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Benoari Lal Sarma and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal285
AppellantBenoari Lal Sarma and ors.
RespondentEmperor
Cases ReferredSalig Ram v. Emperor
Excerpt:
- derbyshire, c.j.1. this rule was issued upon the district magistrate of jessore to show cause why the conviction of the applicant and 14 other persons should not be set aside. the accused persons are all policemen and, according to the evidence, were directed to secure the person of a fellow policeman who was said to have become mentally deranged and instead of obeying orders they disobeyed them and behaved in a riotous manner. the district magistrate, acting under powers conferred upon him by the government of bengal, directed a special magistrate, appointed under ordinance 2 of 1942, to try the case with the result that the special magistrate convicted the 15 applicants of offences under sections 147, 149 and 832, penal code, and also under rule 38(1)(a) and 5)/rule 34 (6b)(c) of the.....
Judgment:

Derbyshire, C.J.

1. This rule was issued upon the District Magistrate of Jessore to show cause why the conviction of the applicant and 14 other persons should not be set aside. The accused persons are all policemen and, according to the evidence, were directed to secure the person of a fellow policeman who was said to have become mentally deranged and instead of obeying orders they disobeyed them and behaved in a riotous manner. The District Magistrate, acting under powers conferred upon him by the Government of Bengal, directed a Special Magistrate, appointed under ordinance 2 of 1942, to try the case with the result that the Special Magistrate convicted the 15 applicants of offences under Sections 147, 149 and 832, Penal Code, and also under Rule 38(1)(a) and 5)/Rule 34 (6b)(c) of the Defence of India Rules, committing a prejudicial act. He passed no sentence in respect of the offences under the Penal Code, but as regards the offences under the Defence of India Rules he sentenced all the accused each to two years rigorous imprisonment. The proceedings were taken under ordinance 2 of 1942, Section 26 of which prohibits the interference by this Court with either the proceedings or the convictions. However, the convicted persons contend that the ordinance itself is ultra vires the law-making powers of the Governor-General and ask us to hold as such and, thereupon, to exercise our revision jurisdiction and set aside the convictions or, alternatively, to reduce the sentences.

2. The Magistrate was a First Class Magistrate specially designated as a Special Magistrate under the ordinance. The ordinance itself was made on 31st December 1941 and published in the Gazette of India on 2nd January 1942. It recites that whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts, the Governor-General in the exercise of powers conferred upon Mm by Section 72, Government of India Act, 1915, as set out in Schedule 9, Government of India Act, 1935, makes and promulgates the ordinance. Section 1(2) states that the ordinance applies to the whole of British India : Sub-section (3) states that it shall come into force in any province only if the Provincial Government being satisfied of the existence of an emergency arising from any disorder within the province or from a hostile attack on India or on a country neighbouring on India Dr from the imminence of such an attack, in notification in the official Gazette, declares it to be in force in the province, and

shall cease to be in force when such notification is rescinded. Section 3 provides:

Courts of criminal jurisdiction may be constituted under this ordinance of the following classes, namely: (i) Special Judges; (ii) Speoial Magistrates; (iii) Summary Courts.

Section 4 provides:

The Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (hereinafter in this ordinance referred to as the Code).

Section 5 provides:

A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct, or as may be transferred to him for trial under the provisions of Section 25A.

Section 6 provides:

A Special Judge may take cognizance of offences without the accused being committed to his Court for trial, and, in trying accused persons, shall follow the procedure prescribed by the Code for the trial of warrant oases by Magistrates : Provided that a Special Judge shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material, and shall not be bound to adjourn the trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice. (2) In matters not coming within the scope of Sub-section (1) the provisions of the Code, so far as they are not inconsistent with this Ordinance, shall apply . to the proceedings of a Special Judge; and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Sessions.

3. Section 7 provides: 'A Special Judge may pass any sentence authorised by law.'

Section 8 provides:

If in any proceedings before a Special Judge - (a) a person convicted is sentenced to, death, or to transportation for life, or to imprisonment for a term of seven years or more, or (b) though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought to be reviewed, the proceedings shall be submitted for review by a person nominated in this behalf by the Provincial Government, which person shall be chosen from the Judges of the High Court having jurisdiction over the area for which the Special Judge is appointed, and the decision of that person shall be final.

4. There are provisions for the setting up of Summary Courts but with these we are not concerned. Section 26 provides:

Notwithstanding the provisions of the Code (Criminal Procedure) or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any ease from any such Court, or to make any order under Section 491 of the Code or to have any jurisdiction of any kind in respect of any proceedings of any such Court.

Section 27 provides that:

The provisions of the Code (Criminal Procedure) and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by special criminal Courts constituted under this Ordinance.

5. In this case we are concerned with the jurisdiction of Special Magistrates. Section 9 provides that:

Any Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not leas than two years may be invested by the Provincial Government with the powers of a Special Magistrate under this Ordinance.

Section 10 provides:

A Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct,

or transfer to him for trial under the provisions of Section 25A. Section 11 prescribes the procedure of the Special Magistrates. Section 12 (1) provides:

A Special Magistrate may pass any sentence authorised by law, except a sentence of death or of transportation or imprisonment exceeding seven years.

6. Section 12(2) provides that the Special Magistrate may, if he thinks his powers of punishment are insufficient, refer the case to a Special Judge who has greater powers of punishment. Section 13 (1) provides:

Where a Special Magistrate passes a sentence of transportation or imprisonment for a term exceeding two years, an appeal shall lie to the Special Judge having jurisdiction in the area or, if there is no Special Judge for the area, to the High Court in a Presidency town and elsewhere to the Court of Sessions.

Section 14 provides:

If any question arises whether, under any order made under Section 5 or Section 10, an offence is triable by a Special Judge or a Speoial Magistrate, the question shall be referred for decision to the authority which made the order and the decision of that authority shall be final.

7. By notification in the Calcutta Gazette the Ordinance was brought into operation in the Province of Bengal on 3rd April 1942, and by an announcement in the Calcutta Gazette on the same day the District Magistrates of certain districts near the coast and near the borders of Burma were given the powers of a servant of the Crown set out in Sections 5 and 10 of the Ordinance. This did not include Jessore - the District from which this matter comes. However, on 25th June 1942 in the Calcutta Gazette there was the following announcement with regard to Special Magistrates.

No. 9578P. - 25th June 1942 In exercise of the power conferred by Section 9, Special Criminal Courts Ordinance, 1942 (Ordinance No. II of 1942), the Governor is pleased to invest all Presidency Magistrates in the Presidency town of Calcutta and all Magistrates of the first class in the Districts of.. Jessore have exercised powers as suoh for not less than two years, with the powers of a Special Magistrate under the said Ordinance.

8. On the same day (25th June 1942) there appears this Gazette announcement:

No. 9579P. - In exercise of the power conferred by Section 10, Special Criminal Courts Ordinance, 1942 (Ordinance No. II of 1942), the Governor is pleased to empower the Chief Presidency Magistrate in the Presidency-town of Calcutta, the District Magistrates of the following Districts.. Jessore to direct within their respective jurisdictions, by general or special order in writing, which offences or classes of offences or cases or classes of cases other than offences or cases involving the offences punishable under the Indian Penal Code with death shall be tried by a Special Magistrate.

9. In the case in question the District Magistrate directed the Special Magistrate to try this case; the effect of this case being tried under the Ordinance is (if the Ordinance is valid and the requirements prescribed by the Ordinance have been complied with) to prevent the convicted persons from appealing to any appellate tribunal, whether in the High Court or elsewhere, and also to prevent the High Court exercising its revisional jurisdiction. The contentions of the accused persons are that the Ordinance is invalid in (1) it delegates legislation and (2) that it ousts the jurisdiction of the High Court in criminal matters contrary to Section 223, Government of India Act, 1935, and (3) that it leaves it to the District Magistrate to say whether the accused shall have the rights of appeal or revision which the ordinary law provides.

10. The case is an important one and has been argued at great length. The first contention of the applicants was that the Ordinance itself was a piece of delegated legislation in that the Governor-General had left it to the Local Government to say when the Ordinance should be brought into operation in Bengal. Reference was made to Section 72, Government of India Act, 1985, in this connexion. Section 317, Government of India Act, 1935, provides:

The provisions of the Government of India Act (1915) set out, with amendments consequential on the provisions of this Act, in Schedule 9 to this Act.. shall, subject to those amendments, continue to have effect notwithstanding the repeal of that Act by this Act.

11. Schedule 9 contains Section 72, Government of India Act, 1915, under which the Ordinance is made. Section 72 provides:

The Governor-General may, in case of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.

12. By the India and Burma (Emergency Provisions) Act, 1940, the words 'for the space of not more than six months from its promulgation' are to be omitted. The arguments raised by the applicants were that although under Section 72, Government of India Act, the Governor. General was the judge of the emergency which gave him authority to make ordinances, he could not delegate that judgment to the Bengal Government so as to enable them to say when the Ordinance should be brought into operation. Another argument was that there were two emergencies: (1) when the Ordinance was made and (2) when it was brought into operation in Bengal and that consequently the second emergency is not one contemplated by Section 72. In my view, there is no substance in this contention. An emergency arose in September 1939 when war with Germany was declared. This was announced in the Gazette of India Extraordinary dated 3rd September 1939 as follows:

In pursuance of Sub-section (1) of Section 102, Government of India Act, 1935, I, Victor, Alexander, John Marquess of Linlithgow, Governor-General of India, by this proclamation declare that a grave emergency exists whereby the security of India is threatened by war.

13. The same day war was proclaimed between His Majesty and Germany. That emergency continues; in December 1941 it grew graver because Japan declared war on the British Empire and joined Germany and began to invade Burma. Anything might have happened sooner or later, and steps had to be taken to deal with whatever might happen., The Governor-General, taking a conspectus of the situation with the assistance of his military advisors, was bound to envisage a possibility of an attack being made upon India and took such measures that he might deem proper in respect of that attack. The emergency at that time demanded action on his part and one of the steps he took was to make and promulgate this Ordinance by setting up Special Courts to deal with the situation that might arise later. That emergency did not cease, it con. tinued and grew in intensity until the Japanese were very near the border of India and Burma. That stage of emergency being reached - it was the same emergency but more accute - it became the duty of the Government of Bengal to consider whether it ought to act under the powers conferred upon it. The Government of Bengal then on 8rd April 1942 brought into operation the Ordinance. This kind of conditional legislation is well-known and recognised in the Courts since the case in R. v. Burah (78) 4 Cal. 172 The next contention of the applicants was that Section 26 of the Ordinance had no authority to take away the revisional and appellate powers assumed to the High Court under Section 223, Government of India Act, 1935. Section 223, Government of India Act, provides:

Subject to the provisions of this part of this Act, to the provisions of any Order in Council made under this or any other Act to the provisions of any Act of the appropriate Legislature enacted by virtue of the powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court shall be the same as immediately before the commencement of Part 3 of this Act.

14. Previous to 1935 when the Act was passed, and previous to the making of the Ordinance, the High Court had revisional jurisdiction over the Magistrates' Courts in Jessore. It is said that this could not be taken away by a Governor General's Ordinance under Section 75 as the Governor. General's Ordinance was not an act of the appropriate Legislature under that Act. It was argued that 'Legislature' only meant 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 that the Governor-General making the Ordinance was not either of these Legislatures. That contention is answered, is seems to me, by Section 311 (6), Government o: India Act, 1935, which says:

Any reference in this Act to Federal Acts or laws or Provincial Acts or laws or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance mad by the Governor-General or a Governor-General Act, or as the case may be, to an ordinance made be a Governor or a Governor's Act.

15. Under Section 100 the legislative powers of the Federal or Central Legislature or the Provincial Legislature are distributed according to the Lists in Schedule 7. Items 1 and 2 of List II (Provincial Legislative List) are set out below

Item 1. Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power); the administration of justice; constitution and organization of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subject to such detention.

Item 2. Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List; procedure in Kent and Revenue Courts.

16. Section 102 provides that if the Governor-General has, in his discretion, declared by proclamation that a grave emergency exists whereby the security of India is threatened whether by war or internal disturbance, the Federal Legislature shall have power to make laws for a Province or any part thereof -with respect to any of the matters enumerated in the Provincial Legislative List. The position, therefore, is that when a proclamation of a grave emergency has been made by the Governor-General, as indeed it was when war broke out in September 1939, the Federal Legislature has power to make laws with regard to the constitution and jurisdiction of Courts in Provinces; that the same emergency enabled the Governor-General under Section 72, Government of India Act, 1915, to pass an Ordinance dealing with the same matters which Ordinance 'shall have the like force of law as an Act passed by the Indian Legislature' and that Section 811 (6) provides that the Governor-General's Ordinance shall be construed as the same as an Act of the Federal or Provincial Legislature. There is, therefore, no substance in the second contention of the applicants.

17. The third contention of the applicants, and the one which has caused me a great deal of difficulty, is that, although the Governor-General might set up Special Courts and 1 prescribe the class of case to be tried in those Courts, he has not prescribed the classes of offences and cases but has left it to the Provincial Government, on adopting the Ordinance, to prescribe the classes of cases and has even permitted some servant of the Crown, who may be empowered in that behalf by the Provincial Government, to prescribe the classes of cases. It is said that this is delegating legislation, and that there is not power in the Governor-General to delegate legislation in this way. The position is a difficult one for us to deal with because the Special Courts in question do not come within the superintendence of the High Court by virtue of Section 26. Circulars and directions have been forwarded by Government to District Magistrates - some marked i confidential and some marked secret - with instructions as to how the Special Courts were to be worked; this Court had not received copies of those instructions until many months afterwards - sometimes six months or more. However, from such material as I have been able to gather, the position is as follows : The Ordinance itself was adopted by the Government of Bengal on 3rd April 1942, when by a Gazette Notice No. 3529P of 3rd April 1942, the Governor was pleased to declare the Ordinance to be in force in the province of Bengal with effect from the date of publication. On the same, date by a Gazette Notice No. 3531P certain District Judges in the coastal and border areas were nominated Special Judges under Section 4 of the Ordinance. By another Gazette Notice No. 8582P of the same date - 3rd April 1942 - all First Class Magistrates in the same coastal and border areas were, who have exercised powers as such for not less than two years, invested with the powers of Special Magistrates under Section 2 of the Ordinance and by a further Gazette Notice No. 8534P of the same date there is the following announcement:

In exercise of the powers conferred by Section 10, Special Criminal Courts Ordinance, 1942, (Ordinance No. 2 of 1942) the Governor is pleased to empower the District Magistrates of the districts of Chittagong, Noakhali, Tippera, Bakerganj, 24-Parganas, Midnapore and Khulna to direct within their respective districts by general or special order in writing which offences or classes of offences or cases or classes of cases other than offences or cases involving the offence punishable by death under the Indian Penal Code shall be tried by a Special Magistrate.

18. By a Gazette Notice No. 3585P of 3rd April 1942, the following was provided;

In exercise of the power conferred by Section 5 of the Special Courts Ordinance, 1942 (Ordinance 2 of 1942) the Governor is pleased to empower the District Magistrates of the districts of Chittagong, Noakhali, Tippera, Bakerganj, 24-Parganas, Midnapore and Khulna to direct within their respective districts by general or special order in writing which offences or classes of offences or cases or classes of cases under the Indian Penal Code shall be tried by a Special Judge.

