Ray, C.J.
1. The four cases, mentioned above, arising out of as many petitions, were some of the pending cases in respect of which the jurisdiction of the Patna High Court ceased from the 26th July, under Orissa High Court Constitution Order. They have since been transferred to this Court, and heard analogously, as the points for decision are common to all and will be governed by this order.
2. Criminal Misc. 2/48 has been filed by one Saradhakar Naik of Bamra State, seeking interference of this Court, in the matter of illegal arrest and detention of one Jaydev Thakur of Bamra State and to order him to be set at liberty.
3. Similarly, Cr Misc. nOS. 3, 4 and 5 of 1948 arise out of petitions filed, respectively, by Jayadev Naik of Bamra, Rual Naik and Pravakar Das of Kalahandi, in relation to the arrests and detentions of Batnakar Patra of Bamra, Nilakanth Patnaik and Lingaraj Daa of Kalahandi. In all the petitions, the legality of arrests and detentions of the prisoners has been challenged on identical grounds, viz., that the States concerned were sovereign Statea under the suzerainty of British Government, as their territories were never ceded to nor included within the dominion of His Majesty, the King of England, that the British suzerainty lapsed on 16th August 1947, that by an Instrument of Accession, dated 16th August 1947, the Statea acceded to the Dominion of India on terms, inter alia, that the Dominion Legislature might make laws, for the acceding States, in respect only of (i) defence, (ii) external affairs, (iii) communication, and (iv) other ancillary matters, as set out in the Schedule of 'the Instrument' executed in that behalf; that except for the accession and subject to the terms thereof, the States retained their (internal) sovereignty and territorial integrity; that the subsequent agreement of 15th December 1947, was 'not binding being inchoate and incomplete on account of omission of a vital term relating to consideration not having been settled nor incorporated in it (this contention was not pressed at the hearing); that inapite of that agreement, neither the sovereignty, nor the territorial integrity of the States were at all affected; ibat in any view, the Rulers of the Statea had no powers to cede (not pressed at hearing) nor in fact did they cede the legislative power to the Indian Dominion, and that, under the circumstances, the notification of the Orisaa Govern. meat extending the Orissa Maintenance of Public Order Act, 1948, to the said States was ultra virea and, the arrest and detention of the prisoners were illegal, and without jurisdiction.
4. On notice of the aforesaid petitions being given to the Orissa Government, the latter got an affidavit filed, impugning inter aha, the correctness of the allegations that they had been detained under the Orissa Maintenance of Public Order Act, it was, however, disclosed therein that the petitioners were being prosecuted some under Section 6 and some under Section 11 of the Act, for having committed particular offences under the sections, and that the petitions under Section 491, Criminal P. C. did not lie. Thereupon, at the request of the petitioners' counsel, the petitions were allowed to be amended by insertions of prayers for quashing the prosecutions on the self-same grounds.
5. They have ultimately been beard by this Court, as petitions for quashing the proceedings of pending prosecutions under Section 6 or 11, Orissa Maintenance of Public Order Act. Mr. P.R. Das, the petitioners' counsel, challenges the validity of the prosecution on slightly different grounds that will appear from the following synopsis of his arguments :
6. The States of Bamra and Kalahandi were soverign States and the territories belonged to the respective Rulers. Ref: Aitohinson's Treaties and Engagements, Edn. 6, vol. I, pp. 368 and 369. Stress is laid upon the words 'your territories' in the 'Sananda' referred to.
7. Reference is also made, in this connection to the Orissa District Gazetteers pp. 120 and 196 relating respectivly, to Bamra and Kalahandi; be also referred to the renewed 'Sanands' of the year 1905, reproduced at pp. 412 and 413 of Aitchinson's Treaties and Engagements, in which the same words 'your territories' occur.
8. In tbis connection reliance has also been placed on the Instrument of Accession, paras. 1 and 8, and the White Paper, paras, 8, 21, 24, 25, 27 and 54 referring to the said and similar States as sovereign States.
9. II. As they fell outside the British Dominion, and weilded internal sovereignty neither the British Indian laws nor those enacted by British Parliament, extended to them (territories of Indian States)--References :
(a) Bulter Committee's Report of the year 1927, p. 10, para. 11, stating that one feature, common to all the Indian States, is that they are not governed by the British Indian law p. 14 paraa, 19 to 21; and that by virtue of the paramountcy of the British Government, intervention in the Rulers' administration was in the interest of States, and people, ibid, p. 22, para. 37.
(b) Lee-Warner'a book on Native States of India, p. 401 passages:
The Imperial Courts of Appeal giva no countenance to the theory that no 'sovereignty' is left to the Native States. In the case of Muhammad Yusuf-ud din v. Qveen-Ewprers, 24 I. A. 137 at p. 145 : (25 Cal 20 P. C. ). the Lord Chancellor on behalf of the privy Counoil (sic) out that the sovereignty derived from the Nizam on a particular line of railway did not justify the arrest com plained of. The authority, therefore, to execute any criminal process must be derived in some way or another from the sovereign of that territory.' He continued, 'as the stream can rise no higher than its source. the Notification of the Government of India can only give authority to the extent to which the sovereign of the territory, the Nizam, has permitted the British Government to make that Notification.' And most significant wag the Report of the Privy Council in 1902 in the Matabeleland case. 'The situation is on a very familiar to Indian lawyers and administrators. For in India Company during its rule, and afterwards the Crown, has acquired large poweis of administration...And yet, unless there has been cession of territory, the least independent of such states is for some important purposes a foreign State, its subjects are not British subjects, the laws passed by the Indian Legislature do not affect them, and it is subject to such rules as have been duly made in accordance with the jurisdiction acquired over it.'(c) Judicial decisions : Hemchand Devchand v. Azim Sakarlal, (1906) A. C. 212 at pp. 233, 236; Statham v. Statham, 1912 P 92 : (81 L. J. P. 3 ) ; Duff Development Co., Ltd. v. Govt. of Kelanton, 1924 A. C. 797 : (93 L. J. Ch. 343); The Empress v. Keshub, S Cal. 987 : (11 C L. R. 241 F. B.) and Bichitranund Dass v. Bhuybut Perai, 16 Cal. 667.
10. III. Modern events have not appreciably affected the internal sovereignty nor the territorial integrity of the Rulers and the States :
(i) According to Section 7, Indian Independence Act 1947, the suzerainty of His Majesty over the States lapsed, but was not acquired by the Indian Dominion, and as a result, the Rulers regained full sovereignty internal and external.
(ii) The nest event of accession to the Dominion, by Instrument of Accession dated 16th August 1947, with signification of assent of Governor General of India, however, gave the Dominion Government jurisdiction of external sovereignty with powers to the Dominion Legislature to make laws on subjects mentioned in the schedule of the Instrument namely, defence, external affairs, communication and ancillary matters. Whatever may be the legal efficacy of accession, either to limit, or at the most to extinguish their external sovereignty it did not purport to touch even the fringe of their internal sovereignty and territorial intergrity.
(iii) Accession was followed by 'supplementary instrument' dated 14th December 1947. The latter and the former (instruments) are but component parts of one whole and when conjointly read and interpreted, the net result that evolves is by far the less than cession of territory and surrender of legislative powers. In short, the territories and the power to make laws for them remained vested in the Rulers, the aforesaid two instruments notwithstanding.
11. IV. Limitations of the Dominion Legislature: The Indian Independence Act, 1947, Section 1, 1, 6 and 8, limits the law-making power of the Legislature to territorially, the submission being that the grant of legislative powers contained in the Act was limited to the territories of the Indian Dominion and not beyond. The words 'full powers' in Section 6 will not extend the powers beyond the limits of the grant. It implies full powers within the limit In support of this contention, reliance is placed upon Bejoy Singh v. Surendra Narayan, A.I.R. (15) 1928 P. C. 234 : 56 Cal. 1.
12. Like wise 'extra territorial operation' of the laws made by the Dominion Legislature will not extend them to foreign territories, such as those of Indian States, except so tar as the personal jurisdiction over the subjects of the Indian Dominion resident in the States may take them. Vide : Maclecd v. Attorney-General for New South Wales, 1891 A, 0. 455 at p. 957 : (60 L. J P. C 55).
