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In Re: Jewa Nathoo and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in37Ind.Cas.48
AppellantIn Re: Jewa Nathoo and ors.
Cases ReferredRex. v. Halliday
emergency legislation continuance act (i of 1915), whether ultra vires - ordinances iii and v of 1914--gov-emor-general-in-council, power of, to pass act embodying provisions of ordinances--ordinance iii of 1914, section ii, effect of--jurisdiction of courts to question orders of internment passed under emergency legislation continuance act--indian councils act, 1861 (24. & 25 vict, c. 61), section 22, 23. - .....above arguments which have been repeated from time to time have ever been accepted as correct. the general powers of the indian legislature has been discussed in rex. v. burah (1878) 3 a. c. 889 : 5 i.a. 178. whioh is the leading case on the subject. lord selborne has laid down in that case as follows: '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, it is not for any court of justice to enquire further or to enlarge constructively those conditions and restrictions.'15. the latest case, in which somewhat similar questions were raised, is that of rex. v. halliday (1916) 1 k.b. 739 : 85 l.l.k.b. 953 : 20 c.w.n. xoi. it was contended that it was.....

Chaudhuri, J.

1. This is anapplication under Section 491, Criminal Procedure Code, on behalf of five persons, inhabitants of Surat, who state that 'they had been working as traders in South Africa for some years and had lately invested all their savings in gold and sovereigns, as they considered it the most safe and convenient form of investment during the War; that they were coming from South Africa by 'S. S. Kathiawar', which arrived in Calcutta on the 19th June 1916 when they were arrested under the orders of the Commissioner of Police, with all their belongings including 58 lbs. of gold nuggets and 119 sovereigns, without any warrant being produced or read out to them.' They further state that they have been continually in custody ever since their arrest; that they applied for*bail to the Senior Deputy Commissioner of Police (in whose hands the case had been placed by the Commissioner of Police) on three occasions* but that it was then said that they had been arrested under Section 54 of the Criminal Procedure Code and Indian Ordinances which were not specified, and that a cable had been sent to South Africa to make enquiries regarding the petitioners, and that no orders could be passed till an answer was obtained from South Africa, and that the Deputy Commissioner of Police could give them no idea as to when it was likely to be received; that failing to obtain bail they made a representation to the Secretary to the Government of Bengal and were informed that as it was an ordinary criminal case the Government would not interfere. They assert that they have committed no criminal offence. They were at first kept in the Central Police Lock-up at Lai Bazar and are now in the Alipur Central Jail, both places being within the Ordinary Original Jurisdiction of this Court. They applied to me on the 3rd July 1916 that the Commissioner of Police and the Officer in charge of the Alipur Jail should be called upon to produce them before this Court to be dealt with according to law. I thereupon made an order for their production before me. On the 5th of July they were so produced, when the learned Standing Counsel appeared and stated that the petitioners had been interned under the provisions of Ordinances Nos. III and V of 1914, which had been embodied in the Emergency Legislation Continuance Act (Act I of 1915), and submitted copies of the orders passed by +he Governor-in-Council under which they had been interned. The petitioners then applied that as they were not aware of the special Ordinances under which the Government had purported to act, they should be allowed time to consider the position. I directed that a return should be made on behalf of the Government and the case of the petitioners be stated both on affidavits.

2. I have now before me the affidavit of one Vallub Das on behalf of the petitioners, in which he has submitted that the orders for internment are ultra vires and illegal in so far as they interfere with their personal liberty, safeguarded as the same is both by the common law and the statutory provisions of the British Parliament.

3. It appears from the affidavit, filed by the Deputy Commissioner of Police, P. S. R. Anley, that, by Notification No. 113/2P., dated the 24th November 1914, the Governor of Bengal in Council delegated certain of the powers delegated to him by the Governor-General-in-Council to supervising officers, whereby inter alia such supervising officers were authorized to detain any person entering the Presidency of Bengal whether by sea or land after the 5th of September 1914, when it appeared to them that such person had entered the Presidency of Bengal with intent to prosecute some purpose prejudicial to the safety, interests or tranquillity of the State, and that by Notification No. 12148P., dated 10th December 1914, the said F. S. R. Anley was empowered by the Governor-in-Council to exercise the powers of such a supervising officer. By reason of certain information received by him, he arrested the petitioners on the 19th June 1916, in pursuance of the powers so vested in him pending the receipt of orders from the Local Government. He reported the matter to the Local Government through the Commissioner of Police on the 20th June 1916, and five different orders dated the the 26th June 1916 were received from the Lecal Government, one in respect of each of the petitioners, under which the petitioners were interned in the Alipur Central Jail. All the orders are practically in the same terms, one of which is quoted below:

