In Re: S. Govind Swaminathan and Others

Horwill, J.—These applications u/s 491, Criminal P.C., have been filed because of the decision of the Federal Court, not yet published in

the regular reports, that Rule 26 of the Rules framed under the Defence of India Act is somewhat different in its scope from Section 2(2)(x),

Defence of India Act, under which the rule has been framed, and that Rule 26 was therefore ultra vires of the Central Government which framed

the rule. From that decision it follows that the petitioner before the Federal Court, as the petitioners here, was detained unlawfully. Since that

judgment was pronounced however the Governor-General has issued Ordinance 14 of 1943 amending Section 2 (2)(x), Defence of India Act, to

bring it into conformity with Rule 26.

Two main points have been raised on behalf of the petitioners. The first is that the Governor-General had no power to amend an Act of the

Indian Legislature, and the other is that the amendment could not have any retrospective effect. On the first point, Section 72 of schedule 9,

Government of India Act, gives the Governor-General the same legislative powers in an emergency as the Indian Legislature has. It has been

argued by Mr. Muthukrishna Iyer and by counsel for other petitioners that the latter part of that section, which makes an Ordinance of the

Governor-General liable to control or supersession by the Indian Legislature is an in-dication that it was not intended that the Governor-General

should have power to amend an Act of the Indian Legislature, thus suggesting, though Mr. Muthukrishna Iyer did not say so in so many words, that

the Governor-General was a subordinate legislative authority. We are satisfied that that is not the case. The Governor-General makes an

Ordinance upon an emergency and the Indian Legislature has then the power to modify or repeal the Ordinance in any way it thinks fit. Unless and

until it does so, the Ordinance is as effective as any enactment of the Indian Legislature. It is argued that though the Governor-General might in

general pass an Ordinance which has equal effect with an Act of the Legislature, Section 72 does not authorise him to amend an Act of the

Legislature. We can think of no reason, however, why this limitation on the powers of the Governor-General should be imposed. Section 72 which

defines his powers to make Ordinances, places no such restriction on his powers.

The argument that the Governor-General has no power to make Ordinances with retrospective effect has no more substance than the argument

that he had no power to amend. It is not denied that in general a legislative body has power to pass enactments having retrospective effect. Section

72 of schedule 9, Government of India Act, gives the Governor-General precisely the same power as the Legislature. If the Legislature can amend

an Act, the Governor-General can do so likewise. It is contended that even so the Ordinance should not be read as affecting pending proceedings.

The following passage in Varadachariar J.''s judgment in the Federal Court in AIR 1941 16 (Federal Court) has been quoted to indicate that

unless there is a specific reference to pending actions found in a new enactment, it must be presumed that such actions are not affected:

Where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring

to pending actions.

Varadachariar J. goes on to say:

It will be seen from the decision of the Privy Council in AIR 1936 49 (Privy Council) it is not necessary that the intention of the Legislature should

always be expressed in that particular form.

If the Governor-General had power to make these, Ordinances, as we have held he has, then we must decide from the wording of the

Ordinances itself whether the Governor-General has given retrospective effect to the operation of the Ordinances or not. It was pointed out by the

Privy Council in AIR 1936 49 (Privy Council) that if the language used is such as would make the enactment retrospective in respect of pending

actions also, the Court must give effect to the plain wording of the statute in the absence of a saving clause. Clause (2) of Ordinance 14 of 1943

begins by saying:

For Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939 (35 of 1939), the following clause shall be substituted, and shall be

deemed always to have been substituted.

These words clearly cover pending proceedings in the absence of a saving clause. As indicating that the Ordinance cannot have retrospective

effect, Mr. Muthukrishna Iyer asks us to consider Section 72 as it was before it was amended by the India and Burma Emergency Provisions Act

(3 and 4 George VI, Ch. 33, Section 1, Clause. 3) when an Ordinance made under it would have had the force of law as an Act only for the

period of six months, so that, Mr. Muthukrishna Iyer says, the Ordinance would have ceased to operate before it was enacted. The fallacy of this

argument lies in confusing the period during which the Ordinance remains law and period over which acts of persons are affected by the

Ordinance.