13. This argument as to extraterritoriality of Dominion legislation is sought to be illustrated by reference to Lee Warner's Book on Native States of India at pp. 354,355.
14. V The impugned 'Extra-Provincial Jurisdiction Act' like British Foreign Jurisdiction Act in its operation is limited to personal (as distinct from territorial) jurisdiction over those who owe allegiance to the sovereignty of the Indian Dominion and to its Legislature which latter (sovereignty of Legislature) cannot be extended over any foreign territory except so far as they are ceded and subject always to the terms of cession.--Reliance is placed upon Hall X, International Law, Edn. 8, p. 27; Oppenheim Edn. 6, 165 to 168 (foot-note).
15. VI. This leads to construction of the agreement of 15/30th December 1947 which (according to him) is a supplement to the Instrument of Accession and shall be read and interpreted along with it. Such interpretation neither supports cession of territory nor of legislative power. They only result in cession of certain powers of administration abort of above.
16. VII. In this view of this matter extension of Orissa Maintenance of Public Order Act by the Government of Orissa, derivng us authority from Indian Dominion under the Extra-Provincial Jurisdiction Act, is ultra vires and the proceedings set on foot for prosecution of the petitioners are void and hence liable to be quashed and the petitioners are entitled to be set at liberty.
17. If anything is undisputed, amongst the manifold contentions at the Bar from the side of the petitioners, it is this, that if on fair construction of the agreements, made on the l5/30th day of December 1947, between the Governor. General of India and the Rulers of the States, in question, it is found that either 'cession of territory' or cession of such rights and attributes of sovereignty as include 'the power of legislation,' has taken place, the petitioners have no case. iN my judgment this concession has been very candidly and rightly made. In doing so, the learned counsel has withdrawn all objections directed against the validity of the agreement such as absence of consideration and absence of power of cesaion of the rulers concerned. In this connection, it has to be noted that it is always open to two sovereign States to enter into any arrangement amounting to either cession or accession of their territories or sovereignties, both external and internal. It is not disputed that the Instrument of Accession executed by the rulers and accepted by the Governor-General of India amounts to surrender of external so-vereignty of State by virtue of which certain federal authorities specified in that behalf, in the instrument, have been assigned functional jurisdiction, legislative, executive, administrative and the like whichever is necessary to give effect to the real objective of the accession. The instrument in para. 8 leaves unaffected the continuance of the rulers' sovereignty in and over the States and save as provided by or under the instrument, the exercise of any power, authority and rights enjoyed by the rulers at the time of its execution. It also, according to the text of the same paragraph, retains the validity of any law then in force in the State.
18. While conceding that his entire case stands or falls on the construction of the agreements of the 15/30th December (hereinafter mentioned in this order as 'the agreement'), he urges that it shall be considered as a supplement to the Instrument of Accession (hereinafter referred to as 'the instrument') and both the agreement and the instrument shall be read and construed as component parts of one whole. Of course, Mr. Das has not devoted much attention to this part of his argument in order to point out bow the advocated method of construction would enure to his benefit. One thing, however, be wanted to impress in this connection, namely, that cession and accession are of widely different import, and one is inconsistent with another. If the agreement is taken as a supplement to the instrument, para. 8 of the latter, al. ready referred to, would be taken as the key to the construction of the agreement and, if so construed, come residue of sovereignty would still continue in the ruler, and such limited and narrow a construction would be put upon the words, such as, 'full and exclusive power in relation to governance of administration,' so as to bring them into conformity with the import of the aforesaid paragraph. This rule o construction, as advocated by Mr. Das may or may not be correct. The terms contained in para. 6 were embodied in the instrument, in consideration of what had been acceded at the time. The consideration laid down there may be completely out of place, if it is agreed between two sovereign States that the continuance of sovereignty in the ruler should henceforth cease. There may be some difficulty in the way of the prosecution, in view of the provision of the Government of India Act, 1935 relating to accession of Indian States. I shall not, however, devote more attention to this aspect as, in my view the agreement is not a supplement to the instrument. On reading Section 6, Government of India Act, 1935 (hereinafter referred to as 'the Act') the impression is deep in me that in any arrangement amounting to accession, discontinuance of sovereignty in the ruler of the acceding States and of the institution of the State, as such, under him are out of place. In the case of such arrangement, the ruler undertakes to allow the dominion functionarises to exercise their executive authority in giving effect to the lawa issued by the Dominion Government in that behalf. There is no trace of such a conception in 'the agreement.' Mr. Das in his able argument could not point out to us what, if any, executive power is reserved or retained by the ruler in order to carry out his functions, if any, except that be wanted to contend that the power of legislation was still in him, I shall come to this later. Besides, there are other objections, as valid as they could be against treating 'the agreement' as a supplement to the instrument.' The instrument is executed by the ruler on which the Governor-General endorses big acceptance. The instrument, until accepted, amounts to an offer of accession in pursuance of the provisions of the Act. It becomes effective in the Dominion only after it is accepted by the Governor General. The respective forms of offer and acceptance are:
(i) I hereby declare that I execute this instrument on behalf of this State and that any reference in this instrument to me or to the ruler of the State is to be construed as including a reference to my heirs and successors. Given in my hand this day
Sd.
(ii) I do hereby accept this instrument of Accession
dated ofSd. Governor-General of India ;
While the agreement, under consideration, is bilateral in the sense that it is executed by or on behalf of both the Governor-General and the ruler, 'the agreement' opens with
'agreement made this 15/30th December 1947 between the Governor-General of India and so and so, the ruler of....'
It is clear, therefore, that both in form and substance the two ace as distinct, form each other, as they can be. Besides, from the form adopted for the agreement, it is clear that the parties did not intend it to be acted upon as a supplementary instrument of association. Had that been the intendment, nothing should have prevented them from adopting the form of and expressing it as an 'instrument,' particularly because, much wider powers in relation to internal territorial sovereignty can as well be acceded to by the rulers to the Dominion Government. Prima facie, therefore, the intention of the parties was not to allow the acceding States to continue as such. I shall not be understood, however, to say that the above inference as to the intention of the parties shall outweigh the import of the express forms of the agreement. In construing the agreement in order to ascertain what has been agreed upon, full play shall be allowed to the plain grammatical meaning of the language subject to such technical meaning as have gathered round technical terms used therein.
19. It is, however, to be remembered in dealing with the matter of construction of documents like the agreement, that it represents a transaction between two sovereign States and they are to be considered on the footing of their being acts of State. Neither the validity nor the legality should be made subject of consideration, by Municipal law, in Municipal Courts. Of course if they create any right or liability they can always be subject of treatment before a Municipal Court.
