In Re: Karumuthu Thiagarayan Chettiar and Others

Happell, J.—These are petitions to quash proceedings instituted against the petitioners for offences alleged to have been committed in

contravention of Rules and Ordinances made under the Defence of India Act. Sir Alladi Krishnaswami Ayyar appears for the petitioners in Crl.

M.P. No. 1569 of 1946 in which the prosecution was instituted under Rule 18-B, Sub-clause 1(b) of the Cotton Cloth and Yarn (Control) Order

of 1945. The main argument has been addressed to us on this petition. Mr. V.V. Srinivasa Aiyangar appears for the petitioners in the other

petitions. They relate to prosecutions under different orders, but no separate argument has been addressed to us in respect of these petitions and it

is admitted that the same considerations will apply to all the petitions. It has seemed to us, convenient, therefore, to refer throughout to the Cotton

Cloth and Yarn (Control) Order only on the footing that what applies to this order will apply equally to the orders in question in the other petitions.

The Cotton Cloth and Yarn (Control) Order was made under Sub-rule (2) of Rule 81 of the rules made under the Defence of India Act. Section

1(4) of the Defence of India Act provides that the Act "" shall be in force during the continuance of the present war and for a period of six months

thereafter."" By an Order in Council of the 20th March, 1946--the India and Burma (Termination of Emergency) Order, 1946--the end of the

emergency--i.e., the war--was declared to be the 1st of April, 1946 ; and on the 1st day of April, 1046, the Governor-General by proclamation

revoked the proclamation made under Sub-section (1) of Section 102 of the Government of India Act on the 3rd of September, 1939. Hence the

Defence of India Act and the Rules and Ordinances made under it ceased to be in force from the 30th September, 1946. In all the petitions before

us the offences alleged were committed and the prosecutions were instituted before the 30th of September, 1946. Notwithstanding this, the case

for the petitioners is that the prosecutions cannot be continued because, after the expiration of a statute, in the absence of provision to the contrary,

no proceedings can be taken on it, and proceedings already commenced ipso facto determine.

On the 30th March, 1946, the Governor-General promulgated Ordinance No. XII of 1946. This Ordinance is entitled the "" Defence of India

(Second Amendment) Ordinance, 1946. Section 2(2) of the Ordinance commences :

Amendment of Section 1, Act XXV of 1939.--To Sub-section (4) of Section 1 of the Defence of India Act, 1939, the following shall be added,

namely:--''but its expiry under the operation of this sub-section shall not affect--''

and then substantially repeats in four Clauses (a) to (d)--the provisions of Clauses (b) to (e) of Section 6 of the General Clauses Act regarding the

effect of the repeal of an enactment. Clause (d) of Sub-section (2) of Section 2 of the Ordinance provides that the expiry of the Defence of India

Act shall not affect :

any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as

aforesaid ;

any such investigation, legal proceeding or remedy may he instituted, continued or enforced, and any such penalty, forfeiture or punishment may be

imposed as if this Act had not expired.

If Ordinance XII of 1946 is valid, it is clear that the petitioners have no case and that the proceedings against them can be lawfully continued.

Sir Alladi Krishnaswami Ayyar, however, argues that, at any rate in so far as it purports to affect prosecutions instituted under the Cotton Cloth

and Yarn (Control) Order of 1945, the Ordinance is ultra vires the Governor-General and so not valid. This argument is based on the fact that the

subjects to which the Cotton Cloth and Yarn (Control) Order applies are subjects included in the Provincial Legislative List, i.e., list 2 in Schedule

VII of the Government of India Act. Section 72 of Schedule IX of the Government of India Act confers on the Governor-General the power to

make Ordinances in case of emergency, but the section makes no distinction as regards the exercise of the power between subjects included in the

Central Legislative List and subjects included in the Provincial Legislative List. The section does, however, state that the power of making

ordinances conferred on the Governor-General is subject to the like restrictions as the power of the Indian Legislature to make Laws. Now the