19. On 25th June 1942, by similar Gazette notices (two of which viz. Nos. 9578P and 9579P are set out earlier in this judgment) corresponding powers were given to Special Magistrates and District Judges in other areas of the province similar to those set out under Notification No. 3534P and No. 3535P. On or about 26th June 1942 a circular was issued by a Secretary of the Government of Bengal giving instructions as to how the District Magistrates should exercise their powers. Two schedules were sent out with it one of them setting out a list of the offences which might be tried by Special Magistrates and the other a list of offences which might be tried by Special Judges. Those lists are very long and although not identical are nearly so. They are set out as an appendix to this judgment. They comprise a very large number of the offences under the Penal Code, some of which could have nothing to do whatever with the special conditions prevailing in the province, as well as a list of offences under special statutes e.g., the Defence of India Rules and various Police Acts. Other circulars have been sent i out since. It is only comparatively recently that copies of these circulars and schedules have been sent to this Court for its information.

20. It appears that the present case was tried by a Special Magistrate as a result of a specific order to that effect by the District Magistrate. What has happened in other oases this Court does not know. I have made enquiries of one District Judge and found that the following procedure has been adopted in that district. The District Magistrate made an order to the effect that 'cases arising out of the recent disturbances shall t be tried by Special Magistrates.' Thereupon, oases were brought before Special Magistrates accompanied by a certificate from the police to the effect that the cases arose out of the recent disturbances and thereupon the Special Magistrate dealt with them under the ordinance. This is extremely unsatisfactory from the point of view of the subject. It makes the police the arbiter of a man's rights as to how he shall be tried. Before the ordinance was set up, any person charged with an offence when brought before a Court knew exactly what class of Court he would be tried in, and what rights i he had if the Court made an error in procedure or in the determination of the facts or in the law applicable to the case. As far as he was concerned, the law and his rights under it were certain. Under the ordinance a man may be brought before a Magistrate charged with an offence and it is left to the District Magistrate to say whether that man, should be tried by the ordinary Courts and have the ordinary rights of appeal and revision under the Criminal Procedure Code and ! the High Court's powers under its Letters s Patent or whether he should be tried by a I Magistrate sitting as a Special Magistrate with very limited rights of appeal and no right as to revision. The man's rights as regards appeal and revision are not predetermined by law but are left to the discreetion or order of the District Magistrate and, in some cases, practically to the discretion of the police.

21. Although the ordinary criminal Courts at all material times since 8rd April 1942 have and still do function and although the Criminal Procedure Code has not been repealed and although the substantive criminal law stands as it did before the Ordinance, there are now two sets of Courts, the ordinary criminal Courts and the Special Criminal Courts working side by side and no man knows which Court he may be tried in - that is left to the District Magistrate nominally to decide : in fact it might be decided by the police. As I have said previously I am of the opinion that in a grave emergency like the present it is competent for the Governor. General to set up temporary Special Criminal Courts, and for similar reasons I am of the opinion that it is competent for the Governor-General in the emergency to prescribe the offences and persons that should be tried in those Special Courts even to the ouster of the ordinary Courts. That follows from the legislative powers that the Governor-General has under Section 72, Government of India Act, 1915, and Section 102 of the Act of 1935. However, that is not what the ordinance has done. It has first left it to the Provincial Government to set up the Special Courts authorised in the ordinance where it thought fit; I think that is a proper exercise of the Governor-General's powers: it is not delegating legislation. Nothing more needed to be done but for the Provincial Government to bring the ordinance into operation and appoint Magistrates and Judges. That is conditional legislation within the decision in (1878) 8 A. 0. 889.1 So far, as at present advised, I think that is valid.

22. The ordinance, however, leaves it to the Local Government or to some officer of the Local Government empowered by the Local Government in that behalf to direct in writing what offences or classes of offences and, moreover, what cases or classes of cases - a different matter - shall be tried by the Special Courts. The Code of Criminal Procedure still stands as a whole and is operative in the ordinary criminal Courts every day; in it are certain provisions which prescribe how certain offences shall be tried and what rights of appeal the convicted person has. For instance, an offence may be committed under Section 804, Penal Code - culpable homicide which is less than murder. Schedule 2 of the Code prescribes that cases under Section 304, Penal Code, shall be tried by a Court of Sessions which may be a High Court or an ordinary Court of Sessions. Section 267 of the Code provides that all trials under Chap. 23 (which deals with trials before High Courts and Courts of Sessions) before a High Court shall be by a jury. Section 268 provides that all trials before a Court of Sessions shall be tried by a jury or with the aid of assessors. Those two sections give definite rights to the subject and they are not repealed by the ordinance. Again, Section 275 of the Code prescribes that in a trial by jury in a Court of Sessions a person not being a European or an American the majority of the jury shall, if the person so desires, consist of persons who are neither Europeans nor Americans. Again, Section 275(1) enacts that in a trial by a jury in a High Court or in a Court of Sessions a European or American accused may if he so requires be tried by a jury of Europeans or Americans.

23. There is nothing in the ordinance directly or indirectly repealing those provisions and they stand as part of the statute law of the land. Trial by jury continues in this Province today. However, under the ordinance, the Local Government or a servant of the Crown empowered in that behalf by the Local Government may at any time by general or special order in writing direct a person charged under Section 304 to be tried either by a Special Judge or a Special Magistrate. If that happens the Government of Bengal acting in its administrative capacity or a servant of the Crown again acting in an administrative capacity is taking away the rights of the subject under the Code of Criminal procedure to be tried by a jury - an Indian by Indians, a European or an American by Europeans or Americans. If such direction is valid, it amounts to a repeal in ', that instance of one or more of the sections of the Code of Criminal Procedure I have mentioned. That is legislation or it is invalid.

24. There are many offences in the Penal Code which are by Schedule 2, Cr. P.C, triable only by Courts of Sessions or in the High Courts and a similar position as under Section 304, Penal Code, will arise in many of them. These are, in my view, particular and the more striking and obvious instances of the more general position. The Penal Code is a statute which declares that certain acts and omissions are offences against the State; it declares the obligations of the subject towards the state with the respective penalties for breach thereof. The Criminal Procedure Code prescribes how the breaches of those obligations $ shall be ascertained in the Courts and in so doing gives to the subject certain rights secured by that statute which subsist for the protection of the subject until they are taken away by the proper legislative authority. Some of the most important of those rights (in addition to trial by jury) are the right of appeal and the right of revision by superior Courts including the High Courts. In the Special Courts which are temporary and established to meet the grave emergency, the rights of the subject are heavily cut down in the interests of the security of the state. The subject who commits a crime is not, however, ipso facto or by the Ordinance itself brought within the jurisdiction of the Special Courts. Two men may commit the same kind of offence in the same district; one may be tried in the ordinary Courts and have the ordinary rights of appeal and revision if convicted; the other may be ordered by written direction of the Provincial Government or the District Magistrate, whose discretion is absolute and decision final (s. 14), to be tried by the same Magistrate or Judge in the Special Courts and have no or little rights of appeal or revision under the Code of Criminal Procedure. In effect it is the Provincial Government or the District Magistrate acting not in a judicial capacity but in an administrative capacity that deprives the subject of his right under the Code and repeals its valued provisions as far as he is concerned. That, in my view, is repealing the Code of Criminal Procedure in part - in that instance legislation ad hoc for the man's case.

25. Under the Government of India Act, the Provincial Government may legislate by or through an Act passed by both Houses and assented to by the Governor or in the proper case by a Governor's Act or Ordinance (see Sections 88, 89 and 90, Government of India Act), but as far as I am aware in no other way, A servant of the Crown not being the Governor-General or the Provincial Governor has no authority at all to legislate unless he is specially empowered in a limited manner to do so by some Act of the Legislature, as for instance in the making of a rule under a statute. This rule-making power originates; and derives from the practice in Parliament where in modern times, especially in war time, it is extensively used. Presumably, Parliament intended the Central Indian: Legislature to have the same powers, for they are frequently exercised. It may be that Parliament has intended the Provincial Legislatures to have the same powers. No question here arises as to the exercise of those rule-making powers. When such rules are made they are laid before the Legislature and/or published so that all concerned may know them, and all concerned affected alike. Whether the Governor-General has the power to delegate legislation by rule-making is another matter. Section 72, Government of India Act, 1915, provides that the Governor-General may make Ordinances and 'any Ordinances so made shall . have the like force of law as an Act passed by the Indian Legislature.' It does not provide that rules made under each Ordinance shall have the like force as an Act passed by the Indian Legislature. Any practical difficulty can be surmounted by the Governor-General enacting the rules as an Ordinance after they are made. That, and the fact that the Governor-General's Ordinance is not a thing of the same derivation and kind (although it may have the like force of law) is an argument against the power to make rules under an Ordinance. Be that as it may no such rules purport to have been authorised or have indeed been made under the Ordinance. If they had, they would have been published to all concerned, and have been the same for all concerned. This is a case of delegation of authority to be used ad hoc. I see no authority in Section 72 for that - the power to legislate belongs to the Governor-General. This conclusion is borne out by another consideration. The Secretary of State, under Section 13, Government of India Act, 1935, issued the Instrument of Instructions to the Governor-General. Section 18 (2) provides that the validity of anything done by the Governor-General shall not be called in question on the ground that it was done otherwise than in accordance with any Instrument of Instructions issued to him.

26. The Instrument of Instructions is public, and from it, it is apparent that by para. 27 our Governor-General shall not assent in our name to but reserve for the signification of Our pleasure, any Bill of any of the classes specified, that is to say, (b) any Bill which in his opinion, would, if it became law, so derogate from the powers of the High Court of any province as to endanger the position which these Courts are by the said Act (Government of India Act, 1935) designed to fill.

27. The Ordinance in question is not an Act which began as a Bill; it is emergency legislation; so that it may well be that Para. 27 of the Instrument does not apply to it. The Instrument of Instructions does, however, show that the position of the High Courts is one of special interest to the Crown and one where the Governor-General's powers with regard to it are not to be exercised without special consideration. Can it e be supposed that in making an Ordinance which affects the High Courts, the Governor. General can, in the absence of clear authority, delegate his powers to others to exercise? Such a consideration supports the view that at any rate where the jurisdiction of the High Courts is concerned, delegation of the Governor-General's powers, not being expressly permitted, cannot be implied. The same considerations are relevant as regards a Governor's Ordinance. The delegation of power to the Local Government or an officer of the Crown to direct which offences or classes of offences or cases or classes of cases j shall be tried by the Special Courts results in a curious position where the High Court in Calcutta is concerned. The High Court was constituted not under any Government of India Act but by the grant of Letters Patent by the Crown under the High Courts Act of 1861 (24 and 25 Vict. Cap. 404). This statute - Section 9 - continued the criminal jurisdiction that the Supreme Court had in Calcutta. The Letters Patent - Clause 15 - provides that:

The High Court shall have original criminal jurisdiction within the local limits of the ordinary original civil jurisdiction and also in respect of all such persons both within the limits of the Bengal Division of the Presidency of Fort William and beyond such limits (as are therein set out).

28. This means that the High Court has original criminal jurisdiction over all persons in the area bounded by the Circular Road and the west bank of the river Hooghly. At present the High Court holds its sessions five times a year in this Court and tries with a jury persons who commit serious crimes within its jurisdiction. Under the Ordinance an officer of the Bengal Government in the Secretariat or the Chief Presidency Magistrate (who is normally subject to the High Court's jurisdiction) can by an order in writing order any offence alleged to have been committed within or a criminal case arising within, the area bounded by the Circular Road and the river Hooghly, he pleases to be tried by a Special Magistrate or a Special Judge, whether the offence arises out of the emergency or not, in ouster of the Court's jurisdiction given to it under the High Courts Act of 1861 and the Letters Patent granted by the Crown, and so set aside the provisions of clause 15. Clause 44, Letters Patent, provides that the Letters Patent

are subject to the legislative powers of the Governor-General in Council and also of the Governor-General in Council under Section 71, Government of India Act, 1915, and also of the Governor-General in cases of emergency under Section 72 of that Act and may be in all respects amended and altered thereby.

29. By Clause 44 the Governor-General may, in an emergency take away the High Court's original criminal jurisdiction; but no one else is so authorised, and there is nothing in the wording of Clause 44 to suggest in any way that such powers might be delegated to someone else. In Bengal there has been double delegation - once by the Governor-General to the Government of Bengal and then by the Government of Bengal to the District or Presidency Magistrates. There is no restriction in the Ordinance or in the Gazette notices of 3rd April or 25th June as to the offences or cases triable under the Ordinance. Accordingly if the Ordinance is valid each District Magistrate and the Chief Presidency Magistrate may direct, if they so desire, all cases in their several districts to be tried by Special Magistrates or Special Judges with the result that except within the very narrow limits permitted by the Ordinance the jurisdiction of the High Court both in Calcutta and throughout the province may be ousted for the time being in criminal matters - a very serious matter both from the point of view of the subject and the Court.

30. If the Ordinance itself had directed such ouster of jurisdiction, it would have been apparent on the face of it, and the Governor-General would have known that this was taking place, as would the Court and the public. The Governor-General might then well have considered whether it was a matter which came within the spirit of the directions in Article 27 of the Instrument of Instructions. The present position may result in an indefinite ouster of jurisdiction of the High Court, and an indefinite ouster of the subject's rights without either the Governor General or the Court or the public being aware of the extent of it. The effect upon the administration of justice may be grave. It has already given the Court a great deal of anxiety and has given rise to serious com-plaints being made in the Bengal Assembly as to the use of this Ordinance. In the original instructions sent out by an officer of the Government of Bengal on 26th June 1942, (which the Court was not apprised of until January 1918) this ouster was made possible over a very large section of the criminal law. Since this present case has been started the Court has received another circular from the Government of Bengal which intimates that District Magistrates are instructed to use the Ordinance only in cases of hoarding and profiteering. From the public point of, view, that is undoubtedly a step in the right direction although it may be retraced at any time; but it leaves the High Court without any control over profiteering and hoarding offences. It is notorious that proceedings in respect of profiteering have been relatively few and the sentences imposed have been very light. There is no judicial or other authority at present to revise these sentences and enhance them.

31. The Ordinance is of course an emergency measure of limited duration, but it is difficult to say that because of that the power of ouster of jurisdiction should be delegated in the way it has been. It is possible, if the advice of those with special knowledge and experience in the administration of the criminal law is sought, to effect in the ordinary Courts the same purpose, viz., the swift, stern and even-handed punishment of serious offences against the State in an emergency, by a relatively small alteration of the Criminal Procedure Code and other Acts. I have come to the conclusion for the reasons I have given that as the Ordinance in Sections 6, 10,14 and 16 empowers persons other than duly authorised Legislatures constituted under the Government of India Act, 1935, to repeal ad hoc certain provisions of the Criminal Procedure Code and of the Letters Patent of the High Court, it is so far in-valid. I am therefore of the opinion that the trial of the applicants which has been by a Special Magistrate under the direction of the District Magistrate, acting in pursuance of Section 10 of the Ordinance and the authority delegated to him by the Provincial Government, is void. In my opinion, this conviction should be set aside and the applicants released, re-arrested and tried in the ordinary Courts according to the ordinary process of law.

Schedule of cases triable by a Special Magistrate.