20. I shall now address myself to the construction of the agreement, to determine whether it amounts to cession of territory or at any rate, cession of legislative power. As the document contains certain expressions which must be taken to have acquired technical meaning, I shall have to address a few words as to the juristic conception behind a 'State1 more particularly 'sovereign State.' In this I have the authority of Salmond on Jurisprudence. Conception of State begins with conception of union of individuals known as society with a special end is view and functioning and implying a permanent and definite organisation--a determinate and eye matic form, structure and operation. Union of individuals first begins is its natural state when there is no system, no organisation, no form of fixed and determinate nature, but there is always a. conception of common bondage that binds them all in order to achieve the common end of either repelling an external enemy, or achieving domestic good and punishing evil-doers of chesociety. The next stage is its transition from natural to political society which implies some sort of permanent organisation set up in order to ensure their combined operations in par suit of their common end, in a systematic and definite manner. Such an organisation of the society may be a creature of agreement or custom or forcible imposition or otherwise. Then it becomes either a State or body politic. The most essential characteristic of this organisation is the coming into existence of an 'organ', fundamentally necessary for the par. pose of these functions, which constitute 'political Government.' This 'organ' taken various forms and needs various conditions. Untill the middle ages, the usual form of such 'an organ' was either a monarch or a sovereign or a ruler' in whom vested the right to exercise the functions which constitute 'political Government-, ' Historically the most important operations of Government' have been two, namely, war and the administration of justice, and the end of political society has been defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It is easy to show, by a long succession of authorities, that these two have always been recognised as the most important duties of the Government' Thus, we can hardly imagine a State that abandons the administration of justice. The secondary functions of the State may be divided into two classes. The first consists of those which serve to secure the efficient fulfilment of the primary function or functions and the chief of these are two in number, namely, legislation and taxation. Legislation is formulation of the principles in accordance with which the State intends to fulfil its function of administering justice. Taxation is the instrument by which the State obtains that revenue which is the essential condition of all its activities. Thus while still maintaining order and justice between individuals, and while still in most cases organising itself for defensive and, it may be, offensive wars, the State has come to organise constructively for the well-being of its members. We have moved away from the 19th century idea of the police state, negative and repressive, to a new conception of the social-service state It is the carrying out of these functions of the State by, 'the organ' appointei for the purpose, that is known as 'governance' of a territory as a State. The Government of a territory necessarily implies political or civil power without which no Government can acquire or possess the ability of effectively exercising any functions in any department of governmental action. The civil power, as distinguished from the political power, has three components distinctly known as legis-lative, judicial and executive. Accordingly, the Government is divisible into three great departments, namely, legislature, judicature and the executive. The executive is simply a residue of the Government after deducting the legislature and the judicature. It is this residue which, under the constitution of the United Kingdom, is known as a 'prepogatice', a part of which still belongs to the King and a part is occupied by sovereignty of Parliament. This civil power is both sovereign and subordinate. Sovereign civil power is that which is absolute and an. controlled within its own sphere. Subordinate power, on the other hand, is that which, even in its own sphere of operation, is in some degree subject to external control, that is, there exists some other constitutional power which is superior to it and which can prevent, restrict or direct its exercise or annul its operation.
21. Legislation is used in a wide sense to include all methods of law-making. To legislate is to make new law in any fashion. Any act done with the effect of adding to or altering the law is, in this wider sense, an act of legislative authority. aS So used, legislation includes all the sources of law and not merely one of them.
22. With this background of the fundamental conception of State Government and legislation, let us examine what the agreement purports to convey. The agreement begins with a preamble which must be prayed in aid whenever the text or the operative part of the document presents any difficulty of construction. According to the preamble, the object of cession, as incorporated in the agreement, is to integrate the State administration with that of the Province of Orissa as far as possible, which means that the organ that carries the governmental functions of the Province of Orissa would carry the same or similar functions in the State. Article 1 of the agreement is the vital part. According to this article the Ruler cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of State and agree to transfer the administration of the State to it on the 1st day of January 1948. The Dominion Government is empowered, in order to exercise the powers, authority and jurisdiction to adopt such measures and employ such agencies as it may think fit. In short, full powers of Government and administration to that end are yielded up by the Ruler to the Dominion Government. Without anything more, it will include the power of legislation which may be by making of laws by a legislative body or by any other means. Coming to the rest of the document, it does not provide for either expressly or impliedly, any reservation of any sort of function or power to the Ruler in relation to the Government of the territory. I have shown how legislative power, like judicial and executive powers, is inseparable from the act of governance the object of which is to maintain peace and orderly relation and effectuate social service within the bounds of a territory. As against the unlimited and unqualified surrender of the governmental powers of the Ruler in favour of the Dominion Government some sort of reservation is necessary in order to hold that the Ruler still retains such of the attributes of sovereignty as can entitle him to exercise either legislative or judicial or executive functions of any character whatsover. In the field of constitutional law absence of such reservation attracts great significance. Its significance is all the greater in a case, as in the instant case, where reservations of private rights and properties as means of maintenance as well as of personal honours, titles and privileges of the Ruler and his relations, specified in that behalf, have been freely and expressly made. The proposition, as advanced by Mr. Das, that where the words of grant are clear, unequivocal and express nothing beyond the corpus of the grant is inferable from mere absence of any reservation, by way of limitation of the grant, is perfectly sound, but it is equally sound that the corpus of the grant so far as it has been clearly and unequivocally expressed, should not be abridged or curtailed only inferentially without any re-servation in that behalf. In the case of Sammut v. Strickland, 1938 A C. 678 at p. 704 et. seq : (107 L. J p. 0. 105) per Lord Maugham L. C., the following propositions were laid down as well established in constitutional law :
'The true proposition is that, as a general rule, such a grant (of legislative institution) without the reservation of a power of concurrent legislation precludes the exercise of the prerogative while the legislative institutions continu to exist. Nor is it in doubt that a power of revoking the grant must be reserved or it will not exist.'
Applying these principlea to the present case it can be safely laid down, in the absence of power of revocation and of reservation of any power of concurrent authority, either to legislate or to exercise any other function appurtenant to the sovereignty of the Ruler, that the latter has completely divested himself of all powers of governing the country which must include his power of legislation that he certainly bad on the eve of the agreement It is further clear from the principle, authoritatively laid down as above that so long as the Dominion Government, to whom the powere necessary to govern, essentially involving the power of administration and legislation are ceded, exists, the Ruler shall bave no power of legislation. The above proposition of Lord Maugham L. C. in its application to the grant of His Majesty in that case was subjected to the qualification that in case the institution entrusted with the power of legislation be lawfully revoked, the King's prerogative to legislate may revive, but not till than. In the agreement, the right of succession to the Gadi has been expressly reserved. If this reservation has any meaning, it is this, that in case the Dummion Government ceasea to exist, for some reason or other, the Ruler may, if not otherwise prevented, regain the powers This, however, holds good only if the Ruler, as such, can claim any prerogative like that of His Majesty, the King of Eugland.
23. It has been rightly conceded that the power of legislation must be taken to have been granted within the terms of the agreement, if the agreement effectuates not only cession of powera of Government but also of the territory which will be the subject of my nest consideration. But I am quite clear, that independently of grant of territories, grant of legislative, judicial and executive powers, the necessary ingredients of the power to govern a State, has been made by the agreement. It follows, therefore, that the Dominion Government has acquired the power of legislation over the States of Bamra and Kalahandi.
24. Besides the legal and constitutional standpoint, let us approach the question from a practical standpoint. In course of argument, I asked Mr. P.K. Das to tell me with whom, after the agreement, did the power of legislation lie? His reply was that it lay with the Ruler and he wanted me to accept that the Ruler could be induced to make such laws as the Dominion Government or, the agency employed by it would require for the purpose of governing the country. Bearing in mind that there is no supreme power which can control both the Dommion Government and the Ruler in exercise of their respective functious of administration and legislation, as the case may be, it would be absurd to think that such an arrangement would be thought of as one to carry out the object in view, namely, integration of the State administration with that of the Province of Orissa. Tbat would amount to placing the Ruler in a position from wbere be can bring the entire administration to a standstill. It seems very unlikely that it should have been intended, by the parties to the agreement, to institute a complex system of diarchy, by separating the powers of legislation from the administrative machinery, and confiding the two functions to two agencies completely independent of such other and without anything common to bind them together, as to bring about harmony and co-ordination, in their respective activities, from which could evolve a Government ensuring peace, order and good government to the society. It is needless to say that such an administrative agency would be left in enjoyment of but truncated and mutilated powers as the only means to provide for adequacy of administration. In such circumstances, it would be difficult, nay, impossible to hold that there was not parting of the power of legislation in favour of the Dominion Government by 'the agreement.'
25. If anything is certain as to the construction of the 'agreement,' it is this that the administration of the State has been irrevocably transferred. What does 'administration' mean and include, is obviously the problem for solution. Holland in his Jurisprudence reproduces the various definitions of 'administration' viz., (i) 'exercise of political powera within the limits of the constitution,' (ii) 'the total concrete and manifoldly changing activity of the State in particular cases' and (iii) 'the functions or the activity of the sovereign power.' With regard to the topics which included under the very wide conception of 'administration' Holland says :
'It may fairly be said to include the making and promulgation of laws; the action of the Government in guiding the State in its foreign relations, the administration of justice, the management of the property and business transactions of the State; and the working in detail, by means of subordinates entrusted with a certain amount of disoretion, of the complex machinery by which the State provides at once for its own existence and for the general welfare.'
26. In view of this pre-eminently correct and precise import of 'administration' which is transferred to the Dominion Government, there is no room for the aaaertion that 'power of legislation' has not been transferred.
