King-Emperor vs Benoarilal Sarma and Others

Comyns Carr K. C., J. M. Parikh and Ralph Parikh appeared for the Respondents as amici curiae, having been granted special leave to appeal

in another matter which raised the same point. Section 313, Sub-Section 3, of the Government of India Act says that the "" Governor-General

means the "" Governor-General in Council"" except in cases with respect to which the Governor-General is required by the provisions to act in his

discretion. Therefore, wherever a section does not say that, it means "" Governor-General in Council "" although it says "" Governor-General "".

Accordingly, the present ordinance, if it could be validly made at all, must be made by the Governor-General in Council and not by the Governor-

General personally. It does not purport to be made by the former. There is no room for reading ""in his discretion"" into a section if it is not there.

The proclamation under Section 102 has only one effect-to bring Section 102 into operation and enable the Indian legislature to deal with matters

in the Provincial List. Reliance is placed on the reasoning of Sen J. in the High Court. It is true that this Board decided in Bhagat Singh v. The

King-Emperor (1931) L.R. 58 IndAp 169. that you cannot go behind the statement of the Governor-General that in his opinion an emergency has

arisen, but that must always be subject to the proviso that he must appear to be using the word emergency in its proper meaning. If it appears from

the terms of his ordinance that he is not doing so, then it is legitimate to say that the did not think that there was an emergency in the true sense of

the word. While it may be quite legitimate to pass an ordinance which is conditional in its operation, on the other hand it is, according to Burah''s

case 3 App. Cas. 889. illegitimate to delegate the legislative power itself. What is complained of here, however, is not that the Governor-General

has delegated either legislative power or executive power, but that he has delegated the power to determine the very thing which is the condition

precedent to his legislating at all, namely, whether an emergency has arisen. The definition of emergency in Bhagat Singh''s case 3 App. Cas. 889.

does not purport to be exhaustive, but it does say that it connotes a state of matters calling for drastic action, and that it demands immediate action.

Emergency does not mean emergency at large. Under Section 72 of the Government of India Act the emergency with which the Governor-General

is dealing should be an existing emergency and should call for the particular kind of immediate action which he proposes to take. If the particular

kind of emergency, which in the Governor-General''s opinion justifies a particular kind of action, is in itself wholly in prospect and not present, then

although there may be present an emergency of some other kind, that would not justify, under Section 72, the ordinance being made. The existence

of the emergency requiring immediate action is, under that section, the basis of the legislative power. His powers are subject to a condition

precedent which must be fulfilled by himself alone. The powers left under ss. 5, 10 and 16 of the ordinance to the Provincial Government go

beyond the kind of limits laid down or suggested in Burah''s case 3 App. Cas. 889, and really amount to entrusting the persons named in those

sections with legislative power. At the moment the special courts are set up, there being the ordinary courts side by side with them, no man can say

before which court any particular case or class of cases will come. What is done here is that over the whole field of criminal jurisdiction the matter

is left absolutely to the untrammelled discretion of a particular official.

Nov. 6. The judgment of their Lordships was delivered by Viscount Simon L.C. This is an appeal by the Government of India from a judgment

of the Federal Court, dated January 4, 1943, dismissing an appeal from a judgment of the High Court at Calcutta, setting aside a conviction of

fifteen individuals by a Special Magistrate purporting to act under Ordinance No. II of 1942, promulgated by the Governor-General on January 2,

1942. The ground on which the conviction was set aside was that the ordinance was ultra vires. The question is largely academic, for on Ordinance

No. II being declared by the Federal Court to be ultra vires, Ordinance XIX of 1943 was promulgated to replace it. But in view of the elaborate

argument that has taken place and the way in whim the topic has been dealt with in the judgments in India, their Lordships think that the better

course is to decide the question whether Ordinance II is invalid, especially as this may be of assistance in deciding other questions which may arise

hereafter as to the validity of ordinances made, in cases of emergency, by the Governor-General under the authority of Section 317 and Section 72

of sched. IX of the Government of India Act, 1935.

Their Lordships must, however, make a preliminary observation on the way in which the issue of the validity of the ordinance has been dealt

with by the Indian courts. The appeal from the Special Magistrate who convicted the accused was brought to the High Court under its criminal

revisional jurisdiction by a petition for revision under Sections 435 and 439 of the Code of Criminal Procedure. This assumes that the court below

was a valid inferior court whose decision calls, in the view of the Appellants who were convicted and sentenced by it, for revision. But if the

Special Magistrate who tried the case was a valid court, duly authorized by the ordinance, then by the very terms of the ordinance there is no,

appeal to the High Court. Sen J., at the beginning of his judgment in the High Court, points this(sic) out very clearly. If, on the other hand, the

ordinance had no validity, the Special Magistrate was in the same position as a private person who took on himself to conduct a trial of the

Appellants and to sentence them to imprisonment without any authority at all. In this latter alternative, the remedy of release by process in the

nature of habeas corpus (s. 491 of the Criminal Procedure Code) would be the appropriate remedy. There Lordships content themselves with

pointing this out, without seeking to dispose of the litigation on this ground, as in their opinion the matter can be satisfactorily dealt with by

considering whether the objections taken to the ordinance have any validity.