(a) Any offence punishable under any of the following sections of the Penal Code, namely : Sections 121A, 122, 123, 124, 124A, 125, 126, 127,128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 140, 143, 144, 145, 146, 147, 148 151, 152, 153, 153A, 157, 182, 183, 184, 186, 211, 212, 216, 216A, 224, 225, 264, 265, 266, 281, 304, 307, 323, 324, 325, 326, 327, 328, 329, 332, 333, 342, 348, 344, 346, 847, 348, 353, 356, 357, 364, 365, 367, 379, 380, 881, 382, 384, 385, 386, 387, 392, 393 894, 395, 397, 398, 399, 400, 401, 402, 403, 411, 412, 413, 414, 427, 428, 429, 430, 431, 432, 433, 435, 436, 437, 438, 440, 448, 449, 450, 451, 452, 453, 455, 456, 457, 458, 469{?),460,504,505, 506 and 507; (b) any offence under the Explosive Substances Act, 1908 (6 of 1908); (o) any offence under the Arms Act, 1878 (11 of 1878); (d) any offence under the Police (Incitement to Disaffection) Act, 1922 (22 of 1922); (e) any offence under Section 3, Penalties (Enhancement) Ordinance, 1942 (Ordinance No. 3 of 1942); (f) any offence under the Defence of India Act, 1939 (35 of 1939) and the rules made thereunder; (g) any offence under Sections 19, 20 and 25, European Vagrancy Act, 1874 (9 of 1874); (h) any offence under Sections 2, 3 and 18, Howrah Offences Act, 1857 (31 of 1857); (i) any offence under Section 34, Calcutta Suburban Police Act, 1866 (Bengal Act 2 of 1866) and Section 57, Calcutta Police Act, 1866 (Bengal Act 4 of 1866); (j) any offence under Sections 6 and 7, Eastern Frontier Bifles (Bengal Battalion Act) 1920 (Bengal Act 2 of 1920); (k) any offence under the Goondas Act, 1923 (Bengal Act 1 of 1923); (1) any offence under the Presidency Area (Emergenoy) Security Act, 1926 (Bengal Act 3 of 1926); (m) any offence under the Bengal Smuggling of Arms Act, 1934 (Bengal Act 6 of 1934); (n) any offence under the Essential Services (Maintenance) Ordinance, 1941 (Ordinance No. 11 of 1941); (o) any offence under Sections 126, 127 and 128, Railways Act, 1890 (9 of 1890); (p) any offence under Section 25, Telegraph Act, 1885 (13 of 1885); and (q) any attempt or conspiracy to commit or any abetment of, any of the above offences.

Schedule of cases triable by a Special Judge.

(a) Any offence punishable under any of the following sections of the Penal Code, namely : Sections 121, 121A, 122, 123, 124, 124A, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, HO, 143, 144, 145, 146, 147, 148, 151, 152, 153, 153A, 157, 182, 183, 184, 186, 211, 212, 216, 216A, 224, 225, 264, 265, 266, 281, 302, 304, 307, 323, 324, 325, 326, 327, 328, 329, 332, 333, 342, 343, 344, 346, 347, 348, 353, 356, 357, 364, 365, 367,

1 376, 379, 380, 381, 382, 384, 385, 386, 387, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 411, 412, 413, 414, 427, 428, 429, 430, 431, 432, 433, 435, 436, 437, 438, 440, 448, 449, 450, i51, 452, 453. 454, 455, 456, 457, 458, 459, 460, 504, 505, 506 and 507; (b) any offence under the Explosive Substances Act, 1908 (6 of 1908); (o) any offence under the Arms Act, 1878 (11 of 1878); (d) any offence under the Police (Incitement to Disaffection) Act, 1922 (22 of 1922); (e) any offence under Section 3, Penalties (Enhancement) Ordinance, 1942 (Ordinance No. 3 of 1942); (f) any offence under the Defence of India Act, 1939 (35 of 1939) and the rules made thereunder; (g) any offence under Sections 2, 3 and 18, Howrah Offences Act, 1857 (31 of 1857); (h) any offence under Sections 19, 20 and 25, European Vagrancy Act, 1874 (9 of 1874); (i) any offence under Section 34, Calcutta Suburban Police Act, 1866 (Bengal Act 2 of 1866) and Section 57, Calcutta Police Act, 1866 (Bengal Act 4 of 1866); (j) any offence under Sections 6 and 7, Eastern Frontier Bifles (Bengal Battalion) Act, 1920 (Bengal Act 2 of 1920); (k) any offence under the Goondas Act, 1923 (Bengal Act 1 of 1923); (1) any offence under the Presidency Area (Emergency) Security Act, 1926 (Bengal Act 3 of 1926); (m) any offence under the Bengal Smuggling of Arms Act, 1934 (Bengal Act 6 of 1934); (n) any offence under the Essential Services (Maintenance) Ordinance, 1941 (Ordinance No. 11 of 1941); (o) any offence under Sections 126, 127 and 128, Railways Act, 1890 (9 of 1890); (p) any offence under Section 25, Telegraph Act, 1885 (13 of 1885); (q) any attempt or conspiracy to commit or any abetment of, any of the above offences.

Khundkar, J.

32. For purposes of convenient consideration the argument may be regarded as falling under the following heads: (1) In so far as it seeks to shut out the jurisdiction of the High Court to interfere in appeal and revision, the Ordinance is ultra vires of the powers of the Governor-General by reason of Section 223, Government of India Act 1935. (2) This Ordinance is, in its entirety ultra vires of the powers of the Governor-General under Section 72 in Schedule 9 of the Act, for the following reasons : (a) Section 72 gives power to make an Ordinance only in oases of an existing emergency to be determined by the Governor-General, and not in a case of a future or prospective emergency the existence of which is left to the Provincial Government to decide, (b) Section 72 gives the Ordinance making power to the Governor-General and to no one else. Here what the Governor-General made and promulgated was only a paper edict, which was to suffer suspended animation until the Provincial Government called it into force by a declaration. The Provincial Government was then to set up a machinery of judicial administration and to set it in motion. It was therefore the Provincial Government which was really to make the Ordinance by virtue of a delegated authority from the Governor. General, (c) This Ordinance does not constitute any Courts or create any jurisdiction, but it gives to the Provincial Government the power to do both these things and also to thereby oust the jurisdiction of the High Court. The first argument is founded on Section 223, Government of India Act, 1935. That section is in these terms:

Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any 'existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the commencement of Part 3 of this Act.

33. The argument is that by reason of this section, the presently existing jurisdiction of the High Court, in so far as it can be affected at all, by future legislation, can only be so affected by enactments of the Provincial or the Indian Legislature under powers conferred on those Legislatures by the Government of India Act. It cannot be affected by an ordinance passed by the Governor General. The first answer to this contention is provided by Sub-section (6) of Section 311 which is the Interpretation Section:

Any reference in this Act to Federal Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made by the Governor-General or a Governor-General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act.

34. But then it is further contended that the interpretation clause is not attracted, because the words in Section 223 are, 'enacted by virtue of powers conferred on that Legislature by this Act.' These are qualifying words. It is not just 'any Act of the appropriate Legislature' that is contemplated in Section 223. If nothing further had been said in Section 223 then certainly an Ordinance of the Governor-General would have been included. But Section 223 says it must be an Act which arises out of the exercise of powers expressly conferred by the Government of India Act on the appropriate Legislature. Now the Act has indeed and in fact expressly conferred both upon the Provincial and the Indian Legislatures power to legislate in a manner and for purposes which would involve interference with the High Courts existing jurisdiction. But no such power has been expressly and specifically conferred by the Act upon the .Governor-General. Section 26 of the Ordinance which precludes the High Court from entertaining appeals, or applications in revision, or applications under Section 491, Criminal P. C, with respect to orders passed by Courts under the ordinance is therefore ultra vires of the powers of the Governor-General under Section 72 in Schedule9. Now the jurisdiction of the High Court which is sought to be preserved by Section 223 is no other than the jurisdiction contemplated by the Letters Patent. Clause 44 of the Letters Patent makes all the provisions thereof subject to legislative powers which include those of the Governor-General in cases of emergency under Section 72, Government of India Act, 1915. As against this, however, it is contended that the Government of India Act, 1915, is no longer law, having been repealed by the Government of India Act 1935. I am not quite certain that this is a real answer, because Section 72 of the Act of 1915 is one of the sections which have been continued in force in Schedule 9 by Section 317. Be that as it may, however, this contention is clearly negatived by the provisions of Section 18(7) read with those of Section 38, Sub-section (l), Interpretation Act 1889 (52 and 53 Vic. ch. 63). Those sections are as follows:

The expression 'colonial Legislature' and the expression 'Legislature,' when used with reference to a British possession, shall respectively mean the authority other than the Imperial Parliament or Her Majesty the Queen in Council, competent to make laws for a British possession.

Where this Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted.

35. The final argument sought to be advanced is that the rule of interpretation embodied in Section 88, Interpretation Act, does not apply to the Letters Patent, which is not an Act of a Legislature, but is an executive enactment. The answer to such a contention, in my opinion, is that the rule of interpretation in Section 38 is a principle which exists independently of the Interpretation Act and therefore applies as effectually to the Letters Patent as to a statute. Argument 1 must therefore fail. For an examination of the second argument in all its branches it is necessary first to set out what some sections of the Ordinance very clearly say:

The Preamble. Whereas an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts.

Section 1(3). It shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to in force in the Province....

Section 3. Courts of criminal jurisdiction may be constituted under this Ordinance, of the following classes namely: (i) Special Judges, (ii) Special Magistrates, (iii) Summary Courts.

Section 4. The Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (hereinafter in this Ordinance referred to as the Code).

Section 5. A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.

Section 9. Any Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested by the Provincial Government with the powers of a Special Magistrate under this Ordinance.

Section 8. If in any proceedings before a Special Judge - (a) a person convicted is sentenced to death, or to transportation for life, or to imprisonment for a term of seven years or more, or (b) though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of law or fact, or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person nominated in this behalf by the Provincial Government, which person shall be chosen from tha Judges of the High Court having jurisdiction over the area for which the Special Judge is appointed, and the decision of that person shall be final.

Section 10. A Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or case 3 involving offences ' punishable under the Indian Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.

Section 13 (1). Where a Special Magistrate passes t a sentence of transportation or imprisonment for a term exceeding two years, an appeal shall lie to the Special Judge having jurisdiction in the area or, if ' there is no Special Judge for the area, to the High Court in a Presidency-town and elsewhere to the Court of Session.

Section 15. The Provincial Government may, by general or special order in writing, empower any Magistrate appointed under the provisions of the c Code to exercise the powers of a Summary Court in any area specified in the order.

Section 16(1). A Summary Court shall have power to try such offences or classes of offences, or such cases or classes of cases as the District Magistrate, or in a Presidency-town the Chief Presidency Magistrate, or a servant of the Crown authorised in this behalf by the District Magistrate or Chief Presidency Magistrate, may by general or special order direct : Provided that no person shall be tried ] by a Summary Court for an offence which is punish] able with imprisonment for a term exceeding two, years, unless it is an offence specified in Sub-section (1) of Section 260 of the Code.

(2) The District Magistrate or Chief Presidency Magistrate may by general or special order give directions as to the distribution among the Summary Courts within his jurisdiction of cases triable by them under Sub-section (1).

Section 19 (1). If a Summary Court, in a case tried according to the procedure for the trial of warrant cases, passes a sentence of imprisonment for a term exceeding three months or of fine exceeding two hundred rupees or in a case tried by summary procedure passes a sentence of imprisonment for a term exceeding one month or of fine exceeding fifty rupees, an appeal shall lie in a Presidency-town to the Chief Presidency Magistrate and elsewhere to the Special Magistrate or other Magistrate of the first class appointed by the District Magistrate of the district in which the Summary Court is situated to hear appeals from that Court.

Section 26. Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as ,ti provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.

36. From the language of the provisions above set out, the following points clearly emerge.1. The purpose of this Ordinance was not to set up any Courts but to provide for the setting up in future of criminal Courts. 2. The Ordinance was not in force immediately after it was promulgated. It was to be brought into force at a future time by the Provincial Government. 3. Certain classes of Courts clothed with criminal jurisdiction were indicated by names, and it was enacted that these Courts may be constituted. 4. It was enacted that persons possessing certain qualifications which were described, may be appointed by the Provincial Government to try cases in these Courts. 5. The jurisdiction of these Courts was to be confined to the trial of offences and criminal cases of a certain category which was not given precise definition, but the category was indicated as embracing all offences and criminal cases the trial of which by these Courts might be directed by the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf. 6. Convictions by Special Judges were to be liable to review only in the manner and to the extent provided for in Section 8. 7. Convictions by Special Magistrates were to be subject to appeal only in the manner and to the extent provided for in Section 13. 8. Convictions by Summary Courts were to be liable to appeal only in the manner and to the extent provided for in Section 19. 9. The jurisdiction of the High Court to interfere in appeal or revision or under Section 491, Criminal P. C, was to be entirely excluded. It is necessary to set out also Section 72 in Schedule 9 of the Act.

The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.

37. Section 72 has been amended by the India and Burma (Emergency Provisions) Act of 1940 (3 & 4 Geo. vi, chap. 33) which removes the time limitation of six months during which an ordinance is to have force. It may be mentioned here that the amendment is not of importance for the purposes of the arguments addressed to us. Branch A of the second argument is that, although Section 72 does not contemplate a prospective or future emergency, the ordinance was not to become operative as law until the Provincial Government, being satisfied of the existence of an emergency at some future time, by notification in the official Gazette declared it to be in force. Now it is well settled that the question of whether an emergency existed at the time when an ordinance was made and promulgated is a matter of which the Governor-General is the sole judge, see 58 Bhagat Singh v. Emperor Here the Governor-General had decided that question, as the preamble shows, and there can be little doubt that the 'emergency' referred to in Section 1(3) was, in the contemplation of the Governor-General, a future stage of the same emergency which made it necessary for him to make and promulgate the ordinance. As stated by Niyogi J. in I.L.R. Sitao v. Emperor (43) 30 A.I.R. 1943 Nag. 36:

Inasmuch as it was enacted to meet an emergency and such emergency was likely to become acute the materialisation of that stage of emergency was indicated as the condition precedent for enforcing the ordinance.

38. If one may look at the question objectively, it is, as pointed out by my Lord the Chief Justice, a matter of recent history that a situation of public peril arose in January 1942 when the Japanese army was approaching India, which grew more and more acute, until, in this Province, events made it incumbent upon the Provincial Government to have recourse to the measures for which the ordinance provided. The use of the words 'being satisfied of the existence of an emergency,' in Section 1(3) is in my opinion infelicitous, because what was meant was the happening of some event or events during the continuance of an emergency already in existence. That however is all that can be said by way of criticism. The preamble contains clear words showing that the Governor-General had decided that an emergency existed which necessitated the making of the Ordinance at the time when it was made. When these words are read with the provisions which follow the preamble the meaning is plain. The Governor. General is heard to be saying: 'I do not think there is such an emergency now as calls for the immediate application of special powers, but I do think that there is an emergency now, and that it calls for the creation of powers ' recourse to which will be necessary, if and when this emergency gets worse.' The Governor. General did both think and say that there was an emergency which justified the making of this Ordinance. To suggest otherwise would be to suggest as was said by Beaumont C. J. in his judgment in Criminal Applications Nos. 431,433,435 and 436 of 1942 of the Bombay High Court Reported in Emperor v. Shreekanta (43) 30 A.I.R. 1943 Bom. 169 'that the Governor-General can never exercise any foresight in the protection of the state.'