27. The next question that has been very much mooted at the Bar is whether the territories of the concerned States have at all been ceded. A little while after, I shall be able to establish conclusively that cession of territory is not essential to complete cession of jurisdiction of that (territory) must be taken to have been ceded. I lay down this simple proposition that if cession of territory be essential for extrcise of the power, authority and jurisdiction yielded up by the agreement to hold that territory has not been ceded would be repugnant to the grant Mr. P.R. Das relied upon Bejoy Singh v. Surendra Nurayan, 66 Cal. l : (A. I. R. (15) 1928 P. C. 234) and urged that without express grant of territory cession of all powers of governance and administration would not tantamount to cession of territory; But a different rule of construction should apply to treaties or agreements, between two sovereign States, having for their object cession of jurisdiction for the purpose of the governance of territory. The agreement is an act of State and cannot be scrutinised in the light of the principles of Municipal laws. I would quote a passage from Vaughan William L. J. in the case of Salaman v. Secretary of State for India, (1906) 1 K. B. 613 at p. 625 : (76 L. J. K. E. 418):
'The transactions of independent States between each other are governed by other laws than those which municipal Courts administer.'
The agreement was not reached in the exercise of recognition of legal right or under colour of legal title. If I am asktd to consider whether cession of territory' is intended and has taken place by virtue of the agreement, I shall answer the question in the affirmative. My reasons are as follows and are based upon high authorities. L. Oppenheim in his treatise of International Law at p. 492 Bays :
'No unanimity exists among writers on the Law of Nations, with regard to the modes of acquiring territory, on the part of ,the member of ths family of Nations. The topic owes ita controversial character to the fact that the conception of State territory has undergone a great change since the appearance of the science of the Law of Nations. When Grottus created that science, State territory used to ba still, as in the Middle Ages, more or less identified with the private property of the monarch of the State, Grotius and his followers applied, therefore, the rulea of Koman Law concerning the acquisition of private property to the acquisition of territory by States. Now a-daye, however, the acquihition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory.'
While the learnad author at p. 499, Article 213, says:
'Cession of State (erritory is the transfer of sovereignty over the State territory by the owner-State to another State There is no doubt, whatever, that such cession is possible according to (he Law of Nations, and history presents innumerable examples of such transfer of sovereignty. The Constitutional Law of the different States may or may not lay down special rules for the transfer of acquisition of territory. Such rules can have no direct influence upon the rulea of Law of Nations concerning cession, since Municipal Law can neither abolish existing nor create new rules of international law.'
Article 214 :
'Since cession is a bilateral transaction, it has two subjects-namely, the ceding and the acquiring State, Both subjects must be States, and only those cessions in which both subjects concern the Law of Nations.'
Article 215 :
'The object of cession is sovereignty over such territory as has hitherto already belonged to another State.'
Article 217 :
'The treaty of cession must be followed by actual tradition of the territory to the new owner-State, unless such territory is already occupied by the new owner, as in the case where the cession is the outcome of war and the ceded territory has been, during such war, in the military occupation of the State to which it is now ceded, but the validity of the cession does not defend upon tradition, the cession being completed by ratification of the treat; of cession,
Article 219 :
'As the object of cession is sovereignty over the territory, all such individuals domiciled thtreon as are subjects of the ceding State become ivso facto by the cission subjects of the acquiring State.'
28. Salmond on Jurisprudence, Edn. 10, p. 131 says :
'The territory of a State is that region throughout which the State makes its will permanently supreme and from which it permanently excludes all alien interference ..... The exclusive possession of a defined territory is a characteristic feature of all civilised and normal States. It is found to be a necessary condition of the efficient exercise of governmental functions. But we cannot say that it is essential to the existfirce of a State. A State without a fixed territory--a nomadic tribe for example--is perfectly possible. A non-territorial society may be organised for the fulfilment of the essential functions of Government and if so it. will be a true State. Such a position of things however is so rare and unimportant that it is permissible to disregard it as abnormal. It is with the territorial State that we are alone concerned and with reference to It we may accordingly define a State as a society of men established for the maintenance of order and justice within a determined territory by way of force.'
29. On review of the position as a whole, the following principles are deduced :
'(i) the modern way of ceding a territory is by cession of sovereignty ;
(ii) it is all the more prominent where cession of sovereignty is followed by 'tradition' of the territory ;
(iii) cession of full internal sovereignty without cession of territory is not a normal state of affair, particularly because, possession of territory is a necessary condition of the efficient exercise of government functions ; and
(iv) to bold that the entire internal sovereignty along with the administration was transferred without the territory would be something abnormal and repugnant is not unconceivable.'
30. In this view of the matter, I bold that cession of territory has taken place in this particular case. Suppose, for instance, in order to exercise fully and exclusively the powers, authorities and jurisdiction foe and in relation to goverance of the country, the tradition (handing over of the territory) has taken place and occupation thereof has been acquired by the receiving State, the latter, as an act of appropriation, would itself amount to cession. (See Article 220 of Oppenheim International Law, vol. 1). If, after such occupation, the receiving State acts in a manner, as if the territory has been acquired, the setting aside of such an act or declaration of its illegality or invalidity would be beyond the competence of Municipal Courts.
31. There is another aspect of the question. It is this. That Indian States owned territories, was, in almost all of the cases, a fiction of law. In this connexion, I will rely upon the historical facts collected in Lee Warner'a Book on Native States of India, The author defines a 'Native State' as
'a political community, occupying a territory in India of defined boundaries, and subject to a common and responsible ruler who has actually enjoyed and exercised as belonging to him in hia owa right duly recognised by the supreme authority of the British Government any of the functions and attributes of internal sovereignty.'
I lay stress on the worcla underlined (here italicised) and invite attention to mention of territory as in occupation of 'political community'.
32. He observes at pp. 32-33 :
'No Native State In the interior of India enjoys the full attributes of complete external and internal sovereignty, since to none is left either the power of declaring war or peace, or the right of negotiating agreements with older States ; but the sovereignty of Native States is shared between the British Government and the Chiefs in varjing degrees. Some States enjoy a substantial immunity from interference in nearly all functions of internal administration while others are under such control that the Native sovereignty is almost completely destroyed. But communities whose rulers ordinarily exercise any, even the smallest degree of internal sovereign authority, are classified in India as Native States and excluded from the territories subject to the King's Law.'
Here, too, the reference is to enjoyment of attributes of sovereignty.
33. At p. 37 :
'The rest of the once semi-sovereign communities are grouped under one or more political divisions called Thana Circles, over each of which a Thanadar with magisterial and judicial powers presides. All of the descendants of the original Chiefs conduct the revenue administration of their patches of territory on their own system, and their holdings are treated as beyond the jurisdiction of British India. Bat their jurisdictory powers vest for them and by theic tacit assent, in the political officers of Government. The Thanadars and the British agent who supervises them are subject to the executive orders of the British Government, but not the jurisdiction of the Courts of law established in British India. The Native State thus subsists and is not converted into a British Province ; and the remedy applied avoids the precedent set by Rome of annexation under the plea of misrule. That which happened in Mahi Kanta has .... occured also in Kathiawar and the Rewa Kanta, where many Tatukadara who have lost their jurisdiction retain the status of Native Chiefs.'
Here too the same conception of 'sovereignty' being expressed in terms of 'territory' is maintained.
34. At p. 38 :
'But the Indian term 'Sananda' requires explanation. It may be translated as a diploma, patent or deed of grant by a sovereign, of an office, privilege or right. In fact, in Lord Canning's Sanandas of adoption the word 'grant' replaces the more usual term 'Sananda' in the proviso attached to the grant of the right of adoption.'
35. This precludes any notion of a Ruler owning a territory as his own except that he is granted the leave of exercising some functions of sovereignty, subject to the control wbiah may ex-tend to complete negation thereof, of the British suzerainty.
36. This is amply borne out from the following extracts at p. 42:
'The resignation of Peshwa sovereignty in 1818, the trial of Emperor of Delhi, the transfer of Company's rule to the Crown, and the deposition of late Gwaikar of Baroda, are historical events which affect Indian treaties and modify phrases of equality or reciprocity, just as the 'War of Sucession' adds to the Constitution of the United States the principle that the Union cannot be dissolved.'
