 'if it is satisfied on reasonable grounds with respect to any particular person that with a view to preventing him from doing any subversive Act. it is necessary to do so.' The words 'on reasonable grounds' have been omitted from Section 16 (l) of the Act. Other amendments have been made in Section 17 of the Act, and a new section called Section 18A has been introduced. The amendment made in Section 16 (l) of the Act has been given retrospective effect. But what is even important is that the High Court's jurisdiction has been taken away. Under the provisions of sections of the Ordinance, no order for detention shall be impugned on the ground that the Provincial Government or the officer concerned had no reasonable ground for apprehending the detenu. This is effected by B. 8 which runs as follows:

For the avoidance of doubt it is hereby declared that no order heretobefore made against any person under Sub-section (1) of Section 16 West Bengal Security Act, 1948, shall be deemed to be invalid or shall be called in question on the ground that at the time of making the order the authority making it had no reasonable grounds.

In substance the view of the Division Bench in Jyoti Basil's case ( Misc. Case no. 67 of 1918) has been given legislative sanction by virtue of executive legislation and the Full Bench is pre. eluded from deciding the questions referred to it by the Division Bench consisting of the learned Chief Justice and S. B. Das, J.

76. Various arguments have been advanced before us attacking the validity of this ordinance. It is attacked, firstly, on the ground that the Security Act itself is ultra vires having encroached on the Federal Legislative list, i.e., List No, I, in sch. VII to the Government of India Act. Secondly, the ordinance was not promulgated in the good faith. Thirdly, no circumstances as contemplated by Section 88, Government of India Act. existed at the date of its promulgation. Fourthly, the ordinance is repugnant to an existing law, the Criminal Procedure Code, and the previous instruction of the Governor-General was essential under the proviso to Section 98 (l). Constitution Act, and in its absence the ordinance is inoperative.

77. These were the arguments of Mr. Niren De, learned Counsel for Hiren Mukherjee. For the other-detenu Mr. Sadhan Gupta argued that an ordinance cannot amend an Act of the Legislature and in any event the ordinance is ultra vires because it alters the law and gives it retrospective effect to a date when the Provincial Legislature was actually in session and in such circumstances the Governor has no power to promulgate this ordinance. Assuming that the Governor has power by an ordinance to repeal or amend an Act. passed by the Legislature, Mr. Gupta contends that the Governor cannot do it directly and can only do it by enacting a piece of repugnant legislation. Mr. Gupta referred to the judgments of Mitter and Sen JJ. in the case of Shib Nath Banerjee and, others v. A. B. Porter and Ors., 47 C. W. N. 802: A.I.R. (80) 1943 cal. 877 (S.B.). In that case the learned Judges held that when there are two legislative be dies be to deriving their authority from the same paramount Legislature and equally competent to legislate in the same field, one of such be dies cannot directly repeal or amend laws passed by the other, unless the power to do so has been expressly conferred by the authority which created the legislative be dies.

78. Unfortunately for the detenus practically all the points urged on their behalf are covered by a series of Privy Council judgments. In the case of King-Emperor v. Benoari Lai Sarma and Ors. , Viscount Simon L, C. held that an ordinance of the Governor-General promulgated under Section 72 of Sob. 9 to the Government of India Act may repeal or alter the ordinary law just as the Indian Legislature itself might do. Section 26 of Ordinance 2 of 1943 excluded the revisional powers of the High Court and as such it was repugnant to the Code of Criminal Procedure. Yet the Judicial Committee held that the ordinance was neither ineffective nor ultra vires On principle there is no difference between an ordinance by the Governor-General and an ordinance by the Governor. Under B. 72, sch. 9, Constitution Act. the Governor-General's Ordinance was given the like force of law as an Act. passed by the Indian Legislature. Under Section 88(2) of the same Act. an ordinance promulgated by a Provincial Governor shall have the same force 'act effect as an Act. .of the Provincial Legislature assented to by the Governor.