39. Branch B of the second argument amounts-to this. In 8. 1 (3) the words, 'it shall come into force in any Province only if the Provincial Government declares it to be in force' especially when coupled with the-provisions of Sections 3, , 6, 9, 10, 15 and 16 show that the Governor General was really delegating his power to make an effective Ordinance to the Provincial Governments, The Ordinance does not come into force when it is promulgated. It may not come into force at all. But, on the other hand, a Pro. vincial Government may call it into force at a future time. That Provincial Government may then proceed to do a number of things needed to deal with acts of lawlessness. The conferring on the Provincial Government of power to do those things is more particularly dealt with in the next branch, Branch 0, of the argument. But as regards Branch B, a similar argument was advanced in 5 I. A. 178 also reported in (1878) 3 A. c. 8891 in relation to an Act passed by the Indian Legislature purporting to remove certain districts in Assam from the jurisdiction of the Civil and Criminal Courts. The Act empowered the Lieutenant Governor by notification in> the Calcutta Gazette to extend the provisions of the Act to other districts and also empowered him, by notification in the prescribed manner to fix the time at which the Act should originally come into operation. The Judicial Committee of the Privy Council rejected the contention that the Act had the effect of creating a new legislative power, or of conferring upon the Lieutenant Governor a delegated authority to legislate and held that what was done by the Act was conditional legislation.

The Legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant Governor their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council Where plenary powers of legislation exist as to particular subjects, whether in the Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be well exercised either absolutely or conditionally. Legislation conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and in many circumstances it may be highly convenient.

40. The principle laid down in (1878) 3A.C. 889 was reiterated in Russell v. Reg. (1882) 7 A.C. 829 a Canadian case, in which the validity of an Act known as the Canada Temperance Act, 1878, was challenged on the ground that it was ultra vires of the powers of the Parliament of Canada under the British North America Act, 1867. The first mentioned Act was in three parts, the first of which related to 'proceedings for bringing the second part of this Act into force,' and it provided that the Act would be brought into force in any county or city, if upon a vote of a majority of the electors of that county or city favouring such course, the Governor General by order in Council declared the second part to be in force. It was held by the Privy Coun. oil that this provision did not amount to a delegation of legislative power to a majority of the voters in a city or county. Their Lordships said:

The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons powers to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power BO to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency .. If authority on the point were necessary, it will be found in Russell v. Reg (1882) 7 A.C. 829 lately before this Board.

41. Russell v. Reg (1882) 7 A.C. 829 is sought to be distinguished on the ground that there the Privy Council were considering the validity of an Act of the Legislature, and hot the validity of an Ordinance such as the present, the enactment of which is not only founded in, but circumscribed by two conditions stated in Section 72 in Schedule 9. That section limits the making and promulgation of an Ordinance to (a) purposes of peace and good government (b) in times of emergency. Enactment by the Legislature is not so restricted. The Legislature's powers to make law are much wider, being limited only by the terms of the instrument - here the Government of India Act - which created it. The range of legislation encompasses a multitude of purposes, and of possible situations, and from this it follows of necessity that the Legislature may legislate for the future as well as the present, and in a mode which may be absolute or may be conditional as the needs of the particular situation to be met, may require. This is what was meant, when the, Privy Council said in (1878) 8 A. 0. 8891 that where plenary powers of legislation exist, they may be exercised either absolutely or conditionally, and that legislation conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, may in many circumstances be highly convenient. Under the Government of India Act, the Indian Legislatures enjoy, each in its own legislative province, what are undoubted plenary powers. These certainly include power to legislate in an emergency and power to legislate for peace and good government. According to the present argument, the Governor. General is not vested with plenary powers of legislation. But Section 72 of Schedule 9 has conferred upon him power to legislate only for peace and good government in an emergency. The power to legislate for that purpose is co-extensive with that of the Legislature. But the power must be validly exercised and the question of what is a valid exercise of the Ordinance making power was not considered in (1878) 3 A.C. 889.

42. Before this question engages attention, it is first necessary, according to the argument, to reconnoitre the spirit and intention of Section 72 as originally enacted. One is bound to ask, why has the Governor-General been given a power which the Legislature already possesses? The answer is not far to seek. A Legislature democratically constituted cannot move with speed. The period required for deliberation and debate is often prolonged. An emergency by its very nature calls for instant action. The word emergency connotes immediacy. Section 72 itself says an ordinance will have effect for six months from the date of its promulgation. That might be the period needed for the passing of a suitable Act by the Legislature. I should like to repeat that for the purposes of this argument one has to examine Section 72 as it was before the India and Burma (Emergency Provisions) Act, 1940. Peace and good government are the paramount pre-occupation of the State, and where these are placed in sudden jeopardy, it is imperative that a legislative remedy should be ever available to cope with the danger. But then, again proceeds the argument, the very para-mountcy of peace and good government, considered as subjects of legislation, calls for jealous care on the part of the person in whom is reposed the power to legislate for their preservation. It is therefore for such person and not another to exercise that power when the need arises. The contention is that it is a trust which the trustee alone may discharge. Viewed from this point of approach, the Ordinance shows a failure to apply the principles which animate Section 72.

43. The argument may be put in this way: An emergency has arisen which threatens peace and good government. This is a de-rangement of the body politic which calls for immediate treatment. The Governor-General by this Ordinance prescribes a mode of treatment but this is not to be adopted until and unless some other authority decides that the malady has become more acute; and as is more particularly to be seen when we come to branch c of the argument the details of the treatment are to be worked out and the remedies found and applied by that other authority. If this is a correct representation of the meaning and effect of the Ordinance, say a learned Counsel, then the Ordinance has not been made as required by Section 72. As a piece of a priori reasoning the argument is not without cogency and would require serious consideration, unless one could find express words in the Constitution Act, which places the question beyond doubt. Those words were contained in the original Section 72 itself and have been lost sight of in the discussion above outlined. The section originally enacted a limitation of time for the life of an Ordinance made under it and it said:

Any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature.

44. It was not said that an Ordinance would come into force on the date of its promulgation. What was contemplated was that it might come into force at any time within a period of six months from its promulgation, but that it would not remain in force after that period had expired. It is therefore plain that legislation which was to come into force in a future event was expressly provided for. But that is not all. It is further provided in Section 72 that the contemplated legislation shall have the like force of law as an Act passed by the Indian Legislature. This may be compared with what 8. 311 (6) also says:

Any reference in this Act to Federal Acts or laws or to Acts or laws of the Federal or a Provincial Legislature shall be construed as including a reference to an Ordinance made by the Governor-General or a Governor-General's Act or as the case may be to an Ordinance made by a Governor or a Governor's Act.

45. Under Section 316 'Indian Legislature' is at present synonymous with Federal Legisla-ture.' But an Act passed by the Indian Legislature is valid even though, in the words of the Privy Council in (1878) 3 A. 0, 889,1 it is

conditional on the use of particular powers or oa the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence,

46. We have yet to see, when we come more particularly to examine branch c of the argument, whether the power given by the Ordinance to the Provincial Government in relation to Courts and to jurisdiction comes within these words. But here it may be concluded that the Ordinance is not invalid by reason only that it is to be brought into effective life by the Provincial Government. 'But,' insists the argument, 'there still remains the question, have the initial conditions required by Section 72 been fulfilled? Is there an emergency? Is the Ordinance for peace and good government?' The answer to this question was, as already noted, supplied by the Privy Council in the case in 58 I.A. 169,3 where it was laid down that the sole judge of whether a state of emergency exists and also whether the Ordinance conduces to peace and good government is the Governor-General and the Governor-General alone. 'Any other view would render inept the whole provision.' Here the Governor-General has declared that an emergency exists and no Court may go behind that. Nor is it competent to any Court to enquire whether the Ordinance is really made for purposes of peace and good government.

47. We come now to branch c of the argument which is to some extent a particular application of branch B. According to this the Ordinance is not merely conditional legislation but it also brings about a very real and substantial delegation of the lawmaking power. It is conditional legislation only to this extent, that as to the whole of it, it will not be operative unless called into force in its entirety by the Provincial Government by a declaration. The power to call it thus into force may be 'a particular power' or a 'limited discretion,' with which the Provincial Government has been 'entrusted' within the meaning of the decision of the Privy Council. But (1878) 3 A. G. 8891 does not warrant the other thing which has been done here - the clothing of the Provincial Government with power to constitute Courts, to vest them with jurisdiction, and thereby to bring about a complete ouster of the jurisdiction of the High Court to interfere when any person has been convicted by these tribunals. At the outset I should like to make it clear, that Mr. Meyer for the purpose of this branch of his argument assumed that all these things were within the competence of the Governor-General to do by Ordinance, but his contention was that they should have been done by the Ordinance itself, and not left to be done by the Provincial Government at its discretion.

48. The Crown may not plead history as a vindication of validity where statutes are concerned. But I think it is permissible, where events have occurred of which a Court may take judicial notice, for the Court to look at the logic of the events for the purpose of obtaining an objective understanding of the scheme and framework of any enactment which has relation to those events. When this Ordinance was promulgated there was a state of emergency. We cannot in any event escape from the preamble which says: 'Whereas an emergency has arisen.. ' That in this case the preamble represents a correct and accurate statement of the character of contemporary events, is not a pro-position to be rejected unless the Court is prepared to shut its eyes to events of which it may take judicial notice. Well an emergency existed - what then? The Provincial Governments stood in danger of being brought suddenly face to face with serious disorders arising out of a worsening of the state of emergency. It was undesirable that Provincial Governments should be left to cope with such disorders, if and when they came, unarmed with the power to have the unruly tried by Special Courts. It was in these circumstances that the Ordinance was enacted, its object being to equip the Provincial Governments beforehand with the power to set in motion a machinery for the more speedy and summary trial of offenders than the existing system of judicial administration would afford. There had to be powers to which the Provincial Government could at need resort without delay and the Ordinance was made to provide those powers.

49. This is very understandable, but we have to examine the provisions of the Ordinance with minute care in order to see that they contain in themselves all the essential enactment and formulation. The criticism is that the purpose of the Ordinance can be effectuated by legislation only, but that in the most essential matters the Ordinance does not legislate; it leaves it to the Provincial Government or to some one empowered by the Provincial Government to do so. These matters are, (a) exclusion of interference by the High Court with the orders of the Special Courts under the Ordinance; (b) the setting up of Special Courts; and (c) the conferring upon those Courts of jurisdiction to try. As regards (a) - the exclusion of interference by the High Court, this matter is dealt with in Section 26 of the Ordinance which prevents the High Court from interfering with any order or sentence of a Court constituted under the Ordinance, whether by way of appeal, or revision or under Section 491 of the Code of Criminal Procedure. The exclusion of interference by the High Court is, in my opinion, enacted directly in and by this section; it is not in any sense left to be enacted by the Provincial Government. True it is that the power given to the Provincial Government to cause any criminal case to be tried by a Special Court under the Ordinance will ultimately operate so as to exclude any case to which the power is applied from interference by the High Court, but that is a very different thing from saying that the jurisdiction of the High Court is to be ousted by a power given to the Provincial Government, and not by a provision of the Ordinance itself. In the absence of Section 26 of the Ordinance jurisdiction of the High Court to interfere could not have been affected in any way by anything that might have been directed under Section 5 or Section 10 or Section 16. When it is said that those sections give the Provincial Government the power to do the most vital thing in the act, namely, to decide how much of the jurisdiction of the High Court is to be taken away, it seems to be forgotten that the ouster is already there in Section 26. Section 26 standing by itself brings about an exclusion of the High Court's jurisdiction to interfere with any orders passed by Courts constituted under the Ordinance, and the provisions for directions by the Provincial Government contained in Sections 5, 10 and 16 fall to be considered under another head. This is the head (c) which will be presently dealt with.

50. In connexion with the exclusion of interference by the High Court, there is a special argument which may conveniently be considered here. It is an argument suggested by Clause (27) of the Draft Instrument of Instructions to the Governor General. Under Sections 13 and 53 of the Act, the Secretary of State is to lay before Parliament the draft of any instructions which it is proposed to recommend His Majesty to issue to the Governor-General or the Governors. No further proceedings are to be taken in relation to such instructions except in pursuance of an address presented to His Majesty by both Houses of Parliament praying that the instructions may be issued. The Instrument of Instructions of the Governor-General was issued in March 1937 just before the inauguration of the constitution, and it concerns itself with the exercise of the powers of the Governor-General during the transition period governed by Part 13 of the Act. Section 316 which is in Part 13 enacts that the powers conferred on the Federal Legislature shall be exercisable by the Indian Legislature, and that references to the Federal Legislature and Federal laws shall be construed as references to the Indian Legislature and laws of the Indian Legislature. Clause 27(b) of the Instrument of Instructions to the Governor-General is in these terms:

Our Governor-General shall not assent in Our name to, but shall reserve for the signification of Our pleasure, any Bill of any of the classes herein specified, that is to say: (b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court of any Province as to endanger the position which these Courts are by the said Act designed to fill.

51. The argument is that this Ordinance endangers the position of the High Court inasmuch as it derogates from the jurisdiction and powers of the High Court to deal with criminal cases. As the Governor-General is instructed not to give assent to, but to reserve for the signification of the Crown's pleasure any measure endangering the position of the High Court, which the Legislature may propose to enact, the intention is that the Governor-General should not, when he himself legislates by Ordinance, allow the High Courts' position to be endangered either directly, or indirectly by the acts of some other authority. There is more than one? answer to this contention. Firstly, the language of the instrument is so derogate from the powers of the High Court of any Province as to endanger the position which these Courts are by the said Act designed to fill.

52. Clearly, the powers to be protected are those which are sought to be preserved by Section 223 of the Act. As has already been shown in connexion with argument I above, these powers may be affected by an Ordinance. under Section 72 in Schedule 9. Secondly, if this instruction was intended to control the ordinance-making power contained in Section 72, it could reasonably have been expected that the section would have said so. This is apparent from a comparison of two other sections of the Act which confer on the Governor-General the power to legislate by Ordinance. ( These are to be found in part 2 of the Act, which relates to federation, a part which is not yet in force. Section 42 empowers the Governor-General to promulgate Ordinances if, at any time when the Federal Legislature is not in session, he considers it necessary to take immediate action. Such enactment is subject to two provisos, the second of which forbids the Governor-General to promulgate any such ordinance if he would have deemed it necessary to reserve a Bill containing the same provisions for the signification of His Majesty's pleasure thereon.

53. This express prohibition has reference to those measures which would ordinarily have to be enacted by the Federal Legislature, but which cannot be so enacted because of that Legislature not being in session. But Section 43 which empowers the Governor-General to promulgate Ordinances at any time if he considers it necessary to take immediate action, contains no such limitation. Thirdly, Sub-section (2) of Section 13 which relates to the Draft Instrument of Instructions to the Governor-General provides as follows:

The validity of anything done by the Governor-General shall not be called in question on the ground that it was done otherwise than in accordance with any Instrument of Instructions issued to him.

54. This argument is therefore devoid of sub-stance. Next, as regards (b)-the setting up of Courts under the Ordinance. The Ordinance does not say that these Courts are set up or even that these Courts shall be set up. What it says about the constitution of the Special Courts is contained in Section 3 which is as follows:

Courts of criminal jurisdiction may be constituted under this Ordinance of the following classes, namely; (i) Special Judges, (ii) Special Magistrates, (in) Summary Courts.