37. The aforesaid quotations bring it home to the students of International and Constitutional law that the Native Indian States were holding the territories not because they were owners thereof but because certain attributes of internal sovereignty, in some cases, to the fullest extent and in others to a very slight or nominal extent had either been granted or conceded to them, subject always to their complete extinguishment, at the will of the paramount power. In short, it was sovereignty at will. The concision deducible is that they held the territories only in an ideal sense which truly belocged to the aocial community that occupied it. Tne Rulers and the British Government shared, as between themselves, the attributes of sovereignty over the territories while the Britiah Government had power to exercise the full internal sovereignty to the exclusion of a Native Chief. They would still call him a ruler of a territory. Judged in this historical retrospect, it leaves no room for doubt that 'enjoyment of attributes of sovereignty' and 'possession of territory over which sovereignty was being exercised' are convertible. Accordingly, cession of all attributes of internal sovereignty (those of external sovereignty having already been ended) amounts to ceeeion of territory. In this sense, I would hold that the territory has also been ceded, but as this finding is not essential for the decision of the cases before me, I should leave it open. I, however, entertain no doubt, about the conclusion that I have arrived at.
38. Now, I shall examine the position from the standpoint that there has been irrevocable cession of full and exclusive legislative, judicial and executive powers essential for governing the territory and that no attributes of sovereignty have been reserved for the Rulers.
39. Mr. B.N. Das, in reply, contends that the Act of Orissa Government, complained of, is an Act of State and is not subject to the jurisdiction of the Municipal Court; secondly, that it is not essential fur the txerciee of the jurisdiction ceded to the Dominion Government that there will be cession to territory. In this connexion, he relies on Secy. of Stats v. Rustom Khan, A. I. R. (29) 1941 P. C. 64: 68 I. A. 109. This case fully bears out the views that I have taken Mr. P.K. Das argues that it is the King's prerogative thus makes all the difference. I shall presently show that the Executive of every Sovereign Independent State owns prerogative rights of 'legislating for and governing territories that do not fall strictly Within their dominions, provided the jurisdiction had been acquired by any meana including cession (of jurisdiction).
40. The next question that falls to be considered is whether 'the legislative function' has, in this case, been assigned to the Government of Indian Dominion or to the Dominion legislature. The answer to this is to be found in the Constitution of the Dominion. But a different position may present itaelf for solution, in a case when it is assumed along with the powers the territory is not transferred. In such a case, legislature apart, the Executive of the Dominion can certainly exercise the power of making and promulgating laws on its own responsibility or may subject itself to be regulated by the Legislature. So long as the Legtslature legislates laws with the object of being obeyed by the Executive, in executing its power and funcEion of administration, it does not legislate beyond its competence Historical retrospect of the dual Government of the Indian States by the Chiefs, and the Governor-General of India, as representative of the King of England, will sufficiently illustrate the position. It may be said that the King of England could make lawa for exercise of jurisdiction in foreign territories sucb as Indian States by virtue of his ''prerogative'. There is, however, no charm in this word. It consists of the residue of the sovereign powers unappropriated by Parliament together with those powers expressly granted to the Crown by Statute (Osborn Concise Law Dictionary).
'Prof. Dicey defines prerogative more precisely as the discretionary authority of the Esecutive and he explains this to mean everything which the King (n this case the Governor General) and his servant can do without authority of an Act of Parliament': (inson--Law and Custom of Constitution).
The Executive head of every independent sovereign State enjoys the omnipotence of prerogative and it is not peculiar to the King of England. With the cession of Legislative power, as evidenced by the agreement, the Executive can legislate. If they (the Executive) could not legislate or otherwise govern before the cession, it was because of the Law of Nations by which every member of the State is bound, The agreement removes that barrier.
41-42. It is here necessary to trace the origin of the activities of the 'Provinceof Orissa' in the concerned States in order to test their legality.
43. The constitutional documents relevant to the issue are set oat herein below in chronological order:
(1) The Indian Independence Act (10 and 11 Geo. VI oh. 30).
(2) Standstill Agreement.
(3) Inatrumentof Accession d/- 16th August 1947.
(4) The Agreements d/. 15th/30th December 1947.
(5) Extra Provincial Jurisdiction Act, 1947 (Act No. XL.V1I (47] of 1947).
(6) Central Government Ministry of State Notification NOS. 111+1B//-d New Delhi, d/ 23rd December 1947, and 172-1B, dated 23rd March, 1948.
(7) The Administration of Orissa States Order, 1948.
44. Of the above, besides the Indian Independence Act, and the Extra Provincial Jurisdiction Act, alt others are either Acts of State or Executive Order in the nature of legislation Items 2, 3 and 4 are transactions between two Sovereign States and hence Acts of State. The discrimination of their validity or otherwise is beyond the competence of Municipal Courts and they must be assumed as valid and binding upon all the Courts in the State (Indian Dominion) who shall take judicial notice thereof. Item 1 above is not impugned before us. Item 5 (Extra-Provincial Jurisdiction Act) is the much impugned Act being the fountain eource of all powers and jurisdiction of the Government of Orissa. Item 4 is not attacked as to its validity or legality but its construction was the subject of much serious controversy at the Bar, about which I have already arrived at my conclusion, though for the purpose of this case, I am assuming that not the territory but full internal sovereignty was ceded to the Dominion Government provided Constitutional law as well as International law assumed existence of any such distinction however thin.
45. The Extra-Provincial Jurisdiction Act has been impugned on the assumption that it purports to make law for a territory beyond the Dominion of India over which Dominion Legislature has no power to legislate. Reliance is placed upon Section 6. Indian Independence Act. Sub-section (i) of the section enables the Legislature to make laws for the Dominion including laws having extra-territorial operation. It is rightly contended that 'laws with extra-territorial operation' are different from 'laws for extra territories' that is, territories beyond the Dominion.
46. In this connexion, it is submitted that the Dominion Legislature is a creature of British Parliament and its legislation must be operative within the limits, specified in that behalf, by the Parliamentary Statute, namely, the Indian Independence Act This agreement, however, overlooks Sub-section (ii) of the section. According to Sub-section (ii) and Sub-section (iv), it is only the Dominion Legislature that can put a limit upon its legislative power for the future, but not the Independence Act nor any other Act, Order, Rule or Regulation, passed under such Act of the Parliament, of the United Kingdom. I shall quote Sub-section (ii) so far as is matarial for this purpose. It reads:
'No law and no provision of any law made by the Legislature of either of the now Dominions shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provision of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any Bach Act, and the power of the Legislature or each Dominion include the powers to repeal or amend any such Act, Order, Rule or Regulation in so far it is part of the law of the Dominion.'
The Dominion Legislature is as good a Sovereign Legislature as the Parliament of the United Kingdom.
47. It is sought to be urged by the learned Advocate-General that Sub-section (ii) of the section will operate to validate any such law meant for any territory beyond the Dominion. It will amount to an act of State of a sovereign Legislature of an independent State. This contention, however, is not sound. Until any other law having the effect of repealing Section 6, Indian Independence Act is made and promulgated by the Dominion Legislature, it cannot make any law for area beyond territorial limits of the Dominion. It is true that by accession, the concerned States have become part of the Indian Dominion but the legislative power of the Legislature in respect of the acceding State is limited to the subjects relating to external sovereignty of the State as scheduled in detail in the Instrument. Then the question arises whether Extra-Provincial Jurisdiction Act is only an Act with extra-territorial operation or is law for the territory of the concerned State. That the impugned Act is an Act with extra, territorial operation or is law for the territory of the concerned State. That the impugned Act is an Act with extra-territorial operation is clear fiom its preamble. The preamble reads:
'Whereas by treaty, agreement, grant, ueage, sufferance and other lawful means, the Central Government has, and may hereafter acquire, jurisdiction in and in relation to areas outside the provinces of India: It is hereby enacted as follows.'
48. The Legislature carefully avoids any reference to 'acquisition of territory' but treats of 'acquisition of jurisdiction' m or in relation to areas outside the Provinces of India. Jurisdiction includes rights, powers and authority.