Indian Legislature has only power to make Laws for a Province with respect to any of the matters enumerated in the Provincial Legislative List

under the provisions of Section 102 of the Government of India Act, and this section restricts or controls the power in two ways. First the power

can only be exercised after the Governor-General has declared by Proclamation that a grave emergency exists whereby the security of India Is

threatened whether by war or internal disturbance ; and secondly it is provided that the law shall cease to have effect on the expiration of six

months after the proclamation has ceased to operate "" except as respects things done or omitted to be done before the expiration of the said

period."" Even though the power of the Governor-General to make ordinances is neither greater nor less than, but co-extensive with, the powers of

the Indian Legislature to make laws so that the power of the Governor-General to make ordinances for a Province with respect to any matter

enumerated in the Provincial Legislative List is the same as that of the Indian Legislature, no difficulty arises as to the Form of the Proclamation of

Emergency required to be made u/s 102, Sub-section (1) of the Act. The Proclamation of Emergency of 3rd September, 1939, was promulgated

u/s 102, Sub-section (1) of the Act. Nor is there any difficulty about the provision that a Law made u/s 102 shall cease to have effect on the

expiration of a period of six months after the Proclamation has ceased to operate. The Defence of India Act and so the Cotton Cloth and Yarn

(Control) Order, made under it have ceased to have effect within the prescribed period. Sir Alladi Krishnaswami was indeed inclined to argue that

Ordinance XII of 1946 is in any case ultra vires the Governor-General because it continues orders made under the Defence of India Act beyond

the period permitted by Sub-section (4) of Section 102 of the Government of India Act. We do not agree. It cannot be disputed that a temporary

Act may contain provisions within itself for the consequences that will ensue on its expiration ; and, in our opinion, the provisions of Ordinance XII

of 1946, which are substantially the same as the statutory provisions which govern all repealed Acts, cannot be regarded as extending the Defence

of India Act and the Rules and Ordinances made under it beyond the date of their expiration any more than Section 6 of the General Clauses Act

extends a repealed Act beyond the date of its repeal. Sir Alladi Krishnaswami''s principal contention is, however, that Ordinance XII of 1946 is

ultra vires the Governor-General because Parliament has provided for the consequences of the expiration of the Defence of India Act in Section

102 of the Government of India Act itself so that no provision with respect to the expiration of the Defence of India Act can be made which cannot

be brought within the scope of the words "" except as respects things done or omitted to be done before the expiration of the said period."" It may

be conceded that the provisions which can be made in respect of the termination of orders made under the Defence of India Act and relating to

matters enumerated in the Provincial List are controlled by Sub-section (4) of Section 102 of the Government of India Act ; and that being so, the

validity of Sir Alladi''s contention will depend on the construction of the sub-section. Before, however we deal with this question it will be

convenient to refer to two arguments advanced by the learned Advocate-General.

The learned Advocate-General does not accept the construction put on Section 102(4) of the Government of India Act by Sir Alladi

Krishnaswami but he argues that in any case the prosecutions in the petitions before us can be lawfully continued because the powers of the

Governor-General to make ordinances are in fact greater than the power of the Indian Legislature to make Laws and because Ordinance XII of

1946 should be regarded as a separate ordinance which is still in force and did not expire with the Defence of India Act on 30th September, 1946.

We are unable to accept either of these contentions. With regard to the first contention in King-Emperor v. Benoari Lal Sarma (1945) 1 M.L.J. 76

: L.R. 72 IndAp 57 : 1945 F.L.J. 1 (P.C) Lord Simon said :

On September 3rd, 1939, the date on which war was proclaimed between His Majesty and Germany, the Governor-General acting u/s 102 of the

Government of India Act 1935 had proclaimed that '' a grave emergency exists whereby the security of India is threatened by war'' and thereupon

the Indian Legislature acquired power to make laws for a Province with respect to any of the matters enumerated in the ''Provincial Legislative

List'', with the result that the Governor-General, acting under paragraph 72 of the 9th Schedule, had in case of emergency the same width of

legislative power.