79. Mr. Gupta points out with some cogency that the judgment of Lort Watson in the case of Attorney-General for Ontario v. Attorney-General for the Dominion, 1896 A. C. 348. : 65 L. J. P. C. 26) was not cited before the Judicial Committee in Benoarilal's ease : nor went the judgments of the Special Bench of this Court in Shibnath'x case : A.I.R. (30) 1948 cal. 877: 208 I. c. 498 (S.B.)) considered by the Judicial Committee. It is for the framers of the Indian Constitution to decide whether the judgments of the Judicial Committee should be placed on the same footing as those of the House of Lords and whether they should be treated as merely persuasive authorities or as binding precedents. But this High Court to-day is be und by the pronouncements of the Judicial Committee and in view of the observations of the Judicial Committee even its obiter dicta are binding on the Courts of India. Having regard to Lord Simon's judgment there is no escape from the conclusion that an ordinance promulgated by the Governor can repeal or alter an Act of the Provincial Legislature.

80. In the case of Kumar Singh Chhajor v. King-Emperor , the validity of Ordinance no. xix of 1943 which gave retrospective effect to the sentences passed by Special Courts under Ordinance no. n of 1942 came up foe consideration. Ordinance No. n had been declared ultra vires by the Federal Court. The Judicial Committee held that Ordinance No. xix was valid and the Governor-General's Ordinance could take away the High Court's powers of revision under Sections 435 and 439, Criminal P. C.

81. The other arguments advanced on behalf of the detenu Mukherjee are covered by two recent judgments of the Judicial Committee, Megh Bai and Anr. v. Allah Bakhia, 74 I. A. 12: 51 C. W. N. 523 : A.I.R. (34) 1947 P. 0. 72) and Prafulla Kumar Mukherjee and Ors. v. Bank of Commerce, Ltd., Khulna, 74 I. A. 23: 51 C. W. N. 599 : A.I.R. (84) 1947 F. C. 60.) In the first case which dealt with the Punjab Restitution of Mortgaged Land Act. Lord Wright held that Section 107, Government of India Act, 1935, had no application in a case where the. province was acting wholly within its powers under List II, i, e., the Provincial List, without relying on any power conferred on it by the Concurrent List (List III) and in such a case there was no room for the exercise by the Governor-General of his residuary power under Section 104. In the second case which dealt with the Bengal Money-lenders' Act, Lord Porter held that the said Act. dealt in pith and substance with 'money-lending' and was therefore wholly within the powers of the Provincial Legislature although it trenched upon matters in the Federal List. Lord Porter pointed out that it is not possible to make a clean out between the powers of the various Legislatures. They are be und to overlap from time to time. The rule as to 'pith and substance' which has been evolved by the Judicial Committee whereby an impugned statute is examined to: ascertain its true nature and character for the purpose of determining in which particular list the legislation falls, applies . equally to Indian as well as to Dominion legislation. The extent of the invasion by the Provincial Legislature into subjects enumerated in the Federal List is material for the purpose of determining what is the pith and substance of the impugned Act. Therefore, we have got to look into the pith and substance of the impugned legislation, and, if as a whole it falls within the power given to the province by any of the items in the Provincial List without any necessity to invoke any power from the Concurrent List then the legislation is intra vires the Provincial Legislature and no question of repugnancy under Section 107, Constitution Act, can arise.

82. Mr. Sadhan Gupta on behalf of the detenu Das Gupta advanced the argument that the Governor had really usurped the power of the Provincial Legislature and infringed Section 88, Constitution Act. Section 88 is in the following terms:

(1) II at any time when the Legislature of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinance as the circumstances appear to him to require:

Provided that the Governor shall not, without instructions from the Governor-General promulgate any such ordinance if an Act of the Provincial Legislature containing the same provisions would under this Act. have been invalid unless, having been reserved for the consideration of the Governor-General, it had received the assent of the Governor-General.(2) An ordinance promulgated under this section ebsll have the same force and effect as an Act. of the Provincial Legislature assented to by the Governor.