49. The Central Government of the Indian Dominion, no doubt, owes allegiance to the Constitution of the Dominion and. therefore, to its Legislature. It is competent for the Legislature to confer power or powers upon the Central Government or to prescribe 'the limits' within which and 'manner in which' and 'the agency through which' any such power or jurisdiction should be exercised It has not been argued by Mr. P.B Das that the said Act as an Act with extra-territorial operation, is ultra vires the Indian Dominion Legislature.
50. Conceding, for the sake of argument, that the Act, according to what is conveyed by its language understood in its plain grammatical meaning, purports to be an Act which applies to foreigners abroad or is otherwise in conflict with any principle of International law, the Courts must obey and administer it as it stands, what-ever may be the responsibility incurred by the nation to foreign powers in executing such a law, for the Courts cannot question the authority of Parliament or assign any limit to its powers (Vide Maxwell on Interpretation of Statutes, pp. 157-158-Ref. Comp. Bonham's Case, (1609) 8 Rep. 118a, commented on in Kemp v. Nevile, (1861) 31 L. J. Ch. 158 : (10 C. B. N. S. 523). Sea also Day v. Savadage (1614) Hob. 87; Land, (City of) v. Wood, (1701) 12 Mod. 688; I Kent, comm. 447. Besides, by transfer of sovereignty over the one the people residing there become the subjects of the Indian Dominion for all purposes of the Government both externally and internally.
51. That there can be no serious objection to the Central Government, without the help of a Legislature, exercising powers of legislation by virtue of a jurisdiction acquired in a foreign territory through an agency appointed in that behalf has innumerable parallels. I will invite attention to instances of exercise of auch jurisdiction under the Foreign Jurisdiction Acts passed by the Parliament of United Kingdom:
'Under the Order in Council made in pursuance of the successive Foreign Jurisdiction Acts British Courts have been established and British Jurisdiction is exercised in numerous foreign territories is respect not only of British subjects but of foreigners, that is, in cases to whicn Parliamentary legislation, though recognised, confirmed, supported, and regulated by Acts of Parliament, derives its authority, ultimately not from Parliament, but from powers inherent in the Grown or conceded to the Crown by a foreign State.' (See Illbert'a Government of India, 3rd Edn., p, 383).
52. The learned author at p. 395 of his book says:
'But in the third stage the Foreign Jurisdiction Acts have been applied to certain territories in Africa which are under the exclusive protectorate of England in this sense, that their Chiefs are debarred from entering diptomatio relations with any other European Power and that consequently such extra-territorial jurisdiction as is exercised within the territories ig monopolised by officers of the British Government instead of being exeruiaed by them concurrently with officers of clear European Suites.'
53. At page 400 Illbert says:
'The application to protectorates of the machinary of the Foreign Jurigdisction Acts has brought into greater prominence the question as to the classes of parsons with respect to whom the jurisdiction is exercised. The answer to these questions depends upon the nature and origin of the jurisdiction, and on the terms of the instrument by which the jurisdiction is derived from an arrangement between the British Crown and the territorial sovereign, it clearly can be made exercisable in the oaee of persona under either of those authorities.'
54. It is clear from the above that extra territorial operation of the Act can extend to persons who are not directly subjects of the legislating State but of the foreign territory bat subject always to the extent of the jurisdiction required. In the instant case, the only objection raised as to deficiency of jurisdiction related to absence of power of legislation, such as extending the Acts in force in the Province of Oriesa to the States area. This objection, however, disappears as soon as it is proved or eatablished as has been done in the earlier part of the judgment, that the attributes of sovereignty inolud. ing the power of making and promulgating laws have been ceded. It may be noted that not only a legislature bat also an executive head, granting that the latter has power of sovereignty, can exercise extra-territorial powers over a foreign territory and can make and promulgate laws in that behalf. It will be worth-while to quote the following passage from Illbert's Government of India at pp. 417-418 :
'But the Governor-General in Council baa in his executive capacity extra territorial powers far wider than those which may be exercised by the Indian Legislature. By successive Charters and Acta extensive powers of sovereignty have been delegated by the English Crown, first, to the East India Company, and afterwards to the Governor-General in Council as its successor. The Governor General in Council is representative in India of the British Crown, and as such can exercise under delegated authority the powers incidental to sovereignty with reference both to British India and to neighbouring territories, subjeci to the restrictions imposed by Parliamentary legislation and to the control exercised by the Crown through the Secretary of State for India. Thus he can make treaties and conventions with the Rulers, not only of Native States within the boundaries of what is usually treated as India but also of adjoining States which are commonly treated as extra Indian, Bach as, Afganisthan and Nepal, and can acquire and exercise within the territories of such States powers of legislation and jurisdiction similar to those which are exercised by the Crown in foreign countries in accordance with the Foreign Jurisdiction Acts and Orders in Council under them, and extending to persons who are not subjects of the King,
The existence of these powers was until recently declared, and their exercise was to some extent regulated by the Foreign Jurisdiction and Extradition Act, 1879, of the Government of India, which contained recitals corresponding to those in the Foreign Jurisdiction Act, 1890, passed by the Governor-General in Council, as representative of the British Crown, rested on the same principles, and might with advantags be based on the same statutory foundations as the extra territorial powers of the British Crown on other parts of the world. Accordingly, in 1902, an Order in Council under the Act of 1890 made provision for the exercise of foreign jurisdiction by the Governor-General of India in Council, and the Indian Act of 1879, having been superseded as to foreign jurisdiction by this Order and as to other matters by later Indian legislation was formerly repealed by the Indian Act XV of 1803.'
55. With regard to the effect of the Foreign Jurisdiction Order in Council of 1902, the author observes at p. 419 :
'The language of the Order la wide enough to include every possible source of extra territorial authority. The powers delegated are both executive and legislative, and are sufficiently extensive to cover all the extra territorial powers previously exercised in accordance with Indian Acts.'
56. As instance, of exercise of full jurisdiction acquired by cession, the following passage at pp. 423-424 may be noted :
'There are certain areas within which full jurisdiction has been ceded to the Government of India, and within which jurisdiction is accordingly exercised by Courts and Officers of the Government of India over all classes of persons as if the territory were part of British India. The most conspicuous instances of this is the district known as the Berar, or as the Hyderabad Assigned Districts, which, although held under a perpetual lease, and administered as it were part of the Central Provinces, is not technically, with British India. The same appears to be the position of the residences and other stations on the occupation of political officers, and of cantonments in the occupation of British troops.'
57. The learned author draws the following, conclusions after a comprehensive review of the subject 'British Juriadiction in Native States' which will prove very instructive and illuminating on the subject, in question. They are :
(i) The estra territorial powers of the Governor-General of India in Council are much wider? than the extra territorial powers of the Indian Legislature and are not derived from, though they may be regulated or restricted by, English or Indian Acts.
(ii) The powers are exercisable witbin the territories of all the Native States of India. Whether they are exercisable within the territories of any State outside India is a question which depends on the arrangements in force with the Government of that State, and on the extent to which the powers of the Crown exercisable in pursuance of such arrangements have been delegated to the Governor.General.
(iii) The jurisdiction exercisable under those powers might be made to extend not only to British subjects and to subjects of the Stats within which the jurisdiction is exercised, but also to foreigners.
(iv) The classes of persons and cases to which jurisdiction actually applies on the agreement, if any, in force with respect to its exercise, and, in the absence of express agreement, or usage and the circumstances of the case, and may be defined, restricted, or extended accordingly by the instrument regulating the exercise of the jurisdiction.