This is a clear statement by the Highest authority in regard to the relative powers of the Governor-General and the Indian Legislature to legislate for

provincial subjects in case of emergency, and its force is not diminished by the fact that the question of those powers was not in controversy in the

case in which the statement occurs. It may also be pointed out that the India and Burma (Emergency Provisions) Act, 1940, treats the powers of

the Indian Legislature to make laws and of the Governor-General to make ordinances as co-extensive in the absence of express provision to the

contrary. Section 1, Sub-section (3) of that Act confers on the Governor-General power to make ordinances in respect of certain subjects :

notwithstanding the provision of the said Section 72 that the power of making Ordinances thereunder is subject to the like restrictions as the

powers of the Indian Legislature to make laws.

As regards the second contention no doubt an ordinance promulgated by the Governor-General before the 1st of April, 1946, is, by virtue of the

provisions of the India and Burma (Emergency Provisions) Act, 1940, not restricted to six months but will continue to have effect for the period

provided in the Ordinance or, if no period is provided, until the emergency is declared by the Governor-General to have ceased to have effect. The

objection to the contention is, however, that Ordinance No. XII was not promulgated as an independent Ordinance which should continue to have

effect until the emergency was declared to have ceased to exist. It was promulgated as an amendment to Sub-section (1) of Section 2 of the

Defence of India Act, and, in our opinion, it was not intended that it should have an existence independent of the other part of the amended sub-

sections or the other sections of the Act which ceased to have effect on the 1st October, 1946. The intention was, substantially, to apply to the

Defence of India Act on its expiration the provisions u/s 6 of the General Clauses Act which automatically apply to an Act on repeal in the absence

of provisions to the contrary.

The vital question is, therefore, whether the provisions of Ordinance XII or at any rate those provisions which relate to legal proceedings taken

under Orders made u/s 102 of the Government of India Act, for it cannot be disputed that some of the provisions will fall within the scope of the

words ""things done or omitted to be done,"" are ultra vires the Governor-General by reason of the terms of Section 102(4) of the Government of

India Act. Sir Alladi Krishnaswami Aiyar asks why Ordinance No. XII should have been promulgated at all if criminal proceedings instituted under

an Ordinance made under the Defence of India Act with respect to subjects included in the Provincial Legislative List could be continued after the

expiration of the Government of India Act under the terms of Section 102(4) of the Government of India Act itself; and why, if it was intended that

provision should be made in respect of the expiration of a law made u/s 102(4) similar to the provisions of Section 6 of the General Clauses Act or

Section 38(1) of the English Interpretation Act, the whole of these provisions should not have been included instead of only the words ""things done

or omitted to be done."" Whether Ordinance No. XII was necessary or unnecessary cannot affect the question of the construction of Section

102(4), but it may be pointed out that the Defence of India Act and the rules made under it cover matters enumerated in the Central as well as the

Provincial Legislative List and to matters enumerated in the Central Legislative List, Section 102(4) of the Government of India Act will not apply.

As regards the second question it seems to us that elaborate provisions with respect to the effect of the expiration of a law made u/s 102 would

have been out of place. The section gives authority to the Indian Legislature to make laws in respect of Provincial subjects in certain circumstances

and the law itself is the place where provision might be expected to be made to govern the effect of its expiration. Moreover Section 6 of the

General Clauses Act and Section 38(1) of the English Interpretation Act relate to repealed Acts and not to temporary Acts which have expired by

efflux of time.

We turn, therefore, to an examination of the meaning of the words in Section 102(4) of the Government of India Act that:

A law...shall cease to have effect on the expiration of a period of six months after the proclamation has ceased to operate, except as respects

things done or omitted to be done before the expiration of the said period.

In this connection Sir Alladi Krishnaswami has referred us to the case of Shib Shankar Lal v. Soni Ram ILR (1909) All. 33. In that case the

question arose, among other things, whether an acknowledgment of liability was a thing done in pursuance of an Act of the Legislature within the

meaning of Section 6 of the General Clauses Act of 1868 and it was held that it was not. This decision was confirmed by the Privy Council in Soni

Ram v. Kanhaiya Lal (1913) 25 M.L.J. 131 : L.R. 40 IndAp 74 : ILR 35 All. 227 (P.C.). Sir Alladi Krishnaswami argues that an offence

committed in contravention of an Act is no more a thing done under or in pursuance of the Act than an acknowledgment of liability is a thing done

under the Act. The decisions in the Allahabad cases relating to the construction of an Indian Statute will not of course apply to the construction of

an English Act; but in any case the argument seems to us to assume, without justification, that provisions appearing in Section 6 of the General