83. Mr. Gupta's contention is that the Governor can only legislate when the Legislature is not in session. The present ordinance has altered Section 16, Security Act. and has given it retrospective effect. The amendment made by the ordinance is to be operative from the date of the commencement of the Act. On that date .the Legislature was in session. That means that the Governor is in effect legislating at a time when the Legislature of the province was in session and therefore the Governor himself could not legislate at all.

84. The learned Advocate. General contends that Section 88(1) prescribes the conditions under which the Governor can promulgate an Ordinance. The conditions are two-fold; (a) the Legislature must not be in session and (b) the Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. The Advocate. General con- tends that be to the conditions prescribed by Section 88(1) for the exercise of the legislative power of the Governor by means of an Ordinance have been complied with. The effect of the exercise of such power is contained in Section 88(1) and when an Ordinance has been validly promulgated under Section 88(1) it has the same force and effect as that of an Act of the Legislature.

85. It is now settled law that there is no prohibition against retrospective legislation and within their own sphere the powers of the Legislature are:as large and ample as those of the Parliament itself. Queen v. Bur ah (1878) 3 A. 0, 889 : 4 cal. 172) and United, Province v. Mt. Atiqa, Begam. , In my opinion the learned Advocate-General's contentions are correct and should be upheld. I agree with his Lordship the Chief Justice that the impugned Ordinance falls whithin items l and 2 of the Provincial List (List II). On the authority of the Privy Council in the Punjab case and the Bank of Commerce case this legislation could be enacted by the Provincial Legislature. Hence, the Governor under Section 88, Constitution Act was authorised to promulgate it by means of an Ordinance, and there is, therefore, no question of taking the assent or the instruction of the Governor-General.

86. Mr. Gupta has contended that on principle an authority cannot do that indirectly which it is prohibited from doing directly and that this Ordinance was a colourable device to defeat the provisions of Section 88(1). He referred to the judgment of the Judicial Committee in be and of Trustees of the Lethbridge Northern Irrigation District v. Independent Order of Fores, ten 1940 a. c. 613 : 1940.2 all b. b. 220.) But the effect of Section 88 Sub-sections (l) and (2), is that the Governor is directly authorised to promulgate an Ordinance with retrospective effect and there is no qualification or limitation upon that authority.

87. In view of the recent pronouncements of the Judicial Committee in the oases cited before us we are constrained to hold that be to the Security Act and the Ordinance are intra vires. Section 16, Security Act thus has been amended with retrospective effect. The words of that sec tion, as it now stands, make it clear that mere satisfaction of the Provincial Government is sufficient and such satisfaction need not necessarily be founded on reasonable grounds before a valid order can be made. In any event by' virtue of Section 3 of the Ordinance this High Court is deprived of the jurisdiction to question the validity of any order of detention on the ground of absence of reasonable' grounds. This practically makes proceedings under Section 491, Criminal P. C. illusory. It would be perhaps more satisfactory for all concerned to enact that no order of detention under the West Bengal Security Act can be questioned in any Court of law.

88. On the question of mala fides the materials placed before us create suspicion but it is impossible to hold that there has been any colourable exercise of the power of detention. There is no evidence that any particular Minister had any animus against either of these two detenus or that they have been detained in jail because they were prospective rival candidates of any of the Ministers at an impending bye-election.

89. learned Counsel appearing for the detenus strongly criticised the manner in which this High Court has been dealt with by the Executive. The Governor-General of India behaved in a different manner in the year 1943 when Ordinance no. II of 1942, namely, the Special Criminal Courts Ordinance, was called in question. In the case of Benoari Lai Sharma and Ors. v. Emperor : AIR1943Cal285 a Special Bench of this Court consisting of Derbyshire C. J,, Khundkar and Sen JJ. held the Ordinance to be ultra vires the Governor-General of India. An appeal was then taken to the Federal Court. The hearing lasted for some days and on 4th June 1943 the Court by a majority (Varada chariar C. J. and Zafrulla Khan J,, Rowland J, dissenting) upheld the decision of the Special Bench of this Court and declared ordinance II ultra vires.