55. Two facts which leap to the eye from this section are, firstly, that these are not Courts under the Code of Criminal Procedure, but are new Courts, and, secondly, that they are to be brought into existence in the future. If one now proceeds to search the ordinance for enlightenment as to the process by which these Courts are to be brought into existence one finds only one indication which is con. tained, in so far as Courts of Special Judges are concerned in Section 1, in so far as Courts of Special Magistrates are concerned in Section 9, and in so far as Courts of summary jurisdiction are concerned in Section .15. Those sections empower the Provincial Government to appoint individuals with certain qualifications to function in these Courts as Special Judges, Special Magistrates and Magistrates with summary powers of trial. Those sections confer upon the Provincial Government no more than the mere power of appointing individuals to offices. It is not disputed that an ordinance may invest the executive authorities with such a power. The intention of the ordinance clearly is that these Courts will be in all senses complete and ready to function as soon as the appointments of Judges and Magistrates are made. The making of the appointments is the one and only thing left to be done. The 'constitution' of a thing means the elements or ingredients of which it is made or formed. When one looks at Section 3 again, one finds that the necessary elements of Special Courts under the ordinance are there indicated; they are to be Courts of criminal jurisdiction and they are to be of three classes, namely, Courts of Special Judges, Courts of Special Magistrates and Summary Courts. The form and nature of these Courts is indicated in Section .3, and the word 'constituted' in Section 3 therefore does not mean that the process of constructing the Court has yet to be carried out. All that it means is that one necessary but still absent element in the structure of these Courts re-mains to be supplied and that when it is supplied, these Courts will stand completely constituted. It is clear from the language of Section 3 itself that it was the Governor-General who determined the form and nature of these Courts, and it is equally clear from the ordinance as a whole that they were to come into being as soon as the Provincial Government exercised a particular power, namely, the power of appointment which could well be entrusted to it by the Governor-General. In this view, the constitution or setting up of these Courts in the manner contemplated by the ordinance, would be within the principle laid down in (1878) 3 A. C. 889.1 What is of importance here is that it is not for the Provincial Government to determine what kind of Courts are to be set up the Governor-General has already determined that in Section 3.

56. We come now to (c), the conferring upon the Special Courts of jurisdiction to try. I may say at once that we are not concerned with what is known as territorial jurisdiction, but with jurisdiction in regard to offences and persons charged with offences. As already stated, Section 3 has made it clear that this jurisdiction is criminal jurisdiction, in other words it embraces all crime and all persons accused of crime. This is a wide field, and the ordinance itself prescribes the ultimate limits of that field; it says that it is the field of criminal cases, not civil cases or revenue cases or admiralty cases; it is the field which encompasses the subject of crime. Section 3 enacts that all cases within that field are to be tried by Special Judges, Special Magistrates, and Summary Courts. If the ordinance had left it there, it would have been incomplete. The Courts contemplated by Section 3 would between them have had co-ordinate juris, diction with the Courts established under the Code of Criminal Procedure and there would have been a complete overlaying of the jurisdiction of the latter Courts by the jurisdiction of the former Courts, jurisdiction being used in the sense of the power to try persona charged with crime. But the sole purpose of the ordinance is to make provision for the exclusive trial by Special Courts of crimes and of persons accused of crimes, which and who would otherwise have to be tried by the ordinary Courts under the Code. This is the very essence of the intention which the ordinance seeks to carry out. Hence it was obviously imperative that the field of trial by Special Courts should be demarcated from the field of trial by ordinary Courts. The manner in which this has been sought to be done by the ordinance has been seriously attacked and I shall have to consider it presently. Before I do so, however, I think it will be useful to consider the manner in which the whole subject of criminal jurisdiction in the sense in which I am using that expression here has been treated in the Code of Criminal Procedure.

57. The provisions of the Code which deal with this subject are scattered, but I think it may be said that those provisions fall into three separate and distinguishable compartments, Firstly, there is enactment regarding the ultimate limits of the jurisdiction of the Courts under the Code together with a classification of the Courts which the Code creates. This is Section 6 and its structure is very similar to the structure of Section 3 of the Ordinance. Secondly, there is a conferment upon these Courts of power to try and along with this act of investment there is a demarcating of the field of trial as between the different classes of Courts. The provisions which effectuate these ends are amongst others Sections 28, 29, 29A, 29B, 30, 36, 37, 206, 260 and the provisions in chaps. 10,11 and 12 and the schs. 2, 3 and 4. As regards appeal and revision, the enactments are in chaps. 81 and 32. Thirdly, there is a formulation of conditions of a procedural nature for the initiation of proceedings in the Courts. These conditions are contained in Sections 190 to 199A and in chapter 35.

58. The Code contains in permanent form exact information as to what any man's rights are if and when he is to be tried for any crime alleged to have been committed by him. It is not necessary for any man to speculate as to what Court is going to try him or whether, if he is convicted, he will have any and, if so, what right of appeal or revision. The Code is an enunciation by legislation of definite rules governing all matters relating to the trial of persons accused of crime by the Courts which the Code has established, and it is not left to the discretion of any executive authority to determine by what Court a man shall be tried and for what offence he shall be tried. I think it is necessary now to inquire in what manner the Ordinance has treated the very subjects dealt with by the Code in the three compartments which I have just indicated. I would repeat what these compartments are. Firstly, the ultimate limits of the jurisdiction and a classification of the Courts. These matters have been enacted by Section 3 of the Ordinance and with that we are not concerned any further. Secondly, the clothing of the Courts with power to try, and a demarcating of the field of trial as between the different classes of Courts. Thirdly, the laying down of conditions for the initiation of proceedings.

59. Regarding the question of demarcation, the necessity for that in connexion with cases which are to be tried by the Special Courts is of a two-fold nature. It is necessary first to carve out that category of cases which are to be tried exclusively by these Courts, and secondly to indicate which classes within that category are to be tried respectively by Courts of Special Judges, Courts of Special Magistrates and by Summary Courts. j In some previous legislation of an emergency nature which created Special Courts, the first kind of demarcation was to some extent indeed brought about by the exercise of a power with which an executive authority was entrusted to direct cases of a certain kind to be tried by those Courts. But the power so given was expressly confined to cases of an indicated class, the indication being contained partly in the section which conferred the power to make the direction, and partly in a schedule which the section attracted. Let me take as one example, the Bengal Suppression of Terrorist Outrages Act (Bengal Act 12 of 1932). This Act by Section 24 created Special Magistrates. It then enacted the jurisdiction of Special Magistrates by the next section which may e be set out:

Where in the opinion of the Local Government, or of the District Magistrate if empowered by the Local Government in this behalf, there are reasonable grounds for believing that any person has committed a scheduled offence not punishable with death in furtherance of or in connexion with the terrorist movement, or an offence, punishable under this Act, the Local Government or the District Magistrate, as the case may be, may, by order in writing, direct that such person shall be tried by a Special Magistrate.

60. The schedule which was appended to the Act was as follows:

(a) Any offence punishable under any of the following sections of the Indian Penal Code, namely j Sections 121, 121A, 122, 123, 148, 212, 216, 216A, 302, 304, 307, 324, 326, 327, 329, 332, 333, 385, 386; 387, 392, 394, 395, 396, 397, 398, 399, 400, 401, 402, 431, 435, 436, 437, 438, 440, 454, 455, 457, 458, 459, 460 and 506. (b) Any offence under the Explosive Substances Act, 1908; (c) Any offence under the Indian Arms Act, 1878; (d) Any attempt or conspiracy to commit or any abetment of, any of the above offences.

61. Here, as is plainly to be seen, the carving out of the jurisdiction of Special Magistrates was to be accomplished by the exercise of executive orders which were controlled both by the terms of the section which gave to the executive authority the power to make, the orders and also by the schedule. The power to make the orders was a power that was free to range only within confines imposed, first by the schedule, and then by the existence of circumstances which would support a belief that a case had relation to the purposes of the Act. A definite category of cases was very clearly indicated, and a limited discretion was given to direct cases within that category only to be tried by Special Magistrates. The importance of this for purposes of the present argument is that a glance at Sections 24,25 and the schedule would acquaint one with the circumstances which gave rise to the liability of the individual to be tried by Courts of Special Magistrates. Such information was of vital importance and it was enshrined in a sufficiently definite and ascertainable form in the Act to which I have just referred.

62. Regarding the second kind of demarcation necessary under the Ordinance, that is as between Courts of Special Judges, Courts of Special Magistrates and Summary Courts the only line of division which the Ordinance lays down in a certain and ascertainable form is to be gathered from Sections 7, 10, 12, 16 and 18. The distinction enacted in these sections amounts to no more than this : A Summary Court may try offences punishable with imprisonment for a term not exceeding two years, but may also try offences specified in Sub-section (1) of Section 260, Criminal P. C, and a Summary Court may pass any sentence which may be passed by a Magistrate of the First Class under the Code. A Special Magistrate may try any offence other than one which under the Penal Code is punishable with death, and a Special Magistrate may pass any sentence authorised by law except a sentence of death or of transportation or imprisonment exceeding seven years. A Special Judge may try any offence, and may pass any sentence authorised by law. It is quite apparent that the sections of the Ordinance do not make any more definite demarcation than this as between the cases triable by the Courts under the Ordinance. There being in the Ordinance no other enactment of demarcation, the jurisdiction of these several classes of Courts is left to overlap to a very considerable extent. At this point of the present enquiry, it is plainly to be seen that the following things had still to be done : Firstly, a demarcating of those cases which were to be tried by the Courts under the Ordinance from those cases which were to be tried by, the Courts under the Code; Secondly, a more exact demarcation as between the cases triable by Special Judges and by Special Magistrates and by Summary Courts set up under the Ordinance; and thirdly, the laying down of conditions for the taking of cognizance, that is to say, for the initiation of proceedings. Here arises, in my opinion, the most important question of all those questions which we have been called upon to examine for the purpose of determining whether this Ordinance is intra vires of the powers of the Governor-General under Section 72 in Schedule 9 of the Act. That question, put as I concretely as I find it possible to frame it, is this: Is there any provision in this Ordinance which makes the two demarcations just indicated and which enunciates the conditions for the initiation of proceedings? After giving this question the most anxious consideration, I am compelled to answer it J by saying that the Ordinance contains no : such provision, but leaves it instead to the Provincial Government or an officer of the Crown empowered by the Provincial Government in this behalf to do these things by individual direction in individual cases or groups of cases. Section 5 says:

A Special Judge shall try such offences or classes of offences : or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf may, by general or special order in writing, e direct.

Section 6 says:

A Special Judge may take cognizance of offences without the accused being committed to his Court for trial....

Section 10 says:

A Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases... as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf may, by general or special order in writing, direct.

Section 16 says:

A Summary Court shall have power to try such offences or classes of offences, or such cases or classes of cases as the District Magistrate, or in a Presidency town the Chief Presidency Magistrate, or a servant of the Crown authorized in this behalf by the District Magistrate or Chief Presidency Magistrate, may by general or special order direct.

63. The result is that no man accused of an offence may know whether he is to be tried by a Court under the Code, subject to all the safeguards provided by the Code, including a right of appeal or revision under the Code, or to be tried on the mere motion of the Provincial Government or of an officer of the Crown empowered by the Provincial Government, by some one or other of the Special Courts under the Ordinance. The i Provincial Government or an officer of the Crown empowered by the Provincial Government is endowed with a power that is far-reaching, unfettered by rule, unconditional and subject to no supervision by the High Court or by any Court under the Code. It is a power to direct any person accused of any criminal offence to be tried by one or other of the Courts constituted under the Ordinance. The possible mischief Which may flow from the unwise or injudicious exercise of such a power is obvious. Who is to see that any case having no relation whatever to the state of emergency is not directed to be tried by a Court under the Ordinance? What man accused of a punishable offence can know in advance whether he will or will not be tried by a Court under the Ordinance? What authority will watch that a servant of the Crown who directs any person accused of any offence to be tried by a Court under the Ordinance, will not make such direction at the dictates of another or of his own whim? Under the Ordinance the arm of the High Court cannot reach out to control the making of such directions.

64. The exercise of this power with which the Provincial Government and certain officers of the Crown now stand completely clothed cannot be regarded as conditional legislation within the principle in (1878) 3 A. 0. 889.1 The power and the discretion entrusted to the Provincial Government are not by any means, however one regards them, either a 'particular power' or a 'limited discretion' entrusted to the executive within the meaning of the decision in (1878) 3 A.c. 889.1 It is a power to do in individual instances, and by a stroke of the executive pen, that which the Legislature has done by general rule, labouriously and with care, in several sections and schedules of the Criminal Procedure Code; and what the Legislature has done is contained in definite form in those sections and schedules, and it is there for all to see. The jurisdiction of the Courts under the Code is laid out in the Code. The jurisdic tion of the Special Courts under the Ordinance is undetermined until it is attracted to a particular case by the order of an executive authority. In (1878) 3 A.C. 8891 the legislation which was to be brought into force by the Lieutenant Governor had been completely enacted by the Legislature, and the Lieutenant Governor was empowered merely to take advantage of the completed legislation. Here, the Provincial Government has been given the power, first to call the Ordinance into life, and then to do by individual direction in particular cases or groups of cases, the selection to which is left absolutely to the Provincial Government, those singular or collective things which it is intended that a Legislature should do by rule. The essential nature of all legislation is the control of human conduct by directions having the two characteristics; of certainty and uniformity, or, in other words, control by rule. 'A law' says Anson, (Jurisprudence, Vol. I, p. 96), 'is a command which obliges a person or persons to a course of conduct.' Salmond, analysing this definition says, (Jurisprudence, Edn. 9, d page 24):

A law in this sense, therefore, presupposes two essential attributes. The first of these is generality. A command in order to amount to a law, must assume the form of a general rule; a particular command, requiring obedience in the individual instance merely, does not possess the essential characteristic of law.

In a subsequent passage Salmond says:

The law may be defined as the body of principles recognized and applied by the State in the administration of justice. In other words the law consists of rules recognized and acted on by Courts of justice.

65. The clothing of Courts with power to try can only be done by law and the giving and. defining of jurisdiction has always been recognised as the province of legislation. 'Legislation', according to Salmond is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the State.

66. Definitions of such generality as the above are not inconsistent with the large powers of subsidiary legislation which the State increasingly tends in modern times to delegate to subordinate authorities. As Anson has said (Law and Custom of the Constitution, 4th Edition, vol. II, part. I, page 249):

It is in fact clearly impossible for Parliament itself to deal with the issues confronting it at all adequately without delegation. It has no time to examine in detail the technical issues which present themselves, whether in the sphere of patents, copyright, trademarks, industrial property, gas, water regulation, transport, posts, telegraphs, telephones, wireless telegraphy, health, housing, agriculture, industry, manufactures, merchant shipping or Local Government. Still less has it the necessary experience and knowledge to deal with these issues which are for experts to determine. Moreover it is essential in these spheres to have elasticity and the power of change....

67. The objections to which delegated legislation is open have been later summarised by Anson (Law and Custom of the Consti-tution, 4th Edn., vol. n, part IA, p. 257) in the following words:

It has above been pointed out that pressure on Parliamentary time, technicality, the need to meet unforeseen contingencies, the requirement of flexibility, the desire to experiment, and the necessity to provide emergency powers compel delegation. But there are many criticisms : (1) Acts are asserted to be passed in too skeleton form and to open the way to the usurpation by the executive of the powers of Parliament. (2) The facilities afforded to Parliament to scrutinize and control the exercise of powers delegated to ministers are inadequate. (3) Delegated powers may be so wide as to deprive the citizen of protection by the Courts. (4) The powers may be loosely defined and the uncertainty is unfair. (5) There is in certain oases a difficulty of ensuring full publicity. (6) The privileged position of the Crown affords difficulty in securing redress.