4. 'Whereas by Section 3 of the Foreigners' Ordinance 1914 (III of 1914), read with Section 2 of the Ingress into India Ordinance 1914 (V of 1914), the entry of Foreigners into British India by sea or land can be regulated and restricted,

5. 'And, whereas by Government of India Home Department Notification No. 1374, dated the 12th September 1914, the powers conferred by the said Ingress into India Ordinance 1914, read with the aforementioned Foreigners' Ordinance 1914, have been delegated to the Local Government,

6. 'And, whereas the Governor-in-Council is satisfied that in order to protect the State from acts prejudicial to its interests, it is desirable to exercise the powers under the said Ordinances in respect of Kana Probhu Patel, son of Parbhoo, village Sossodhra, Police Station Jalalpur, District Surat, who entered the Presidency of Bengal by sea in the 'S. S. Kathiawar.'

7. 'Now, therefore, the Governor-in-Council is pleased to direct that the said Kana Probhu Patel shall be interned temporarily in the Alipur Central Jail, 24-Pergnn-nahs. The person interned under this order shall remain in the place appointed unless permitted by the Governor-in Council to leave.

8. (Sd.) J. G. Cumming,

9. Counsel for the petitioners contends that under Section 23 of the Indian Councils Act, 1861, (24 and 25 Vict., c. 67) no Ordinance can have any force of law for more than six months from its promulgation, and that the Governor-General has no power under that Section to extend the period. The contention that an Ordinance expires after six months is correct. He argues there from that inasmuch as Act I of 1915 extends the period, it is ultra vires. In this he overlooks that the power of the Governor-General-in-Council to pass an Act embodying the provisions of an Ordinance is in no matter controlled or taken away by that Section. It is clear that the Governor-General-in-Council has power to pass such an Act embodying the provisions of the Ordinances in question. It is not an Ordinance extended but an Act, and I hold against the above contention.

10. It is next argued that under Section 22 of the Indian Councils Act, 1861, it is not in the power of the Governor-General-in-Council to make such laws as affect the constitution and rights of the East India Company, or any part of the unwritten laws or constitution of the United Kingdom whereon may depend in any degree the allegiance of any person to the Crown, or the sovereignty of the Crown. Counsel argues that inasmuch as Section 11 of the Ordinance No. III of 1914 embodied in the present enactment seeks to oust the jurisdiction of the Courts, it offends against Section 22 of the Indian Councils Act, 1861. His argument is that Sections 29, 26 Geo. III, c. 57, known as the East India Company's Act, made residents in India amenable to the Courts and although that Section was repealed by Act XI of 1872, the repealing Act itself was ultra vires, that inasmuch as Act XI of 1872 has again been repealed, Section 29 must be considered as restored. It is correct that where an Act is repealed and the repealing enactment is repealed by another which manifests no intention that the first shall continue repealed, the common law Rule was that the repeal of the second Act revived the first. But this Rule does not apply to repealing Acts passed since 1350. The last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them; 52 and 53 Vict., c, 63, Section 11. The same principle or Rule of law applies to this country. Section 3 of the General Clauses Act, Act I of 1868, expressly provided that for the purpose of reviving either wholly or partially a Statute, Act, or Regulation repealed, it shall be necessary expressly to state such purpose. The same is the effect of Sections 6 and 7 of the General Clauses Act, X of 1897. Act XI of 1872 was repealed and re-enacted with modifications by Act XXI of 1879, which after various amendments was again repealed and re-enacted in a modified form by Act V of 1903. I do not find anything in these subsequent Acts reviving Section 29 of 26 Geo. III, c. 57. Nor does it seem to me to have been necessary to revive the Section as various Acts and Statutes had come into force making the persons mentioned in that Section amenable to Courts of Justice. How we are now concerned with the constitution and rights of the East India Company I have not been able to follow. I, therefore, hold against the said contentions. It is further argued that the present Act also offends against the allegiance of the subject and the sovereignty of the Crown which are said to be interdependent.' One branch of the argument is that the said Ordinance and Act I of 1915 have not expressly suspended the Habeas Corpus, arid no inference that it has been suspended can, therefore, be inferred, and reliance is strongly placed upon the following passages in the judgments^ of Woodroffe and Mookerjee, JJ., in Rudolph Stallmann's case (1). Woodroffe, J, says as follows (see page 182*): It must be shown that a supreme right such as that to Habeas Corpus or to directions in the nature of the writ has been expressly, if that be possible to the Legislature, taken away.' Mookerjee, J., says (see page 198*): 'The burden lies very heavily upon those, who in the words of Sir Joseph Napier in Levinger v. Reg. (1877) 3 P. C. 232 at p. 289 : 39 L.J. P. C. 49 : 23 L.T. 362 : 18 W. R. 1109. assert that a right of so much importance to the criminal, given by the common law, has been taken away by implication.' The learned Judges held in that case that the English Extradition Act expressly referred to the Habeas Corpus, but the Indian Act did not; that if the Legislature had intended to withdraw the matter from the cognizance of the Indian Courts, it would have said so, but as it had not, the Court had jurisdiction under Section 491, Criminal Procedure Code, to enquire into the validity of the warrant under which the petitioner had been kept in custody.