On most of the applications, arguments have been adduced on the reasonableness of the grounds on which the various persons have been

detained, but we have no material on which to judge this: and as we are interpreting Section 2 (2)(x) as it is now amended, it is not necessary for

us to do so, because persons can be detained whom the authority empowered by the rules to detain is satisfied that it is necessary to detain for the

purpose of preventing them from acting in a prejudicial manner. Mr. Thiruvenkatachari for his client contended that no emergency existed, but the

trend of his argument seemed to be that although the release of a large number of detenus may be an emergency, it was unnecessary for the

Governor-General to amend the Act so as to preclude the Court from considering whether the grounds for the detention were reasonable or not,

and that he could have amended Rule 26 so as to bring it into conformity with Section 2 (2)(x) and so given the Court an opportunity of checking

executive orders. There can, however, be no question that the course adopted by the Governor-General was legal, and it cannot also be doubted

after AIR 1931 111 (Privy Council) that the Governor-General is the sole judge whether an emergency exists.

Mr. S. Ramaswami Aiyer for the petitioner in Cri. M.P. No. 316 of 1943 contends that Rule 26 is still ultra vires, because it conflicts with

Section 15 of the Act which says:

Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as

may be consonant with the purpose of ensuring the public safety and interest and the defence of British India.

The answer to that argument seems to be that where the Government are satisfied that detention of a person is necessary, they must necessarily

be satisfied that no lesser interference with the ordinary avocations of that person than his detention is sufficient to effect the purpose for which he

was detained.

Mr. S. Ramaswami Aiyer also argued that the effect of the amendment is to render ineffective the decision of the Federal Court and is

therefore ultra vires. This is an untenable argument. As was pointed out in Premshankar Raghunathji v. Government of Bombay (1971) 8 Bom.

H.C.R.A.C. 195 quoted with approval in Collector of Thana v. Bhaskar Mahadev (1984) 8 Bom. 264 legislation by the Government would be

virtually impossible if such an argument were valid.

Mr. S. Ramaswami Iyer argues that the mendment is also ultra vires because Section 3 purports to deprive the Federal Court of its jurisdiction

to call in question an order passed under Rule 26, in that it says that no order heretofore made against any person under Rule 26, Defence of India

Rules, shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of

he powers that might, at the time the said rule was made, be lawfully conferred by a rule made or deemed to have been made u/s 2. It is not

necessary to consider this question, because Section 2 alone is sufficient to give the necessary retrospective effect to the Ordinance and also

because we are not concerned with the effect that the Ordinance might have on the powers of the Federal Court. It is not denied that Section 3

would be valid as far as proceedings in High Courts are concerned. Mr. V.T. Rangaswami on behalf of the petitioner in Cri. M.P. No. 306 of

1943 argued that the Government cannotnow rely on Rule 26, for, it has been held to be ultra vires. He contends that as the Act itself has been

amended, a fresh rule will have to be drawn up. When the Federal Court declared that Rule 26 was ultra vires because its scope was different

from the scope of Section 2 (2)(x), Rule 26 did not cease to exist and now that after the amendment of the Act it is in accord with the new Clause

(x) of Section 2 (2), it has ceased to be ultra vires.

Finally, a special plea has been put forward with regard to Mrs. Ammu Swaminathan (Cri. M.P. No. 302 of 1943). It has been said that no

order under Rule 26 was actually served on her. We find that the gentleman who swore to the affidavit which has formed the basis of this argument

had no personal knowledge of the matter for he was not present when the lady was arrested. The learned Advocate-General has since produced a

copy of the actual order under which she was detained, which shows that the detention was one in accordance with the Act. We are therefore

satisfied that none of the petitioners is being unlawfully detained. Their applications are dismissed. A certificate u/s 205 (1), Government of India

Act, will be given in each case.

Cri. M.P. No. 360 of 1943-This petition is dismissed in view of our order in Cri. M.P. Nos. 302, 303, 306, 307, 315, 316, 318 and 339 of

1943. As we have granted certificates in the other cases, a certificate will be granted in this case also.