The Governor-General purported to make and promulgate the ordinance under a power conferred on him by Section 72 of sched. IX to the

Government of India Act, 1935, which must, of course, be read in the light of the India and Burma (Emergency Provisions) Act, 1940

(whereunder the operation of the words "" for the space "" of not more than six months from its promulgation "" was suspended during the period

therein specified). [His Lordship read the section and continued:] It is to be observed that the section does not require the Governor-General to

state that there is an emergency, or what the emergency is, either in the text of the ordinance or at all, and assuming that he acts bona fide and;

accordance with his statutory powers, it cannot rest with the courts to challenge his view that the emergency exists. In the present instance such

questions are immaterial, for at the date of the ordinance (January 2, 1942) no one could suggest that the situation in India did not constitute an

emergency of the most anxious kind. Japan had declared war on the previous December 70: Rangoon had been bombed by the enemy on

December 23, and again on December 25: earlier ordinances had recited that an emergency had arisen which required special provision being

made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and

so forth. Their Lordships entirely agree with Rowland J.''s view that such circumstances might, if necessary, properly be considered in determining

whether an emergency had arisen; but, as that learned judge goes on to point out, and, as had already been emphasized in the High Court, the

question whether an emergency existed at the time when an ordinance is made and promulgated is a matter of which the Governor-General is the

sole judge. This proposition was laid down by the Board in Bhagat Singh v. The King-Emperor L. R. 58 I. A 169 and is plainly right. On

September 3, 1939, the date on which war was proclaimed between His Majesty and Germany, the Governor-General, acting under Section 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 Section 72 of sched. IX, had, in case of emergency, the same width of

legislative power.

Two objections, however, were raised to the validity of the ordinance in connexion with the question of "" emergency "". The ordinance recited,

that "" an emergency has arisen which makes it necessary to provide for the setting up of special criminal courts, "" and the body of the ordinance

contained the necessary framework for courts of criminal jurisdiction consisting of Special Judges, Special Magistrates, and Summary Courts, the

provisions as to their respective limits of jurisdiction and procedure, together with restrictions on appeal (which fall to be separately considered in

this judgment), but the ordinance did not itself set up any of these courts, but provided by Section 1, sn.b-s. 3, that the ordinance "" 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 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 "". In view of this last

provision, it was contended that the ordinance was invalid either because the language of the section showed that the Governor-General,

notwithstanding the preamble, did not consider that an emergency existed but was making provision in case one should arise in future, or else

because the section amounted to what was called "" delegated legislation"", by which the Governor-General without legal authority sought to pass the

decision whether an emergency existed to the Provincial Government instead of deciding it for himself.

There is, in their Lordships'' opinion, no valid ground for either of these contentions. As regards the first one, it is enough to say that an

emergency may well exist which "" makes it necessary to provide for the ""setting up of special criminal courts"" without requiring such courts to be

actually set up forthwith all over India. Any other view would appear to deny to the Governor-General the possibility, when faced with an

emergency, of making provisions which could be in-stantly applied if the danger increased and became even more critical to the part of India

where it was necessary to apply them. It would in fact (as Beaumont C. J. observed in reference to a similar objection in the Bombay High Court

in Shreekant Pandurang v. EmperorI.L.R. [1943] b. 331, 351. deny to the Governor-General, when laced with an emergency, the exercise of any

foresight in the protection of the State. He may well have Considered that, in view of the existing emergency, it was necessary to have a scheme for

special courts drawn up and all ready for application if the existing emergency were further aggravated. A very similar situation arose in this country

when, under the Emergency Powers Act, the Government devised and prepared for instant application a system of zone courts which were to be

put into force only if, owing to inasion by the enemy or the like, the ordinary courts in some part of the country were judged unable to function

satisfactorily. Sen J. in the High Court expressed the opinion that "" the provisions of this ordinance proclaim unmistakably that the Governor-

General did not think that an emergency which necessitates 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"". With all respect to the learned judge, their Lordships

are quite unable to accept this reasoning. It is perfectly possible, and, indeed, it is quite obvious, that the Governor-General regarded the situation

on January 2, 1942, as constituting an emergency-in view of what was happening it would be remarkable if he did not-and this justified and

authorized the ordinance providing in advance for special courts. It does not in the least follow that the bringing of special courts into actual

existence and operation all over India must take place at the same time.