11. Mookerjee, J., said that it was not necessary in that case to consider whether a writ of Habeas Corpus could be issued by this Court or whether the right of the Court to issue such a writ could be taken away by the Indian Legislature. The question of the prerogative of the Crown and the allegiance of the subject has been discussed in a great many cases in our Courts. Amongst them may be mentioned In the matter of Tuckut Roy (2), in which Colville, C. J., in discussing Regulation III of 1818 and Act XXXIV of 1850 expressed himself thus (see page 357): 'It cannot now be contended that the Governor-General acting under the Statute (13 Geo. III, c. 33) had no power to legislate for the subjects of the British Government as was done by Regulation III of 1818, but it possibly was meant by the Statute to import some such qualification as was afterwards more carefully expressed in Section 43 of the Statute (3 and 4 Wm. IV, c. 85).' He thought that it certainly was rather a startling proposition that a law passed to increase the power of those who represented the Crown, and in derogation of the rights of those who had withstood that power, should be treated as affecting the prerogative, and this probably was one of those cases where confusion arose as to the meaning of a word, from a difference in its use in rhetoric and in logic. He held that by legislation of this character the prerogative is not affected. He said: 'it is not for the Court to assume a power of disregarding what is made part of the law of the land. It is not our part to consider what the Legislature ought to have done, we are only to consider the law, and if we find that it has established certain principles and made certain provisions, it is our duty to obey them.'

12. In Ameer Khan's case (3), In the matter of Tuckut Roy (2) was discussed. The discussion arose in connection with Regulation III of 1818, which was said to belong to that class of laws which authorised the infliction of penalties, the privation of liberty, even the destruction of life, with a view to the future prevention of crime, and insuring the safety and well-being of the public. Such legislation, according to Norman, J., falls within the principle salus populi suprema lex. That learned Judge held in that case that the Governor-General-in-Council had a power analogous to that which the Parliament of the United Kingdom exercised when by legislative enactment it suspended the Habeas Corpus Act. The questions now raised were elaborately discussed and it was held by him that the principles which justified the temporary suspension of the Habeas Corpus Act in England, justified the Indian Legislature in entrusting to the Governor-General-in-Council an exceptional power of placing individuals under personal restraint, when for the security of the British Dominions, etc., such a course might appear necessary to the Governor-General-in-Council. He said: The proviso in Section 22 is not that no law shall be made contrary to the Magna Charta or any other similar Statute. The unwritten constitution of England is of a flexible character. It admitted a relaxation of the rules securing private rights in times of public distress or danger, ne quid detrimenti capiat resputlica,'

13. In the Appeal Court in the same case Mr, Justice Phear, in discussing the same questions which have been raised before me, said: The real effect of these Acts is that they create and make lawful a new cause of imprisonment and constitute the Governor-General-in-Council a Court, endowed with the fullest discretion to adjudicate such a cause.'