68. I have set out the foregoing passage because the objections which apply to subordinate legislation in England apply in principle with equal force to the extensive power with which the Governor-General, acting in his legislative capacity, has by this Ordinance vested the Provincial Government. Indeed, as I have already sufficiently indicated it is not strictly a power to legislate which has been delegated, but a power to do by individual direction in particular cases, what should properly have been brought about by legislation, or at least by rule. The argument that the giving of this power amounts to a delegation of legislative functions has however to be referred to. It is contended that Parliament can delegate legislative authority because it is supreme but it is not within the competence of any Legislature created by the Government of India Act, be it the Provincial Legislature, the Indian or Federal Legislature, or the Governor-General, or Governor exercising legislative functions to do so. This matter has been dealt with by Salmond in the following words (Jurisprudence, 9th Edition, page 210):

Legislation is either supreme or subordinate. The former is that which proceeds from the supreme or sovereign power in the State, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, arid is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the Imperial Parliament is supreme, for 'what the Parliament doth no authority upon earth can undo' (Blakstone, I. 161). All other forms of legislative activity recognised by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities whioh in the exeroise of their delegated funotions remain subject to the control of the sovereign Legislature.

69. Salmond then proceeds to set out the chief forms of subordinate legislation, which according to him, are five in number. I would here quote what he says about two of these forms.

(1) Colonial - The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject to the control of the Imperial Legislature.

. . .

(2) Executive - The essential function of the executive is to conduct the administrative departments of the State, but it combines with this certain subordinate legislative powers whioh have been expressly delegated to it by Parliament, or pertain to it by the common law.

70. The argument is that enactments by the Indian Legislatures to meet emergencies are not on the same footing as Borne recent legislation in England which has been occasioned by the war, because Parliament is supreme and the Indian Legislatures are not. Parliament which alone can delegate has admittedly conferred extensive powers upon executive authorities in England, but it does not follow that the Indian Legislatures can do the same. The argument further is that Parliament has by the Government of India Act itself delegated powers of legislation to the various legislative authorities created by the Act in India and that the only powers of legislation possessed by the latter are those which have been expressly given. They enjoy no powers which have not been expressly conferred or delegated by the Act, and they have no implied power to legislate. As the power to delegate legislative authority has not been expressly given the Governor General cannot when he purports to legislate under Section 72, delegate to the Provincial Government any power to legislate for Courts and for jurisdiction of Courts.

71. The matter is not entirely free from difficulty, for put in the form just stated, it might raise questions which would affect a rule making power conferred upon an executive authority. It is, however, not necessary in the view I take to pursue the discussion further. As I have before indicated the power which has been given by this ordinance to the Provincial Government is a power to effectuate jurisdiction of Special Criminal Courts by making orders in individual cases or groups of cases, and the exercise of that power is entirely unconfined by any rule or condition. I am satisfied, that Section 72 in Schedule 9, Government of India Act, 1935, does not authorise the Governor-General, to leave it to the Provincial Government to make provision in this way for the jurisdiction of the Special Courts contemplated by the ordinance. It is for this reason, and this reason alone that I consider Sections 5,10 and 16 of this Ordinance to be ultra vires of the powers of the Governor-General under Section 72 in Schedule 9, Government of India Act, 1935.

Sen, J.

72. The petitioners have been convicted of having committed various offences punishable under the Penal Code and the rules framed under the Defence of India Act and sentenced to undergo rigorous imprisonment for a period of two years. The trial was held in accordance with the provisions of Ordinance 2 of 1942 by a Special Magistrate appointed under that ordinance. Against this order of conviction they moved this Court and obtained this rule. The only question argued was that Ordinance 2 of 1942 was 'ultra vires' of the Governor-General to make. We did not enter into the merits of the case for obvious reasons. If the ordinance is ultra vires it is not necessary to consider the merits; the convictions and sentences must be set aside, whatever the merits of the case may be, as the Court trying the petitioners was no Court at all. If the ordinance is 'intra vires' we are debarred by Section 26 of the Ordinance from interfering with the decision of the Special Magistrate. I shall now deal with the only question raised before us. The contention of Mr. Meyer for the petitioners is that Ordinance 2 of 1942 is 'ultra vires' of the Governor-General to make and he relies upon two broad grounds for this view. They may be stated thus : (1) Although the Government of India Act of 1935 has given the Governor-General the power to make ordinances in case of emergency, the Governor-General has no power by such ordinance to affect the jurisdiction of the High Court of the law administered therein, nor may he by ordinance alter or affect the powers of the Judges of a High Court in relation to the administration of justice in the Court. (2) Even if he has such powers, Ordinance 2 of 1942 is nevertheless 'ultra vires' and invalid by reason of certain provisions therein contained. In other words, he argues that the Ordinance contains within itself the elements which destroy its validity.

73. I shall now deal with the first ground. Mr. Meyer's argument as I understand it may briefly be summarised thus. Section 110 (b)(ii), Government of India Act of 1935, says that nothing in the Act shall be taken to empower the Federal Legislature or any Provincial Legislature to make any law amending any provision of the Act except in so far as is expressly permitted by a provision of the Government of India Act of 1935. Section 223, Government of India Act of 1935 lays it down that the jurisdiction and powers of the High Court as it existed immediately before the commencement of Part 8 of the Government of India Act of 1935, shall be maintained subject to the provisions of any Order in Council or of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by the Government of India Act of 1935. It is thus clear that express permission is given by Section 223 to the appropriate Legislature to legislate with respect to the jurisdiction and powers of the High Court by virtue of the i powers conferred on that Legislature by the Government of India Act. The Governor-General in case of emergency is empowered by Section 72 of Schedule 9, Government of India Act of 1935 to make and promulgate ordinances having the force of a law passed by the Indian Legislature. This, however, does not mean that the Governor. General can pass Ordinances affecting the jurisdiction and powers of the High Court. The Ordinance has the like force of a law passed by the Indian Legislature, but it is not an Act of the Indian Legislature and Section 223 refers only to an Act of the appropriate Legislature. Further, Section 110 (b)(ii) requires an express permission to be given to the Legislature to amend any provision of the Government of India Act, while Section 223 gives an express permission to the Indian $ Legislature to enact laws in respect of the jurisdiction and powers of the High Court, no such express permission is given to the Governor General when he is vested with the power to make ordinances having the force of law. That being so, there is no power in the Governor-General to take away any portion of the jurisdiction of this Court by an Ordinance. The answer to this argument is, in my opinion, to be found in Section 311 (6), Government of India Act of 1935. That section runs as follows:

Any reference in this Act to Federal Acts or laws or Provincial Acts or laws, or to Acts or laws of the, Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made by the Governor-General or a Governor-General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act.

74. Thus, the words 'any Act of the appropriate Legislature' occurring in Section 223 must be construed as including a reference to an Ordinance made by the Governor-General. The Governor-General is thus given express permission to make ordinances affecting the jurisdiction of this Court. Mr. Meyer contended that we should not interpret the words' 'Act of the appropriate Legislature' in this fashion because those words in Section 223 are foli lowed by the words 'enacted by virtue of powers conferred on that Legislature by this Act.' He contends that the use of the word 'Legislature' with a capital 1 in this clause indicates that only the Federal and Provincial Legislatures are being referred to and that the word 'Legislature' cannot be taken to mean the Governor-General as ordinance maker. I am not impressed by this argument. The word 'Legislature' means an authority empowered to make laws. The Governor-General when he promulgates an ordinance makes a law and is therefore in that capacity a Legislature.

75. There is another answer to this argument of Mr. Meyer. Clause a, Letters Patent, of this Court says that the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in cases of emergency under Section 72, Government of India Act of 1915 and may be in all respects amended and altered thereby. Mr. Meyer admits that if Section 72, Government of India Act of 1915, were still in force the Governor-General in cases of emergency would have complete-power to make ordinances affecting the jurisdiction of this Court. But he says that the entire Government of India Act of 1915 has been repealed by the Government of India Act of 1935 and that the present Section 72 of Schedule 9, Government of India Act of 1935, although it is in the same terms as Section 72, Government of India Act of 1915 is not in law the same thing as Section 72, Government of India Act of 1915 and therefore it cannot have the effect given to Section 72 of the Act of 1915 by ol. 44, Letters Patent. It is quite true that the Government of India Act of 1915 has been repealed as a whole by the Government of India Act of 1935. Section S17, Government of India Act of 1935, how-ever, re-enacts Section 72, Government of India Act of 1915 in Schedule 9. Now, what is the effect of this re-enactment? Mr. Ahmad appearing on behalf of the Crown draws our attention to the Interpretation Act of 1889 (52 and 53 victch. 63). Section 38 of that Act says that where an Act is repealed and any provision of the repealed Act is re-enacted with or without modification, references in any other Act to this repealed provision shall, unless the contrary intention appears, be Conatrued as references to the provision so re-enacted. Therefore, the reference in ol. 44, Letters Patent to Section 72, Government of India Act of 1915 must be construed as being a reference to the provisions of Section 72 of Schedule 9, Government of India Act of 1935. If this is done, it becomes abundantly clear that the Governor-General has power to pass Ordinances affecting the jurisdiction of this Court.

76. Mr. Meyer sought to meet this argument by saying that Section 38, Interpretation Act, dealt only with a reference in an Act to a repealed provision which has been re-enacted, but it did not deal with a reference to a re-enacted repealed provision in something which was not an Act. He pointed out that the Letters Patent was not an Act and that therefore the reference in the Letters Patent to a provision which has been re-enacted will not be affected by the rule laid down in Section 38, Interpretation Act. In my opinion, this argument cannot prevail. It is true that the Letters Patent is not an Act, but it is granted by the Sovereign by virtue of an Act passed by the Parliament and it should be construed in the same way as an Act. Further, even if Section 38, Interpretation Act, does not apply in terms to the Letters Patent, I have no hesitation in saying that the principle underlying Section 38 should be applied in construing ol. 44, Letters Patent. In connexion with the other argument dealt with in the earlier part of this judgment, viz., that the Governor-General is not a Legislature I may point out that Section 18, Interpretation Act, defines the expression ' Legislature ' when used with reference to a British possession e as meaning 'the authority competent to make laws for a British possession.' The Governor-General is, in the ease of an emergency, an authority competent to make laws to meet the emergency. He is therefore a Legislature. In view of what has been said above I am of opinion that the first ground urged on behalf of the petitioners must fail.

77. The second ground for inviting us to hold that the Ordinance is 'ultra vires' and invalid is a substantial one. There are three broad reasons urged in support of this branch of the argument. Firstly, Mr. Meyer, contends that, although the preamble states 'whereas an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts' nevertheless it is unmistakably clear from the very provisions of the Ordinance that the Governor-General was not of opinion that an emergency which necessitated the promulgation of this Ordinance existed. He then argues that if the Governor-General did not think that such an emergency existed he had no power to make the Ordinance. Now, let us examine what powers are given to the Governor. General to make and promulgate Ordinances. These powers are to be found in Section 72 of Schedule 9, Government of India Act, 1935, which is as follows:

The Governor-General may, in cases of emergency make and promulgate Ordinances, for the peace and good government of British India or any part thereof and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.

78. There has been an amendment of the section by an Act of Parliament, viz., the India and Burma (Emergency Provisions) Act of 1940 (3 & 4 Geo. VI, Ch. 33), which for the period mentioned in Section 3 of that Act removes the limit on the period during which an Ordinance may be in force. This amendment, however, does not in any way touch the particular question now under discussion. The words of Section 72 make it clear that the Governor-General has been given the power to make an Ordinance only under a certain specified condition and only for a specified purpose. The prerequisite is the existence of an emergency and the specified purpose is to ensure peace and good government. In other words, he cannot make and promulgate an Ordinance unless there is an emergency which calls for the exercise of his special legislative power given by Section 72 and his Ordinance must be a measure designed to ensure peace and good government endangered by the emergency. It follows from this that an Ordinance made and promulgated when there is no emergency which necessitates the exercise of this special legislative power of the Governor-General is ultra vires. Again, the words of the section indicate that an Ordinance passed for purposes other than the peace and good government of British India would likewise be ultra vires. Mr. Ahmed on behalf of the Crown contended that it is not for a Court of law to decide whether or not an emergency which necessitates the promulgation of the Ordinance exists, nor is it for a Court of law to decide whether or not the Ordinance conduces to peace and good government; the only person to judge these matters is the Governor. General. He argued that if this view be accepted, this Court cannot go into the question whether or not the Governor-General was of opinion that an emergency which necessitates the promulgation of this Ordinance exists. In support of this view he referred to well-known decision of the Judicial Committee in 58 I.A. 169.2 In my opinion the decision in 58 I.A. 1692 does not support the argument of Mr. Ahmed. Let us examine what the Privy Council have said in that case. This is what was said:

The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action which is to be judged as such by someone. It is more than obvious that the someone must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.

Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this Board declaring that once the Ordinance was challenged in proceedings by way of habeas corpus the Crown ought to prove affirmatively before a Court that a state of emergency existed or (b) by a finding of this Board after a contentious and protracted enquiry that no state of emergency existed and that the Ordinance with all that followed on it was illegal. In fact, the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it.

It was next said that the Ordinance did not conduce to the peace and good government of British India. The same remark applies. The Governor-General is the judge of that.

79. Let us analyse what these observationse mean. They certainly do not mean that the power of the Governor-General to promulgate an Ordinance is absolutely untrammelled. To say this would be to nullify the express words of Section 72 which stipulate that it is only in cases of emergency that the Governor-General can make and promulgate an Ordinance. All that the Judicial Committee has said in this connexion is that, if the Governor-General judges that an emergency exists the Courts are not competent to say that it does not exist. In other words an emergency exists if the Governor. General thinks that an emergency exists. It j follows from this view that the Governor. General has power to promulgate an Ordinance only if he thinks or judges that there is an emergency which necessitates the promulgation of the Ordinance. To put it in another way, even if an emergency exists and the Governor-General does not think there is an emergency he cannot promulgate an Ordinance; on the other hand, if there is really no emergency but the Governor-General thinks there is an emergency he has the power to promulgate an Ordinance. It is what the Governor-General thinks that matters. The Privy Council has nowhere < said that the Court is not permitted to decide whether or not the Governor-General has judged that there is an emergency. What the Privy Council has said is that if the Court finds that the Governor-General has judged that there is an emergency the Court is bound by that judgment. The Court must, however, decide, when called upon to do so, whether or not the Governor-General has in fact judged that there is an emergency. It is no argument to say that the Court cannot delve into the mind of a person. This will certainly not be the first time that the Court is called upon to determine the state of a, man's mind. The Court has to do this constantly and the Evidence Act abounds in provisions which demand that the Court shall determine the state of mind of a person. The state of a man's mind is a question of fact capable of being determined like any other question of fact. Now, if from the very provisions of the Ordinance it is established that the Governor-General does not think that there is an emergency is not this Court bound to declare that the Ordinance is ultra vires? I have no doubt that this Court is so bound. Suppose, in this Ordinance the Governor-General had said; 'I do not think there is an emergency which necessitates the promulgation of this ordinance but nevertheless I promulgate it.' Obviously, the ordinance would be ultra vires and the Court would have power to declare it to be so. If lie had said, 'I do not think there is an emergency which necessitates the promulgation of this Ordinance but nevertheless I promulgate it because at some future date an emergency may arise which may require such an Ordinance,' would that Ordinance be valid? In my opinion it would be equally invalid as the Ordinance just before mentioned. The Governor. General, it is true, is the sole judge to determine whether or not an emergency exists, but for the purposes of promulgating ordinances he is not vested with prophetic powers which would enable him to legislate with respect to some emergency which has not arisen. His powers of legislation are limited to making an ordinance when he thinks an existing emergency demands it. Emergency legislation is something drastic and immediate - it is not con-templative legislation.