58. Besides the above, certain extracts from Lee Warner's Book on Native States in India will illustrate that foreign jurisdiction can be exercised by an Executive Government in a much wider sense than by the Legislature. The latter in making laws with the extra-territorial operation, exercises personal jurisdiction in foreign territories while the former can, by its power of legislation derived from the owner of the territorial sovereignty over an area, exercise jurisdiction over the subjects of the foreign states. At p. 358 he says :
'The jurisdiction which the Governor-General in Council exercises through his delegates the Political Agents, is the Native States, of foreign jurisdiction ; a portion of the full attributes of sovereignty or jurisdiction which, as was shown in the second chapter, are distributed in various degrees. With the Chief's consent, express or implied, the Governor-General in Council shares with him the attribute or sovereignty known as jurisdiction. The subject of the Native State who may contest the authority of the Courts thereupon established by the Governor-General in Council, will get no redress from the sovereign of his State who admits the right of British Interference. If he appeals to British Law, he will be referred to the provisions of British law, which, although they do not confirm, yet support and regulate the exercise of foreign jurisdiction in the case in question. 'While Act XXI [21] of 1879 was in force, its Section 5 declared that the Notifications of the Governor-General in Council issued under the Act were conclusive ; and, since the appeal of that Act, the Foreign Jurisdiction Act, 1890, and the Kind's Order in Council, of 11th June 1902 together with the Notifications published under it by the Governor-Genet at in Council, warrant the Officers concerned in exercising the powers entrusted to them, and prevent other British subjects and British Courts from raising any objections.'
At p. 359, Lee Warner writes :
'When the subject of Hallway Administration is dealt with, it will be found that the Native States usually cede 'full jurisdiction short of sovereign Powers'. The reservation saves the railway lands ceded by them from annexation, whilst the Governor-General is able to provide the necessary Courts for the trial of railway cases and to equip them with the necessary laws and rule of procedure.'
At p. 365, he writes :
'The laws which are introduced are not passed by the Legislative Council of India, but are applied by the Government of India ; and the Courts, which administer justice within them are Courts established by the Governor-General in Council, or if for convenience' sake neighbouring British Judge or Magistrate is given authority over these areas, he exercises his functions not as a British Judge or Magistrate, but under special appointment, under the provisions of the Foreign Jurisdiction Act.'
59. In consideration of what I have said above, I may safely conclude that under the Extra Provincial Jurisdiction Act, 1947, of the Indian Dominion Legislature corresponding to Foreign Jurisdiction Act, 1890, of the Parliament of the United Kingdom, Foreign Jurisdiction Act (XXI [21] of 1879) of the British Indian Legis. lature, later replaced by the Foreign Jurisdiction Order in Council, 1902, by which the Governor-General of India wag empowered to exercise jurisdiction over foreign territories outside British India such as those of Native States and the like, the Orisea Government derives its power to exercise authority and jurisdiction in relation to the governance of the territories of the concerned States, In exercise of auch power, the Oriasa Government has extended to the said territory the application of aeveral Acts (Orissa) including the Orissa Maintenance of Public Order Act.
60. In my judgment, the passing of the Extra-Provincial Jurisdiction Act, the Notification of the Government of India delegating its authority to the Government of Orissa and Orisaa Government's exercise of the powers and extension oi Orisaa Maintenance of Public Order Act, to the territories concerned are all intra vires, valid and binding upon the subjects of those territories. This would completely dispose of the petitions, but, however, as the learned counsel have cited certain authorities, I consider it my duty to deal with them in as ample a manner as the necessity of the case requires.
61. Mr. P.R. Das relied upon the following cases for establishing his proposition that the Native States were outside the Dominion of His Majesty the King of England and neither British Indian Laws, nor law paaaed by British Parliament had any operation in those territories. The cases cited do support that proposition, nevertheless, they support the view taken by me as above that cession of powers and jurisdiction by one State to another can empower the latter to exercise internal territorial sovereignty. Each case must depend on its own facts. The main spring of powers, authority and jurisdiction will be the treaty, engagement or agreement, as the case may be. I shall now proceed to deal with the cases cited one after the other.
62. The Empress v. Keshub, 8 Cal. 985 : (11 C. L. R. 241 F. B.) decides that the territory of Mayurbhanj was not a part of British India. Bitchitranund Dass v. Bhugbut Perai, 16 Cal. 667 follows the Full Bench decision of The Empress v. Keshub, 8 Cal. 985: (11 C.L.R. 241 F.B.), and holds that Keonjhar was not a part of British territory.
63. Statham v. Statham, 1912 P. 92 : (81 L. J, P. 33)--In this case it was observed.
'but, though Hia Highness is thus not independent, he exercises as ruler of his State various attributes of sovereignty, including internal sovereignty, which is not derived from British Law, but is inherent in the ruling chief of Baroda, subject, however, to the suzerainty of His Majesty the King of England and to the exercise by the Government of India of such of the rights and powers of territorial sovereignty as have by treaty, usage, or otherwise passed to and ars exercised by the swerain, such as, for instance, the exercise of jurisdiction over Europeans and Americans in Baroda, of interference to settle disputes as to succession to the State or to put a stop to gross misrule in the State, or to regulate armaments and the strength of the military forces & c.' It sbould be nuted that the powers of interference enumerated in the underlined (here italicised portion of the passage are mentioned as 'attributes of territorial sovereignty.'
64. The nest ease relied upon is that of Hemchand Devchand v. Sakarlal, 1906 A. C 212.In this, it was held that Kathiwar was not, asa whole, withm the King's Dominions. Withregard to the legislative dependence, it wasobserved :
'No legislative power over it has been claimed The intervention has never been carried further than was judged necessary, in this emergency, for the maintenance of peace, good order, and seaurity. The position of the chiefs has always been respected; and at least in the case of more important among them, many of the inctions commonly regarded as attributes of sovereignty have been preserved to them. The form adopted in establishing and regulating tribunals in the province has been that which wag regular and appropriate if it was not British territory, but quite irrigular and inapplicable if it was.'
From the aforesaid passage, it is clear that under the power ceded, under the treaty arrangements, to the British Indian authorities, some sort of regulations were in operation for establishing and regulating tribunals for admmistration of justice involving thereby a power of making laws and enforcing their administration,
65. Next, much reliance is placed upon the case of Muhammad Yusuf-Ud.-Din v. Queen Empress, 24 I. A. 137 : (25 Cal. 20 p. C). In this case by some correspondence between the Nizam and the Governor-General, civil and criminal jurisdiction over the areas of the railway line running through the Nizam's territories had been ceded. A higher jurisdiction having been sought to be exercised by a Notification or Order of the British Indian Govermnent, it was challenged by the Nizam. The question came up before their Lordships of the Privy Council, who held that mere yielding up of civil and criminal jurisdiction did not amount to a grant or cession of territory and the jurisdiction claimed, being an excess of the jurisdiction granted, could not be sustained--this case does not detract from the view taken by me inasmuch as the agreement between the Indian Dominion and the concerned States purports to yield up the entire jurisdiction essential for the governance and administration of the territories, and I have discussed, at length, the real import thereof. In the result, this case does not conflict with the view taken by ma, it being an authority on its own facts.
66. The case of Macleod v. Attorney-General, for New South Wales, 1891 A. C. 156 : (60 L. J. P. C. 55) is an authority for the proposition that any legislation deriving a jurisdiction from the Imperial Parliament cannot legislate so widely as to govern all persons in the habitable Globe. Certain limitations must be placed on such legislation so as to confine its oprations within such limits as are within the territorial as well as personal jurisdiction of the Legislature. 'Personal jurisdiction' is defined by Lord Winsleydale as legislative power over persons who are natural born subjects or residents whilst they are within the limits of the Kingdom or petsons who owe obedience to the laws of the Legislature and whose interests the Legislature is under a correlative obligation to protect. Applying these principles to the Extra-Provincial Jurisdiction Act (impugned as ultra vires by the petitioners' learned counsel), it can be safely concluded that it does not overstep the limitations, if any, placed upon the legislative power of the Indian Dominion Parliament, inasmuch as, the Act purports to govern Indian Dominion Executive who owe obedience to the laws of the said Parliament, in exercise of such power, authority, and jurisdiction as they acquire by treaty usage, sufferance or by other lawful means. Besides, as I have already said, the Dominion Government having acquired, by virtue of 'the agreement' sovereign powers enabling them to govern and administer the country, the residents have become the subjects of the Indian Dominion and their interest the Legislature is under a correlative obligation to protect. If the impugned Act purports to apply to such subjects, it doea nob offend against the principle enumerated by the Privy Council in Macleod's casa: (1891 A.C. 455: 60 L. J. P C. 55).