The second objection has attracted more support, but is, in their Lordships'' opinion, equally unfounded. It is undoubtedly true that the

Governor-General, acting under Section 72 of sched. IX, must himself discharge the duty of legislation there cast on him, and cannot transfer it to

other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as

wide as the powers of the Indian legislature which, as already pointed out, in view of the proclamation under Section 102, had power to make

laws for a Province even in respect of matters which would otherwise be reserved to the Provincial legislature. Their Lordships are unable to see

that there was any valid objection, in point of legality, to the Governor-General''s ordinance taking the form that the actual setting up of a special

court under the terms of the ordinance should take place at the time and within the limits judged to be necessary by the Provincial Government

specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local

application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity. Their Lordships are in

entire agreement with the views of the Chief Justice of Bengal and of Khundkar J. on this part of the case. The latter Judge appositely quotes a

passage from the judgment of the Privy Council in the wel-known decision in Russell v. The Queen (1882) 7 App. Cas. 829. In that case the

Canadian Temperance Act, 1878, was challenged on the ground that it was ultra vires the Parliament of Canada. The Temperance Act was to be.

brought into force in any country or city, if on a vote of a majority of the electors of that country or city favouring such course, the Governor-

General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount

to a delegation of legislative power to a majority of the voters in a city or country. 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

power 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 so 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 the case of Queen v. Burah

3 App. Cas. 889. 2 SCIlately before this Board "" 7 App. Cas. 835.. The next objection to be considered is that Section 26 of the ordinance,

which is framed to exclude the revisional and appellate powers of the High Court in cases dealt with by the special courts consituted under the

ordinance, was ineffective and ultra vires as being in conflict with Section 223 of the Government of India Act, 1935, which 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 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,...... shall he the same as immediately before the commencement of Part III of this Act"". Previous to 1935 the High Court

had revisional jurisdiction over the magistrate''s courts in the relevant area. The argument advanced was that this jurisdiction could not be taken

away by an ordinance made by the Governor-General under Section 72, as the Governor-General''s ordinance was not an "" Act of the

appropriate legislature "". "" Legislature"", it was said, means only the Central legislature consisting of the two Houses and the Governor-General, or

the Provincial legislature consisting of the two Houses and the Governor, and the Governor-General when making an ordinance in cases of

emergency under Section 72 was not either of these legislatures. The argument, as Sir Harold Derbyshire pointed out in his judgment, overlooked

the privision in Section 311, Sub-Section 6. of the Act, which says:-""Any reference in this Act 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......"" There is,

thus, no substance in this objection. Assuming that the condition as to emergency is fulfilled, the Governor-General acting under Section 72 may

repeal or alter the ordinary law as to the revisional jurisdiction of the High Court, just as the Indian legislature itself might do.

There remains to be considered another objection to the validity of the ordinance which is, as their Lordships understand, the main ground on

which it has been held to be ultra vires. The objection may, perhaps, be stated in more ways than one, but the substance of it, as appears both

from the judgment of Sir Harold Derbyshire in the. High Court and of the Chief Justice in the Federal Court, is that the ordinance makes it

pesble(sic) to discriminate between one accused and another, between one class of offence and another, so that uses(sic) may be tried either in the

special courts or under e(sic) ordinary and well-established criminal procedure acording(sic) to the direction and decision of provincial thorities. It

is evident that this is an aspect of the atter(sic) which has greatly troubled the majority of the adges(sic) in India who have had this case before

them, and view of the well-established practice in India by which(sic) decisions in criminal cases are open to review by higher court, it is natural

that those who are versed applying this system should feel disturbed by the bally different arrangement contained in the ordince.