80. An emergency is nowhere defined in the Government of India Act, 1935, but the meaning given to the word may be gathered from Section 42 (1) of that Act which makes provision for emergency legislation by Ordinance by ! the Governor-General. The section is not in force as it occurs in part 2 of the Act which ia to come into force when Federation is established. For the transitional period, Section 72 of Appendix 9 tabes the place of Section 42 so far as emergency legislation is concerned. Section 42 runs as follows:

If at any time when the Federal Legislature is not in session the Governor-General is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to Mm to require.

81. Instead of using the words 'in case of emergency' which are used in Section 72 of Schedule 9 the words used are: 'The Governor General is satisfied that circumstances exist which renders it necessary for him to take immediate action.' This is what is meant by 'emergency.' The Judicial Committee in 58 I. A. 1692 has given the same meaning to the phrase 'in case of emergency.' This is also the dictionary meaning of the word 'emergency.' An emergency according to the Oxford Dictionary is 'a sudden juncture demanding immediate action.' Now let us examine the Ordinance in order to determine whether the Governor-General judged that there was a 'sudden juncture demanding immediate action' or whether he was 'satisfied that circumstances existed which rendered it necessary for him to take immediate e, action.' This is what the Ordinance says:

Whereas an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts;

Now, therefore, in exercise of the powers conferred by Section 72 of the Government of India Act, as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor-General is pleased to make and promulgate the following Ordinance:

1. (1) This Ordinance may be called the Special Criminal Courts Ordinance, 1942. (2) It extends to the whole of British India. (3) It shall come into force in any Province only if the Provincial Government being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official / gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is resoinded:

Provided that any trial or proceeding which was pending at the time of such rescission may be continued and completed as if the provisions of this ordinance were still in force.

82. The preamble does say that an emergency exists which renders it necessary to provide for the setting up of Special Courts but what follows in Section 1 (8) clearly contradicts the preamble. If the Governor-General judged that such an emergency had arisen he would take immediate action by setting up Special Courts. He does nothing of the sort. He sets g up nothing. He says that the Ordinance itself is not in force and shall not come into force until the Provincial Government considers that it should be brought into force by reason of its being satisfied that a certain kind of emergency exists. I would stress here that in cases of emergency the Governor-General has power to promulgate Ordinances for the peace and good government not only of India as a whole but of any part thereof. There is no bar to the Governor-General himself promulgating an ordinance for the peace and good government of any province, if he is of opinion that an emergency existed in that province. But he does not do this. He promulgates an ordinance, but he does not put it into force anywhere; on the contrary he provides in Section 1(8) that it cannot be in force in any province until the Provincial Government is satisfied that an emergency exists and considers that the emergency necessitates the Ordinance being put into force. I draw attention to the words 'only if in Section 72. Why does he do this? The only reasonable answer is because he did not think at the time of promulgating the ordinance that any emergency which required to be met immediately by this ordinance actually existed. If he thought that an emergency existed which, in the words of the Privy Council in 58 I. A. 169,2 'demanded immediate action' he would surely put the ordinance into force at once or fix a definite date and the earliest possible date when it would come into force; he certainly would not postpone its effectiveness to some indeterminate date to be fixed by some one else when that some one else considered that a particular emergency which called for the application of the ordinance had arisen. The preamble and Section 1(3) are contradictory, and read together they indicate that the Governor General has misdirected himself as regards the conditions under which he is given power to promulgate an ordinance. When a preamble contradicts the jenacting portion of a statute and that portion is quite clear, the enactment must prevail over the preamble. This principle was laid down by the House of Lords in Powell v. Kempton Park Race Course Co. (1899) A.C. 143 : 68 L.J. Q.B. 392 at page 157. The Earl of Halsbury L.C. said:

Two propositions are quite clear - one that a preamble may afford useful light as to what a statute intends to reach, and another that, if an enactment is itself clear and unambiguous no preamble can qualify or cut down the enactment.

83. Again at page 185 of the same report Lord Davey says:

Undoubtedly - I quote from Chitty, learned Judge's judgment, words with which I cordially agree - 'it is ', settled rule that the preamble cannot be made use of to control the enactments themselves, when they are expressed in clear and unambiguous terms.

84. Section 1 (3) contains a clear and unambiguous statement. By it Governor General postpones the operation of the Ordinance until the Provincial Government is satisfied that the emergency requiring the Ordinance has arisen. In other words he says that the emergency requiring the Ordinance has not yet arisen. The preamble cannot be used to [alter or detract from or add to this clear and unambiguous statement in the enactment ,itself. I am convinced that the Governor-General did not think that an emergency necessitating the Ordinance existed; what he thought was that an emergency necessitating this Ordinance may arise at some future date from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack. The words of Section 72 are clear; an Ordinance can be pro-Biulgated only 'in cases of emergency.' The words are not 'in case of apprehended emergency or future emergency.' The emergency must be in existence or in the words of the Judicial Committee in 58 I. A. 169a the Governor. General must judge that an emen ' gency which demands immediate and drastic action is in existence. A little alteration in the Ordinance will bring out more clearly the contradiction between the Preamble and the enactment. If, instead of the words 'Provincial Government' in Section 1 (3) the words ' Governor-General' were substituted, the Ordinance would read thus:

Whereas an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts;

Now therefore in exercise of the powers conferred by Section 72, Government of India Act, as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor-General is pleased to make and promulgate the following ordinance.

1 (1) This ordinance may be called the Special Criminal Courts Ordinance, 1942. (2) It extends to the whole of British India. (3) It shall come into force in any Province only if the Oovemor-Oeneral being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded:

Provided that any trial or proceeding which was pending at the time of such rescission may be continued and completed as if the provisions of this ordinance were still in force.

85. If the ordinance was framed thus (and the Governor. General having the right to pass Ordinances in respect of any Province could very well have framed it thus) what would be the inevitable conclusion? Would it not be that the Governor. General when promulgating the Ordinance was not of opinion that an emergency which required the operation of the Ordinance then existed. The fact that the Ordinance as it stands delegates the function of deciding whether the emergency exists to the Provincial Government makes no difference to the force of the argument that the Governor. General was not of opinion that an emergency existed, it only raises a further difficulty in the way of supporting the Ordinance - a difficulty which I shall presently show is unsurmountable. It has been suggested that the Governor-Gene, ral considered that an emergency existed which made it necessary not to set up Special Courts immediately but merely to provide for the setting up of Special Courts and that it is for this reason that the Ordinance is framed not to set up Special Courts immediately but only to make provision for the setting up of Special Courts by Provincial Government, when the Provincial Government is satisfied that an emergency requires it. In this view, it is argued, that it cannot be said that the Governor-General did not think that an emergency necessitating this kind of ordinance' existed.

86. This, in my opinion, is a specious argument. What provides for the setting up of the Special Courts? It is the ordinance and nothing else. What is postponed and left to be brought into force by the Provincial Government when the said Government is satisfied that an emergency exists? It is that very ordinance itself. Section 1 (3) says so in terms. It says that 'it (the ordinance) shall come into force.' Thus the very measure which is providing for the setting up of Special Courts is postponed till an emergency necessitating the measure arises. It follows that the person promulgating such a measure does not think that any emergency requiring the measure exists. In my opinion, the provisions of this ordinance proclaim unmistakably that the Governor-General did not think that an emergency which necessitated the ordinance actually existed. He may have thought that such an emergency may arise at some future time. That, however, is not enough. The Governor-General had no power to promulgate this ordinance unless he was of opinion that the emergency requiring it actually existed; it is therefore ultra vires of the Governor General.

87. My Lord the Chief Justice and my learned brother Khundkar have said that we cannot say that the emergency did not exist because the emergency is the war which is a 'historical' fact of which we must take judicial notice. They hold the view that in the face of existing historical facts, this Court is bound to hold that there was an emergency and therefore to hold that the Governor. General had judged that there was an emergency. To do otherwise they say, would be to shut our eyes to well-known historical facts. I respectfully dissent from this view. The Privy. Council has said in 58 I. A. 169,2 that once the Governor-General has judged that there is an emergency, this Court cannot say that there was none whatever may be the historical facts. If we cannot look at historical facts to decide that there was no emergency we are equally incompetent to look at historical facts for the purpose of deciding that there is an emergency. We are to be completely blind in this respect and I not blind in the Nelsonian manner. There is no scope for putting the telescope once to the blind eye and once to the sound one. What I have taken pains to shew is that the Ordinance itself proclaims that the Governor-General has not judged that there is an emergency. In the preamble he says that an emergency necessitating the Ordinance has a arisen but in Section 1(8) he says that it has not that it is yet to arise - and the canons of statutory interpretation say that Section 1(3) shall prevail over the preamble. If my interpretation of Section 1(3) be correct, then whatever may be the historical facts, we cannot say that an emergency necessitating the Ordinance exists, as that would amount to contradicting the Governor-General on the question of the existence or non-existence of the emergency and this We are not permitted to do.

88. My Lord the Chief Justice has referred to the proclamation of the Governor-General under Section 102, Government of India Act, 1935. y He says that this proclamation showed that there was an emergency and that it could not be said thereafter that no emergency existed. I respectfully disagree with this view. The proclamation of emergency under Section 102 was made for the purpose of giving power to the Federal Legislature to make laws for a province with respect to any of the matters enumerated in the Provincial List and for this purpose only. The emergency justifying an Ordinance is quite another matter. A proclamation of emergency under Section 102 will not necessarily be sufficient to empower the Governor-General to make an < Ordinance. Before he can make an Ordinance the Governor. General must judge that an emergency which necessitates the particular Ordinance exists. This the Governor-General has not judged when promulgating this Ordinance.

89. A second reason is canvassed by Mr. Meyer for holding that the Ordinance is ultra vires. This is what he says: Parliament has entrusted the Governor-General and the Governor-General alone with the duty to judge whether such an emergency exists as would justify him in promulgating an Ordinance. The Governor. General cannot delegate the duty to determine whether an emergency exists to anyone. In the present case the Governor-General has not judged whether an emergency which necessitates this Ordinance exists; but he has left it to the Provincial Government to do this and consequently the Ordinance is ultra vires.

90. We have therefore to determine first who is the person who in this case is deciding whether such an emergency exists as would necessitate this Ordinance and secondly, whether that person has the right to decide this matter. Let us again look at the Ordinance. In the preamble the Governor-General says that 'an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts.' Had this statement remained uncontradicted perhaps, one could have said little in support of the present argument. But in Section 1 (3) the Governor-General says that the Ordinance is not to come into force until the Provincial Government is satisfied that an emergency has arisen from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack and being so satisfied declares it to be in force by a notification in the Gazette. It is thus clear that the Ordinance has no force at all until the Provincial Government decides to bring it into force upon being satisfied that an emergency necessitating the Ordinance exists. I would point out here that Section 1 (3) does not say that the Provincial Government shall bring the Ordinance into force whenever there is a hostile attack on India or on a country neighbouring on India or whenever there is imminence of such an attack. Some at least of these events had actually happened when the Ordinance was promulgated. Burma had been invaded. All or any of the above mentioned events may happen and yet the Provincial Government may not according to the terms of the Ordinance be justified : in not bringing it into force.

91. One must be careful to distinguish between an emergency and the events which may lead to an emergency. They are not equivalent matters. An invasion may lead to food shortage; this would be an emergency necessitating one kind of legislation or it may lead to sabotage and that would require another type of legislation. In the present Ordinance very wide powers are given to the Provincial Government in-fact overriding powers are given. The Provincial Government may let the Ordinance remain inert as it was when promulgated by the Governor General or it may give it life. The Provincial Government is left to decide whether an emergency of such a description has arisen as would justify the Ordinance being put into force.

92. A recent amendment of the Ordinance makes the point I am labouring clear. The Special Courts (Second Amendment) Ordinance of 1942 (Ordinance 42 of 1942 brought into force in August 1942) adds another event from which an emergency may arise. It is 'any disorder in the province.' It is obvious that the Provincial Government is not bound to bring the Ordinance into force as soon as any disorder occurs in the province. The Provincial Government ia asked to judge whether such disorder has created an emergency of such description as would justify the Ordinance being put into force. If the words of the preamble and Section 1(3) are read together and analysed this is what we find the Governor-General saying in effect: 'I am of opinion that if an emergency arises from invasion, imminence of invasion or internal disorder Special Criminal Courts should be set up, the power of the High Court should be curtailed and certain other things should be done. I leave it however to the Provincial Government to decide whether such are emergency has arisen by reason of these events as would require the creation of Special Courts, the curtailment of the power of the High Court and the doing of the other things mentioned in the Ordinance.'

93. I can quite realise an emergency arising out of imminence of invasion which would justify an Ordinance curtailing the right of the subject to have recourse to the High Court. I can also envisage an emergency arising from the imminence of invasion which could not possibly justify an Ordinance cur-tailing the powers of the High Court to rectify injustice. When the High Court is functioning normally, sitting in its usual place and dealing with intricate civil matters as if nothing unusual had happened I find it difficult to appreciate how a curtailgment of its powers to do justice in criminal matters can help to solve any emergency arising out of a threatened invasion. In my opinion in these conditions such curtailment would further intensify the emergency by creating panic among the people. The position would be different if owing to bombing or some similar cause the High Court had to disperse to places which were not easily accessible to the people. However, it is not for this Court to decide whether the Ordinance is justified or not; in this matter also the Privy Council has said that the Governor-General is the sole judge. I have digressed i somewhat, but I have done so to emphasise the point that the Governor-General is leaving it entirely to the Provincial Government to decide not only if an emergency exists but also to decide whether the emergency is of such a description as would justify the Ordinance.

94. The Provincial Government has decided! that even in Calcutta where there is no riot or civil commotion, where all Courts including the High Court are sitting and carrying out their normal duties in a normal fashion a person wrongly convicted and sentenced by a Special Criminal Court situated at a place a few minutes walk from this Court will not have the right to demand any redress from this Court. I have referred to the conditions under which the Ordinance has been brought into force in Bengal not for the purpose of ventilating the opinion, which I hold, that there is no necessity for this Ordinance at any rate in this part of Bengal - as my opinion regarding the propriety of enforcing the Ordinance is of no relevance in a discussion regarding its validity; but I refer to these matters to illustrate the fact that while it is quite possible for the Governor -General and the Provincial Government to hold different views on the question whether such an emergency exists in Bengal as would justify this Ordinance, the Governor. General abdicates his duty to judge this matter and gives the Provincial Government the complete and exclusive right to decide it. Having regard to all these circumstances is there any doubt as to the person who in this case is deciding whether such an emergency exists as would justify this Ordinance? In my opinion there can be none. It is the Provincial Government which is being made the sole judge of this emergency.