90. In the place of the Ordinance thus pronounced invalid another Ordinance, namely, ordinance (XIX [19] of 1943), was promulgated by the Governor-General on 5th June 1943. That Ordinance was enacted on the basis that the Government was be und by the decision of the Federal Court; and it accordingly strove to meet the situation thus created by fresh legislative effort in the shape of another Ordinance, There was no attempt to prevent the Court from pronouncing upon the important questions of law involved. It was recognised that the Court had seisin of these questions and must not be hindered in the discharge of its duty to decide them.

91. It could have accorded with the precedent I have just alluded to, had the Ordinance which has been called in question before us was not promulgated so as to make it impossible for this Full Bench to decide the grave questions referred to it. The Ordinance begins by reciting that certain doubts had arisen as to the interpretation of Section 16, West Bengal Security Act. 1948. Those doubts were created by the conflict. ing views taken by two Division Benches of this Court. The reference to this Full Bench cast upon us the duty of resolving these doubts. It is strange and perhaps without any precedent, that anything should be done to render the deliberations of the Full Bench infructuous in that regard.

92. We cannot agree with the contention that authority so exercised constitutes a fraud, upon the Statute. Yet it is a cogent comment that nothing should be done which may tend to bring the authority or the administration of the law into disrespect. The Court has to discharge the function of deciding whether the statutory mandate had been exceeded and nothing should be done to make it difficult or impossible for the highest Court of the Province to act as the great umpire on constitutional issues or to undermine the authority of the Court as the protector of the rights which are guaranteed to the citizens by the law of the land.

93. The attitude to be expected of the executive towards the law of the land and towards those who have the duty to expound it has more than once been referred to in the Supreme Courts in Great Britain during recent times, Two instances may suffice as illustrative of the principle for which I contend. On I7th December-1915 Lord Beading had to deal with two Rules nisi granted upon an information in the nature of a quo warranto against two members of His Majesty's Privy Council [The King v. Speyer and Anr. (1916) 1 K. B. 596 : 85 L. J. K. B. 680). It had been suggested in argument that it would be easy, by executive action on the part of the Servants of the Crown, to circumvent the Court's judgment, should the Rules be made absolute. Lord Beading, Lord Chief Justice of England, dealt with that suggestion in a passage I think it well to quote:

Although it may be interesting and useful for the purpose of testing the propositions under consideration to assume the difficulties suggested by the Attorney-General,- none of them would in truth occur. This is the King's Court; we sit here to administer justice and to interpret the laws of the realm in the King's name. It is respectful and proper to as3ume that once the law is declared by a competent judicial authority, it will be followed by the Crown.

94. It so happened that but a few months earlier, the conduct of the Government of .Nova Scotia came up for scrutiny in the case reported as the Eastern Trust Company v. McKenzie, Mann & Co. Ltd. 1915 A.C. 760 : A.I.R. (2)1915 P.C. 106). The case came up before a particularly strong Board of the Judicial Committee on appeal from the Supreme Court of Canada. From the judgment of their Lordships in that case I venture to quote the following passage which appears at p. 759 of the Report:

It is the duty of the Crown and of every branch of the executive to abide by and obey the law. If there is any difficulty in ascertaining It the Courts are open to the Grown to sue, and it Is duty of the executive In oases of doubt to ascertain the law, in order to obey it, not to disregard it.

95. The authorities responsible for framing and promulgating this impugned Ordinance should have waited until the final opinion of this Court bad been pronounced and they could 'do what was done by the Governor-General of India in 1943, namely, to accept the decision of the Court and, if necessary, to en Act. suitable legislation in view of the correct legal position then authoritatively decided by the tribunal competent to determine the same.


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