The sections of the ordinance which appear to have even(sic) the judges in India most concern are ss. 5, 10, 14 d 16. [His Lordship read the

sections and continued:]

Harold Derbyshire found that these sections were valid. He pointed out, with justice, that the ordince left it to the local Government, or to some

officer the local Government empowered by it in that behalf, direct what offences or classes of offences, and, more-ever,(sic) what cases or

classes of cases, should be tried by ,e(sic) special courts. He thought that this amounted to apealing the Code of Criminal Procedure in part, for

order(sic) the ordinance there would be no trial by jury and right of appeal and no right of revision by superior courts,(sic) including the High

Courts, such as are enacted the Code. "" In effect, "" he said, "" 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 valid provisions as far as he is

concerned. That, in my view, is repealing the Code of Criminal Propedure in part-in that instance legislation ad hoc for the man''s. case "".. He

added that he had(sic) not find authority in Section 72 to justify this result; d(sic) in his view the above-quoted sections, which he declared invalid,

purported to authorize persons other can the duly authorized legislature constituted under be Government of India Act, 1935, to repeal ad hoc

certain provisions of the Code of Criminal Procedure and of the Letters Patent of the High Court. Khundkar J. agreed with the Chief Justice on

this point, and stated his objection to the above-quoted sections of the ordinance thus:-"" 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 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 learned judge goes on to point out what he regards as the possible mischief which may flow from the

unwise or injudicious exercise of such a power"", fortifying his criticism by quotations from well-known writers on jurisprudence such as Anson and

Salmond, and he con cludes that the above-quoted sections are ultra vires on the ground that the ordinance gives to the Provincial Governments a

power to effectuate jurisdiction of special criminal courts by making orders in individual cases or groups of cases "". Sen J. as their Lordships

understand, did not differ from the Chief Justice and Khundkar J., in this view, though he rested his decision that the ordinance was ultra vires on

other grounds which their Lordships have already indicated.

In the Federal Court the Chief Justice dwelt on the value of the revisional jurisdiction, but considered that the most serious defect in the

impugned ordinance was the power it conferred to discriminate between one accused and another by directing trial in different courts He

developed his objections on this point by elaborate references to the constitutional principles involved is certain decisions of the Supreme Court of

the United strates and of the High Court of Australia, and quotes messages(sic) from the writings of Sir Courtenay Ilbert and Sir Cecil Carr to

illustrate the relation between executive and legislative powers in the British Constituon(sic). He concluded that ss. 5, 10 and 16 of the ordinance

are""open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion,

without any legislative provision or direction laying down the Policy or conditions with reference to which that power is to be exercised "". This was

the ground on which the Chief Justice and Zafrulla Khan J. based their(sic) decision that the appeal of the Crown should be dismissed.

With the greatest respect to these eminent judges, their(sic) Lordships feel bound to point out that the question whether the ordinance is intra

vires or ultra vires Kes(sic) not depend on considerations of jurisprudence or if policy. It depends simply on examining the language if(sic) the

Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the ordinance by

which he is purporting(sic) to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better, if circumstances

permit, to frame a statute in such a way that the offender may know in advance before what court he will be brought if he is charged with a given

crime ; but that is a question of policy, lot of law. There is nothing of which their Lordships are aware in the Indian constitution to render invalid

statute, whether passed by the Central legislature or under the Governor-General''s emergency powers, which does not accord with this principle.

Rowland J., at the beginning of his dissenting judgment, collects a number If striking quotations from previous judgments delivered in the Privy

Council as to the proper rule of construction. Again and again, this Board has insisted that in construing enacted words we are not concerned with

the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. The learned judges who

were in the majority in the Federal Court would presumably not contest this proposition, and their Lordships rather understand their view to be

based on the conception that there is something underlying the written constitution of India which debars the executive authority, though specially

authorized by the statute or ordinance to do so, from giving directions after the accused hat been arrested and charged with crime as to the choice

of court which is to try him. Their Lordships are unable to find that any such constitutional limitation is imposed. Indeed, Rowland J. points out that

if it were held that where two sets of courts exist side by side power cannot be delegated to pass an order directing that a case shall come before

the special court and not before the court under the Code, this would throw doubt on a long course of legislation in India where this very thing is

enacted. The learned judge cites thirteen instances, and, in addition to these, refers to the discretion conferred by the Indian Army Act and by the

Indian Air Force Act on the prescribed authority to decide in a particular case, where a criminal court and a court martial would both have

jurisdiction, before which court the accused shall be brought for trial There is not, of course, the slightest doubt that the Parliament of

Westmininster could validly enact that the choice of courts should rest with an executive authority and their Lordships are unable to discover any

valid reason why the same discretion should not be conferred in India by the law-making authority, whether that authority is the legislature or the

Governor-General, as an exercise of the discretion conferred on the authority to make laws for the peace, order, and good government of India.

Their Lordships will humbly advise His Majesty that the appeal should be allowed. The judgment of the Federal Court must be set aside and

the Ordinance II of 1942 declared not to be ultra vires.

Solicitor for Appellant: Solicitor, India Office. Solicitors for amici curiae: Lambert & White.-Reprinted from The Law Reports, India Appeals,

with the kind permission of the Incorporated Council of Law Reporting for England and Wales.

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