Clauses Act or in Section 38 of the English Interpretation Act have been adopted in Sub-section (4) of Section 102 of the Government of India

Act. As we are dealing with an English Statute it is the English Interpretation Act of 1889 that must be looked at, and the argument is that the

words of the saving clause in Sub-section (4) of Section 102 of the Government of India Act are substantially the same as those contained in the

second part of Clause (b) of Sub-section (2) of Section 38 of the Interpretation Act which are that the repeal shall not affect "" anything duly done

or suffered under any enactment so repealed."" Now, as we have already pointed out we are concerned in these cases with an Act and orders

made under the Act which have expired and not with an Act and orders which have been repealed. A Statute which is repealed, in the absence of

provision to the contrary, becomes as if it had never existed, but in the case of a temporary Statute the restriction imposed and the duration of its

provisions after the expiration of the Statute are matters of construction. (Vide Halsbury Laws of England, 2nd Edition, Lord Hailsham, Vol.

XXXI, p. 513, Section 668). It might, therefore, be expected that, if it was the intention of Parliament to adopt in respect of an Act and orders

which had expired one only of the provisions of Section 38 of the Interpretation Act which affect the provisions of repealed Acts while excluding

the other provisions, it would have been made clear that this was its intention or that at least the precise words of the second part of Clause (b) of

Sub-section (2) of Section 38 of the Interpretation Act would have been employed. The words used in Sub-section (4) of Section 102 are,

however, very different. They are that a law made u/s 102

shall cease to have effect on the expiration of a period of six months after the proclamation has ceased to operate, except as respects things done

or omitted to be done before the expiration of the said period.

In our opinion these words should be construed in their own context and we see no reason why they should be construed with reference to Clause

(b) of Sub-section (2) of Section 38 of the Interpretation Act. Once any presumption in favour of a construction with reference to Section 38 of

the Interpretation Act is removed there seems to us no real difficulty. It would be highly unreasonable to suppose that Parliament intended, while

giving power to the Indian Legislature to make laws for Provinces in respect of Provincial subjects in the event of the security of India being

threatened by War or internal disturbance, that offences in contravention of such laws should go unpunished unless the punishments had been

inflicted before the expiration of the law or that prosecutions instituted should lapse with the expiration of the law ; and, in our opinion, a

construction of Sub-section (4) of Section 102 according to the ordinary meaning of the words used does not lead to so unreasonable a

conclusion. The ""things done or omitted to be done"" are not stated to be ""things done or omitted to be done"" ""under a law "". They are stated to be

things done or omitted to be done before the expiration of the law. As regards these things Sub-section (4) provides that the law shall continue to

have effect after the period when with respect to other things the law has expired ; and it seems to us, on a reasonable construction, that the things

done or omitted to be done before the expiration of the period of six months after which the proclamation has ceased to operate are things to

which the law applies so that the law will continue to apply after the expiration of the period to things don or omitted to be done to which it applied

before the expiration of the period. This construction is in accordance with what may be presumed to have been the intention of Parliament and

does no violence to the ordinary meaning of the words used. In this view offences committed before the expiration of the six months'' period can

be prosecuted after the expiration of the period and proceedings instituted before the expiry of the period can be lawfully prosecuted to a

conclusion. As regards prosecutions instituted under a Law or Order made u/s 102 of the Government of India Act, indeed, it can hardly be

doubted that they are things done under the Law as well as things done before the expiration of the Law. The particular prosecutions with which

we are now concerned could only have been instituted under the several orders under which they purport to have been instituted.

The learned Advocate-General argued that, even if the construction put on Sub-section (4) of Section 102 of the Government of India Act by

Sir Alladi Krishna-swami was accepted, the continuation of the prosecution was lawful by reason of the provisions of the India (Central

Government and Legislature) Act of 1946 and Ordinances 18 and 20 made under it. In the view we have taken of the petitions it is unnecessary to

consider this contention.

The petitions are dismissed.

A certificate u/s 205 of the Government of India Act is granted in respect of all the petitions.