14. The argument about allegiance, he thought, could be carried to the extent that 'if the Regulation and Acts were void and of no legal force the subject had a right by law to disclaim allegiance to the Crown of the United Kingdom.' He considered such an argument 'startling' and not fit to be entertained. The other Judge in the Appeal Court, Mr. Justice Markby, said, that he saw no ground for supposing that an Act affected the prerogative of the Crown merely because it affected the liberty of the subject. If that were so, then the Indian Legislature would have no power at all to legislate in criminal matters. He held that the allegiance of a British subject in no way whatever depended upon the existence, or non existence of such a power as was conferred on the Governor-General by the Regulation of 1818. He wholly repudiated the doctrine contended for, that the allegiance of a subject to his Sovereign could by any possibility be legally affected by the mere withdrawal from the subject of any right, privilege or immunity whatsoever. Practically the sama questions ware raised in Alter Caufman v. Government of Bombay (4), in which the decision of the Calcutta Court in Ameer Khan's case (3) was quoted with approval. The Indian Legislature both before and after the passing of the Indian Councils Act, 1861, has from time to time passed similar enactments authorizing the privation of liberty in certain circumstances, and no instance has been cited to me that such Acts have been held to be ultra vires or that any of the above arguments which have been repeated from time to time have ever been accepted as correct. The general powers of the Indian Legislature has been discussed in Rex. v. Burah (1878) 3 A. C. 889 : 5 I.A. 178. whioh is the leading case on the subject. Lord Selborne has laid down in that case as follows: '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, it is not for any Court of Justice to enquire further or to enlarge constructively those conditions and restrictions.'

15. The latest case, in which somewhat similar questions were raised, is that of Rex. v. Halliday (1916) 1 K.B. 739 : 85 L.L.K.B. 953 : 20 C.W.N. xoi. It was contended that it was the usual practice in England to pass an Act suspending the Habeas Corpus Act when circumstances required, the Suspension Act being always followed by an Indemnifying Act. General words, it was argued, ought not to be interpreted as taking away the fundamental rights of individuals as conferred by Statute or the Common Law but in view of the Defence of the Realm (Consolidation) Act, 1914, it was held in the Court of Appeal that the argument was not sound.

16. The Ordinances in question came into existence in India in circumstances of emergency. Act I of 1915 has been enacted owing to the same emergency and is of a temporary character, it being provided that it is to remain in force during the continuance of the present war and for a period of six months thereafter.

17. Section 11 of Ordinance No. III of 1914 incorporated in that Act expressly provides that No order made under Section 3 shall be called in question in any Court.'

18. It expressly ousts the jurisdiction of the Courts of Justice, that is to say, when the requirements and provisions of the Act and Ordinances are fulfilled.

19. The orders we are dealing with mention that the Governor-in-Council is satisfied that in order to protect the State from acts prejudicial to its interests, it is desirable to exercise the powers under the said Ordinances in respect of the petitioners and that they have accordingly been interned.

20. Arguments have been addressed to me, with which I am unable to agree, that as the orders do not recite the Act but only the Ordinances and do not say that' It is desirable to protect the State from the prosecution by the petitioners of some purpose prejudicial to its interests,' the orders are bad and inoperative. The Sections of the Ordinances are referred to in the orders as they are incorporated in the Act and the wording of the orders seems to me substantially to comply with the requirements of Section 2 (2) of Ordinance V of 1914. I hold the Act is not ultra vires and this Court has no power to call in question the orders which have been passed there under. It is for the Governor-in-Council to be satisfied on the materials before them. The Court cannot call for the materials or examine them. The real effect of these Acts, to adopt the language of Phear, J., is that they create and make lawful a new cause of imprisonment and constitute the Governor-in-Council a Court endowed with the fullest discretion to adjudicate such a cause.

21. The usual procedure in these applications is to issue a Rule in the first instance and not to order the production of the petitioners. I departed from this practice, as it was not mentioned in this case that their detention was under the said Ordinances and as it appeared from the affidavit filed on behalf of the petitioners that they had been detained for a considerable time, without a warrant, merely on a suspicion that they had committed some unknown offence, which seemed to me prima facie illegal and high-handed. It is asserted that even now the Government has no materials upon which they have purported to take action but I have no power to enquire into that allegation, as the orders comply with the requirements of the Act.

22. I accordingly dismiss this application.

23. [At the hearing of the appeal against this order, Counsel for the petitioners intimated to the Court that they had been released by the Commissioner of Police. The appeal, in these circumstances, was not pressed.--Ed.']

24. Babu Nitendra Krishna Butt, Attorney-at-Law, for the Petitioner,

25. Mr. J. T. Hume, Public Prosecutor, for the Commissioner of Police.

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