95. The next point to decide is whether the Governor General can empower the Provincial Government to decide whether an emergency which necessitates the Governor-General's Ordinance exists. We must again go back to Section 72 of Schedule 9, Government of India Act, 1935, and to the decision of the Privy Council in 58 I. A. 1692 where this section was interpreted. Section 72 gives power to the Governor-General to legislate by Ordinance if an emergency requiring the Ordinance exists. Who is to decide whether an emergency exists? The Judicial Committee in emphatic terms has said that it is more than obvious that the ' Governor-General and he alone' is to judge whether a state of emergency exists. After this, there is no room for suggesting that any one else has the power to decide this matter. I wish to make it clear that I am not now dealing with the question of the delegation of legislative powers, but with the question whether a particular function assigned to the Governor-General by Parliament can be assigned by him to any one else. Parliament has entrusted to the Governor-General the judicial function of deciding whether such an emergency exists as would justify him in promulgating an Ordinance. I have described the function as a judicial one deliberately. The decision whether or not an emergency necessitating the exercise of his ordinance-making powers exists is not a mechanical act which involves no matter of discretion and which can be performed by one person as well as by any other. It is a function which involves the exercise of one's deliberative faculties and faculties of judgment and discretion. Where the performance of such a function is entrusted by Parliament to any one he must discharge it himself, he cannot unless expressly permitted to do so by Parliament, delegate this function to any one else. The doctrine 'delegata potestas non potest delegari' (a delegated power cannot be delegated) is one, which is usually applied in cases arising out of contract, but the principle of that doctrine is of universal application and would apply in this case. If authority be needed for this proposition I would refer to the case of 19 Howell state Trials 10307 at p. 1063 where it was observed by Lord Camden that a Magistrate can have no assistant nor deputy to execute any part of his employment because the right is personal to himself and a trust that he can no more delegate to another than a justice of the peace can transfer his commission to his clerk.

96. In giving the Governor General ordinance-making powers, Parliament imposed the duty upon the Governor General to judge whether or not an emergency which necessitated an Ordinance existed and that trust he cannot delegate to another. In the present ease the Governor-General has delegated this trust or function to the Provincial Government and this makes the Ordinance ultra vires. To meet this argument, Mr. Ahmed on behalf of the Crown, referred us to the well-known decision of the Privy Council in 5 I. A. 1781 and also to certain recent decisions regarding this Ordinance of different High Courts where 5 I. A. 1781 was relied upon to repel the contention that this Ordinance is ultra vires. The decisions are Salig Ram v. Emperor : AIR1943All26 and an unreported decision of the High Court of Bombay A.I.R. 1943 Bom. 169 (F. B.).

97. I shall first deal with 5 I.A. 178.1 In 1869 the Governor-General in Council, which was then the Indian Legislature, passed an Act purporting, inter alia, to remove the Garo Hills from the jurisdiction of the Courts of Civil and Criminal Jurisdiction and to vest the administration of civil and criminal a justice within that territory in such officer as the Lieutenant Governor of Bengal might from time to time appoint. The Act was to come into operation on such date as the Lieutenant Governor should by notification in the Calcutta Gazette direct. By Section 9 of the Act the Lieutenant Governor was em-powered from time to time by notification in the Calcutta Gazette to extend 'mutatis mutandis' all or any of the provisions of the Act to the Jaintia Hills, the Naga Hills, etc. The question arose whether this Act was intra vires of the Indian Legislature. The majority of a Full Bench of this Court held that Section 9 of this Act was in excess of the legislative powers of the Indian Legislature because that section was not legislation but a delegation of legislative power, inasmuch as, it was left to the Lieutenant Governor to extend the Act or such portion of the Act as he thought fit to different areas. The Judicial Committee held that the decision of the majority of the Pull Bench was wrong and allowed the appeal. This is what their Lordships said:

But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and a principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general, scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it) it is not for any Court of justice to inquire further, or to enlarge constructively those conditions and restrictions.

98. Again (at page 195) this is what their Lordships say:

The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and, in many circumstances, it may be highly convenient.

99. These observations of the Judicial Committee are relied upon by the Crown as a complete answer to the present argument that the ordinance is ultra vires because the Governor-General by Section 1 (3) of the Ordinance has delegated to the Provincial Government a function entrusted by Parliament to the Governor-General alone viz., the function of judging whether or not an emergency necessitating the ordinance exists. In my opinion an analysis of the decision in (1878) 3 A. C. 8891 will show that it does not answer this argument urged on behalf of the petitioners / and that it has really very little to do with the point under discussion. The Judicial Committee were dealing with an Act of the Indian Legislature, a body clothed with general legislative powers by the Indian Councils Act passed by the British Parliament. I would emphasise that the Judicial Committee do not say that an authority clothed with general legislative powers can delegate such general legislative powers to another authority. On the contrary they said that this could not be done. Their view was that there had not been any such delegation in this case but only conditional legislation. At g p. 194 this is what they observed:

Their Lordships agree that the Governor-General in Council (i.e. the then Indian Legislature) could not by any power of enactment create in India, and arm with general legislative authority a new legislative power not created or authorised by the Councils' Act. Nothing of that kind has, in their Lordships' opinion, been done or' attempted in the present case.

100. As I have said before I am not at present dealing with the question of delegation of legislative powers at all, but with the question whether the judicial function entrusted to the Governor-General by Parliament of deciding whether a particular type of emergency exists which required legislation by i ordinance could be delegated to some one else. (1878) 3 A. c. 8891 has not dealt with this question at all; it was not a question which arose for consideration in the case and nothing which was said in (1878) 3 A. c. 8891 can be taken to indicate that such functions can be delegated. In fact the general principle underlying the maxim 'delegata potestas now potest delegari' was expressly recognised by their Lordships when they said that the Indian Legislature which was clothed with general legislative authority by Parliament could not clothe any other body with such general legislative authority. What the Privy Council decided was only this : When an authority is given plenary or unconditional powers of legislation with certain limits prescribed by Parliament, it can within those limits do anything which Parliament could have done. Having unconditional powers it could pass conditional legislation. The Privy Council have not said that when an authority is given only conditional powers of legislation it can legislate beyond those conditions; nor have they said that where an authority has to decide whether a certain condition precedent giving it power to legislate exists, it can leave the decision of that matter to some one else. Parliament has enacted that the Governor-General can legislate by ordinance only on condition that the Governor-General is of opinion that an emergency requiring the Ordinance exists. Nothing said in (1878) 3 A. C. 8891 can be interpreted to permit the Governor-General leaving anyone else to decide whether or not an emergency exists.

101. Where an authority is given plenary power to do a certain thing by legislation, it may be that that authority can validly make a law whereby it empowers someone else to do that thing. I do not say that this can be done, but admitting for the sake of argument that (1878) 3 A. C. 8891 has decided that this can be done, I would still say that the contention of Mr. Meyer that the Governor-General cannot delegate his function of judging whether an emergency exists to anyone, remains unassailable. If the Governor. General had been given power by Parliament to declare by legislation that an emergency existed it may be that he could by Ordinance empower the Provincial Government to make such a declaration. But Parliament has not given this legislative power to the Governor-General. The Governor-General has no power to legislate; by Ordinance at all until he first judges that there is an emergency requiring the Ordinance. There is therefore no power in the Governor-General to legislate by Ordinance that Provincial Government shall decide whether an emergency necessitating the Ordinance exists. I shall now deal briefly with the decisions of the other High Courts regarding the points raised. In A.I.R. (30) 1943 ALL. 26,8 the argument was that inasmuch as the Ordinance was not put in operation on the date of its promulgation it must be presumed that no emergency existed and therefore the Ordinance was bad. This argument was met by Iqbal Ahmad C. J. thus:

The short answer to this contention, to my mind, is that the Governor-General is the sole judge as to the existence or absence of an emergency and accordingly, the validity of an Ordinance which is otherwise intra vires the Governor-General cannot be called in question on the ground that no emergency as a matter of fact existed.

102. He then referred to 58 I. A. 169.2 It seems that the point of view placed before us by Mr. Meyer, viz., that the Ordinance shows that the Governor. General did not judge there was an emergency, was not placed be-fore the Allahabad High Court. What the Chief Justice has said there is no answer to the point raised in this Court. It was also argued in that case that the Governor-General had delegated the determination of the question of emergency to the Provincial J 'Government and that such delegation was not permissible. The Chief Justice met the point thus:

If the Ordinance was validly promulgated on 2nd January its validity could not be questioned on the ground that its enforcement was deferred and was made dependent on any specified set of facts. The power to promulgate an Ordinance necessarily carries with it the power to specify the conditions necessary for its enforcement.

103. He referred in support of his view to the case in (1882) 7 A. C. 8295 which followed (1878) 3 A. 0. 889.1 With great respect to the learned Chief Justice I am unable to agree with his view. He starts by saying 'If the < Ordinance was validly promulgated on 2nd January.' Certainly, if it was validly promulgated its validity could not be challenged. The question is whether it was validly promulgated. Next, the question raised was not one of merely deferring the enforcement of a valid law; the question related to propriety of the delegation of a judicial function to decide on a certain matter. This question was not considered by the learned Chief Justice. In A. I.E. (30) 1943 Pat. 219 it was argued that the Governor-General could, leave the question of the existence of an emergency to anyone else. Next it was argued that ) the fact that the question regarding the existence of the emergency was left to the Provincial Government showed that there was no emergency. Lastly, it was said that the fact that it was left to the Provincial Government to decide when to bring the Ordinance into force also showed that there was really no emergency. All these arguments were met by saying that in 581. A. 1692 the Privy Council said that the Governor. General was the sole judge of whether an emergency existed. Fazl Ali J. said 'the mere recital in the preamble that there was an emergency is enough.' He goes on to say that once there is such a recital then the Ordinance must be held to be a good Ordinance and all the provisions made therein including the provisions of Section 1(3) by which the Provincial Government are to decide where the Special Courts are to be constituted must also be held to be good.

104. The question of the validity of the delegation of the function to decide whether an Anergency existed or not was not specifically dealt with at all. I must respectfully-disagree with the view of Fazl Ali J. that the statement in the preamble prevents us from deciding whether or not the Governor-General had judged that an emergency existed. Nor can I agree with him that this statement in the preamble protects every other provision in the Ordinance from being declared illegal. Fazl Ali J. referred to (1878) 3 A. C. 8891 when dealing with the postponement of the enforcement of the Ordinance. As I have said before, (1878) 3 A. c. 8891 has not dealt with the question of the propriety of the delegation of the function of the Governor-General to decide whether an emergency exists so it is not necessary for me to deal with that part of the Fazl Ali J.'s judgment.

105. In. I.L.E. 1943Nag. 733 it was argued that the Governor-General had promulgated the Ordinance before an emergency had arisen and had abdicated his legislative authority in favour of the Provincial Government to promulgate the Ordinance when the actual emergency arose. Niyogi J., relied on 58 I. A. 1692 and said that the Governor-General was the sole judge to decide whether an emergency existed and added 'It must be assumed that there was an emergency when he declared that there was.' He went on to say that the Ordinance was promulgated to meet an emergency which was likely to become more acute and all that .S. 1 (3) did was to indicate at what acute stage the Ordinance was to be put in force. He then relied on (1878) 3 A. C. 8891 and held that the Ordinance was intra vires of the Governor.General. All I need say is that the precise form of the arguments addressed to us was different from the arguments addressed to Niyogi J. I would, respectfully add that I am not able to accept his interpretation of Section 1 (3) for the reasons which I have already given when dealing with the argu. ments addressed to us. There remains an unreported case decided by the Bombay High Court which was placed before us by the learned Deputy Legal Remembrancer, viz., cr. Application No. 431 of 1942 A.I.R. 1943 Bom. 169 (P.B.). Dealing with the argument that the Ordinance showed that there was no existing emergency because its enforcement was postponed. Beaumont C. J. said this:

The Governor-General has said that an emergency exists, and to say that there cannot be an emergency, unless it is necessary instantly to bring the terms of the Ordinance into operation, is to suggest that there can be no emergency with which the Governor-General can deal before it arises. It suggests that the Governor-General can never exercise any foresight in the protection of the State.

106. With great respect to Beaumont C.J., I must say that I entirely disagree with him in his view that the Governor-General can promulgate an Ordinance before an emergency arises. He can exercise his foresight and con. template Ordinances but he can promulgate them only when an emergency exists. Section 72 as interpreted by the Judicial Committee in 58 I. A. 1693 makes this quite clear. I agree that the Governor-General can use his foresight in the protection of the State. He may promulgate Ordinances to protect the State from an impending disaster but an impending disaster means an existing emergency. If I may say so with great respect, Beaumont C. J. was not quite right in his appreciation of the term 'emergency' as used in Section 72 of Schedule 9. It is something in existence which calls for immediate action. When dealing with question of the delegation of the Governor-General's function to judge ' whether an emergency existed, the learned Chief Justice said that the use of the word 'emergency' in Sub-section (3) of Section 1 was 'rather unfortunate' because it suggested two emergencies. He added that there was only one emergency viz., that which justified the promulgation of the ordinance and it was that emergency

which justified the Governor-General in leaving it to the Provincial Government to bring the ordinance into operation as part of the machinery for carrying out the ordinance.

107. I am aware of the principle that emergency legislation cannot be so carefully and skilI fully drafted as normal peace-time legislation and that Courts in construing emergency legislation should bear this in mind and avoid being too meticulous or fastidious but I would respectfully say that the construction put on Section 1 (3) by the learned Chief Justice savours more of legislation than of construction. Further it should be remembered that thef ordinance is taking away valuable rights from the subject and also curtailing the jurisdiction and powers of this Court; when an Act or ordinance does this the duty of the Court is to be vigilent and to satisfy itself that all the conditions necessary for the validity of such an ordinance or Act have been complied with. Bearing all this in mind I am unable to agree with. Beaumont C. J. that all that 13. 1 (3) does is to leave the Provincial Government to put the machinery o the Ordinance into action. It does something more; it leaves it to the Provincial Government to decide whether such an emergency exists as would justify the Ordinance being put into operation. If I may say so, with the greatest respect, in most of the cases one point is lost sight of, viz., that the emergency and the measure to meet it are not unconnected matters and that they are interdependent. The measure is something which is taken to meet the particular emergency. These two things cannot be viewed apart from each other. They are inextricably bound together. The person who decides the emergency must also devise the measure to meet it. One person must be responsible for both. It is this principle that has also been ignored in the promulgation of this Ordinance.

108. The third and the last point urged by Mr. Meyer is this: The Governor-General has not only delegated the function of deciding whether the emergency exists but he has also delegated his legislative functions to the Provincial Government. The Governor-General does not decide what, jurisiction the different Courts are to have; he has left that to the Provincial Government to decide either by itself or by some officer empowerd in this behalf by the Provincial Government. By this Ordinance it is the Provincial Government or the officer of the Provincial Government who is given power to decide how much of the criminal jurisdiction of the High Court is to be taken away. My Lord the Chief Justice and my learned brother Khundkar have dealt with this point very fully and I cannot usefully add anything to what they have said.

109. I would rest my decision that the ordinance is ultra vires on the other grounds discussed by me. As the ordinance is ultra vires we must hold that the Special Court which tried the petitioners was not properly constituted and had no jurisdiction to try them. This rule must therefore be made absolute. The convictions and sentences must be set aside. The order that I would pass would be that the petitioners be released and that Provincial Government should re-arrest them and proceed against them according to law in the ordinary Courts.

110. By the Court. - As the majority of the Court is of the opinion that the applicants have been convicted by a Court which had no jurisdiction to deal with them and as the other member of the Court is of the opinion that the tribunal under no circumstances, could have jurisdiction over them, we make the order that the conviction be set aside and that the applicants be released, but that they be re-arrested and dealt with in the ordinary Courts according to the ordinary process of law. It will be for those in charge of this case to see that these persons are re. arrested and brought before the Magistrate and dealt with; and we direct the attention of the Magistrate to the provisions relating to bail in Section 130A of the Defence of India Rules, but not in the sense that we suggest that they should have bail. Certificate is granted under Section 205, Government of India Act.


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