Prabhakar Kondaji Bhapkar v. Emperor

Beaumont, C.J:— This is an application to the Court asking that it may be declared that the applicant is illegally and improperly detained in the Central Prison at Nasik Road, and that this Court may be pleased to issue a direction in the nature of habeas corpus, and set the applicant at liberty. The applicant was detained on 7th August, 1942, under R. 26, Defence of India Rules. For the purpose of this application we must accept the contention that the Federal Court has on 22nd April last decided that R. 26, Defence of India Rules, is invalid, and in consequence of that decision the applicant presented this petition on 26th April. But on 28th April, an Ordinance was passed by the Governor-General, which was designed to overcome the difficulties created by the decision of the Federal Court. That Ordinance recites that “an emergency has arisen which makes it necessary further to amend the Defence of India Act, 1939,” and then

“in exercise of the powers conferred by Section 72 of the Government of India Act, as set out in Sch. 9, Government of India Act, 1935, the Governor-General is pleased to make and promulgate the following Ordinance.”

2. Sub-section (2) of S. 1 directs that the Ordinance shall come into force at once. Section 2 provides that

“for clause (x) of sub-section (2) of Section 2 of the Defence of India Act, 1939, the following clause shall be substituted, and shall be deemed always to have been substituted.”

3. Then the substituted clause is set out. Section 3 provides:

“For the removal of doubts it is hereby enacted that no order heretofore made against any person under R. 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 in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2 of the defence of india act, 1939.”

4. It is argued, in the first instance, that Ordinance goes beyond the powers of the Governor-General under Section 72 of Sch. 9 of the Government of India Act. But there is really no substance in that point. Under that section 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. That is the material part of the section, and the limitation of six months has been removed by the St. 3 & 4 Geo. VI, C. 33. It is said that the Governor-General cannot pass a retrospective ordinance. But as this Ordinance is to have the like force of law as an Act passed by the Indian Legislature, and it has not been disputed that the Indian Legislature can pass a retrospective Act, there seems to be no force in that contention. Nor is there any force in the contention that the Governor-General cannot amend an existing Act of the Indian Legislature. The same reasoning applies to that. The Indian Legislature can amend an Act, and, therefore, the Governor-General can under S. 72. This Court very recently upheld a retrospective Ordinance made by the Governor-General in 45 Bom. L.R 3231.. The Ordinance is open, I think, to certain verbal criticisms. It says: “the following clause shall be substituted, and shall be deemed always to have been substituted.” Obviously, if it had always been substituted, then there would be nothing for which it could have been substituted. But the words clearly mean that the new clause is substituted, and the old clause from the date of its inception is to be read in the form of the substituted clause. I do not think that any other meaning can be attached to the words “shall be deemed always to have been substituted.” So one has to read clause (x) of sub-section (2) of Section 2 of the Defence of India Act, as having from its inception been in the form of the substituted clause. Reading it in that form, the difficulties which the Federal Court pointed out, that R. 26 did not come within that paragraph as it originally existed, were overcome. The amendments seem to cover all the grounds relied upon by the Federal Court.

5. We also have S. 3, which says that an order made against any person under R. 26, Defence of India Rules, that is in this case the order of 7th August, 1942, shall not be called in question on the ground merely that the rule purported to confer powers in excess of the powers that might at the time the rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2 of the Defence of India Act. Mr. Joshi contends that provision cannot apply to proceedings pending at the time when the Ordinance was passed. But the words are “called in question,” and it is obvious that the order of detention made against the applicant is being called in question to-day, and will continue to be called in question until this application is disposed of one my or the other. I do not see any reason whatever for saying that S. 3 of the Ordinance does not apply to pending proceedings.

6. It is to be noticed that the words of S. 3 are controlled by the adverb “merely.” It is obvious that a rule which went beyond the legislative powers of the Indian Legislature could be called in question, and no Ordinance could provide to the contrary, because that would indirectly confer upon the Governor General powers which he does not possess. But we are forbidden to allow the order to be called in question merely because R. 26 goes beyond the powers conferred by the defence of india act when the rule was framed. That is exactly what the applicant is asking us to do. There is no suggestion that the new rule goes beyond the legislative powers of the Indian Legislature or Governor-General exercising those powers under S. 72.

7. I have no doubt, therefore, that the Ordinance does preclude us from making the order which the applicant asks us to make. I understand that other High Courts in India have arrived at the same conclusion. We have not got their reasons at the moment before us, and, therefore, we cannot discuss the cases. The application is dismissed. Certificate under Section 205 of the Government of India Act, granted.

8. Chagla, J.:— It has been argued by Mr. Joshi that the Governor-General has not the power to promulgate an Ordinance amending an Act of the Indian Legislature, and further that the Governor-General cannot promulgate an Ordinance which has a retrospective effect. Now, to my mind Section 72 of the Government of India Act, 1919, which finds a place in sch. 9, Government of India Act, 1935, is a complete answer to both the arguments of Mr. Joshi, because Section 72 of the Act of 1919 gives the Governor-General legislative powers which are co-extensive with those of the Indian Legislature subject to two limitations which are mentioned in that section; and these two limitations are, first, that the Governor-General can only exercise his legislative powers in cases of emergency of which he is the sole judge, and, secondly, that the Ordinance can be effective only for a period of six months. The second limitation, as pointed out by the learned Chief Justice, has recently been removed by an Act of Parliament. There is no doubt that the Indian Legislature has the power to amend Acts passed by itself, nor can there be any doubt that the Indian Legislature can pass retrospective legislation. If the Indian Legislature has those powers, I do not think it is open to argument that the Governor-General has not similar powers under Section 72 of the Government of India Act, 1919.

9. The next point urged by Mr. Joshi is that assuming that the Governor-General could have promulgated an Ordinance of a retrospective character, in fact this Ordinance is not retrospective, and pending proceedings are saved and they are not affected or touched by the Ordinance. Now it is quite true that if an Act of the Indian Legislature or an Ordinance promulgated by the Governor-General is capable of more than one meaning, the Court would always lean against giving retrospective effect to any piece of legislation. But the whole question turns on this: what are the express words of the Ordinance itself?

10. If the Ordinance by express words chooses to affect pending proceedings, the Courts of law must give effect to these clear terms of the Ordinance; and, in my opinion, sub-cl. (3) of the Ordinance directs Courts of law not to permit orders made heretofore under R. 26, Defence of India Rules, to be called in question. What Mr. Joshi tries to do is exactly what sub-cl. (3) of the Ordinance prohibits him from doing. I therefore agree with the learned Chief Justice that the application should be dismissed.

11. Weston, J.:— I agree with the judgment of the learned Chief Justice and have nothing to add.

12. Application dismissed.