67. The next case relied upon is (Duff Development Co. Ltd. v. Government of Kelantan, 1924 A. 0. 797 : (93 L, J. Ch 343). This case was cited to prove that the constitutional position of a sovereign is not apphilated by agreement or treaty witb a superior power which limits its powers in the sphere of affairs relating to its internal territorial sovereignty and that when a question arises as to whether a particular State is a sovereign State, it is more for the Government of the country than for the Court to decide. As a proposition of law, it was laid down :
'That a State may without ceasing to be a sovereign State be bound to another more powerful State by an unequal alliance. No doubt the engagements entered into by a State may be of such a character as to limit and quality; or even to destroy the attributes of sovereignty and independence: Wheaton, Edn. 5, p. 50; Halleck, Edn. 4, p. 73; and the precise point at which sovereignty disappears and dependance begins may sometimes be difficult to determine. But where such a question arises, it is desirable that it should be determined not by the Courts which must decide on legal principles only, but by the Government of the country, which is entitled to have regard to all the circumstances of the case. Indeed, the recognition or the non-recognition by the British Government of a State as a sovereign State has itself a close bearing on the question whether it is to be regarded as sovereign in our Courts'.
The sovereignty of the Government of Kelantanwas decided on terms of the treaty by whichboth the States were bound. Apart from thegeneral principles laid down, this case is anauthority on its own facts. It is always a matterof construction of the deed embodying cession ofpowers, authority aad jurisdiction or territory,as the case may be.
68. The case of Triccam Panachand v. B.B. & C. I. Rly. Co., 9 Born. 344, is likewise an authority on its own facts, the decision being based upon construction of an agreement by which the Thakare (the chief) assigned to the Officers of the Government of Bombay, in perpetuity, a spot of land. This case has no application to the facts of the present case.
69. Lastly, reliance is placed upon a passage occurring in Oppenheim's International Law, 6th Edn. (foot-note) at p. 168, namely :
'The Courts of the United States of America have always upheld the theory that the Federal Government is sovereign as to all powers of Government actually surrendered, whereas each member-State is sovereign as to all the powers reserved.'
There is no dispute about the correctness of the position thus enunciated. If the matter rested with the Instrument of Accession, the Dominion Government and the concerned States should have respectively occupied the same status as the Federal Government and the member-States in the United States of America, but the present is a case in which the concerned States did not reserve any power and actually surrendered all powers of Government. After such surrender they can claim no sovereignty as against the Dominion Government.
70. In the supplementary argument on behalf of the petitioners, it was urged, relying upon Section 8, Government of India Act, 1935, as adapted by the India Provincial Constitution Order, 1947, that the Executive Authority of the Dominion is co-extensive with the legislative power of the Dominion Legislature. 'This argument is untenable in view of the express provision of the section, the relevant portion of which reads :
'Subject to the provision of this Act, the Executive Authority of the Dominion extends to the matters with respect to which the Dominion Legislature has power to make laws, including the exercise of rights, authority and jurisdiction in and in relation to areas outside the Dominion.'
Attention is to be paid to the underlined words (here italicised) above. These words conclusively prove that the authority of the Executive far exceed that of the Legislature. This should be so as the Executive Authority of the Dominion posses ses 'Prerogative' (rights and powers).
71. I am clearly of opinion that there is no merit in the petitioners' cases and their petitions are rejected.
Das, J.
72. I agree that the applications should be dismissed. The prosecutions which are sought to be quashed are for alleged breach of certain notifications issued under the Orissa Maintenance of Public Order Act. The validity of the said Act as such or of any of the provisions thereof or of any notifications thereunder are not challenged before us and we are not concerned with the same in these applications. What is challenged is the application or the applicability of the said Act to the Oriesa States, in particular to Bamra and Kalahandi which are comprised in the Orissa States.
73. In the context of the attainment of Dominion Status by India on 15th August 1947, the Rulers of the Orissa States executed Instruments of Accession under Section 6, Government of India Act, and Standstill Agreements under Section 7, Indian Independence Act. They or most of them including Bamra and Kalahandi executed what may be called for convenience 'Integration Agreements' on 14th December 1947, and subsequently, whereby : 'Exclusive Authority, Jurisdiction and power for and in relation to the Governance of the State' has been ceded to the Dominion Government. The Central Legislature enacted the Extra-Provincial Jurisdiction Act (Act XLvm [48] of 1947) whereby the acquisition by the Central Government (which means the Governor-General by the General Clauses Act) of jurisdiction in and in relation to areas outside the provinces of India by various lawful means is recognized and the exercise of it is regulated. This Act is of a general nature and has no specific reference to any particular state or states and by Section 3 (2) thereof the Central Government may delegate any such extra-provincial jurisdiction to any officer or authority in such manner and to suoh extent as it thinks fit By Section 4 thereof the Central Government is authorised to make orders for the effective exercise of any suoh extra-provincial jurisdiction and such order may provide inter alia :
'For determining the laws and procedure to be observed whether by applying with or without modifications all or any of the provisions of any enactment in force in any province or otherwise.'
74. The Central Government by notification dated 23rd December 1947 (superseded by a subsequent notification dated 23rd March 1948) delegated its extra-provincial jurisdiction in respect of Orissa States to the Provincial Government of Orissa including the power under Section 4. The Orissa Government, acting under the said delegated authority passed on 1st January 1948 the Administration of the Orissa States Order, 1948, whereby elaborate arrangements are enacted for the Administration of the States. Section 4 of the said order applies certain enactments specified in the schedule thereto to the Orissa States of which the Orissa Maintenance of Public Order Ordinance (later amended as Orissa Maintenance of Public Order Act by notification dated 10th April 1948) is one. This chain of events shows that the Orissa Maintenance of Public Order Act is sought to be made applicable to the States not by its own force but by virtue of adaptation by a Legislative Order enacted by the Provincial Government of Orissa in pursuance of the authority delegated to it by the Central Government under the provisions of the Extra Provincial Jurisdiction Act, and in exercise of the jurisdiction that the Central Government has derived from the states by the Integration Agreement of December 1947.
75. The substance of the arguments on behalf of the petitioner is :
(1) That the integration agreements do not confer on any Dominion Authority the legislative power over the etates ;
(2) That the chain constituted by the following, namely, the Extra Provincial Jurisdiction Act, the delegation thereunder to the Provincial Government and the Legislative Order of the Provincial Government of Orissa extending Orissa laws to the States is in substance an attempt at legislation for an area outside the Dominion of India which is ultra vires.
76. The arguments on behalf of the Government are in substance to the effect that :
(1) That the fullest jurisdiction has been ceded under the Integration agreements, including the Legislative ;
(2) That the chain of events by which the Orissa laws have been applied to the States does not constitute any direct legislation for the States by any Legislative Authority of the Dominion in exercise of its normal powers but is merely the exercise of the ceded jurisdiction ;
(3) That the various links in this chain of events are acts of States whose validity cannot be questioned in the municipal Courts.
77. As regards this last point submitted on behalf of the Government, it is unnecessary to express any final opinion, but it appears to me to be plausible to say that, in these petitions, where the right of certain subjects of the Orissa States to challenge the validity of certain steps taken by the Dominion authorities is involved, not only the step constituting the integration agreement but also all the subsequent steps in purported exercise thereof, up to the stage of applying certain laws and making certain administrative arrangements, are all Acts of State which neither the subjects of the States nor the municipal Courts constituted by the Dominion au. thorities can question. The subjects of the state could uot question the laws if they had been purported to be applied by the ruler himself. Much less can they question the same in a municipal Court of the Dominion if the laws are applied to the State by a Dominion Authority in purported exercise of jurisdiction ceded by the ruler, the ruler himself acquiescing, in it. The rights of the subjects of a state, in which ceded jurisdiction operates, which are justifiable in the Courts established by the ceded jurisdiction are only those that are granted or recognized by the new authorities and all acts of the new authorities up to the stage of granting or recognition of rights may well be Acts of State. The judgments of the Privy Council in Secy. of State v. Kamachee Boye, 7 M I. a. 476: (4 W. R. 43 P. co.), Secy. of State v. Binraj BAI, 39 Bom. 625 : A. I. R. (2) 1915 P. C. 59 and Vagesinghji v. Secy. of State, 48 Bom. 613 : (A I. R. (11) 1924 P. C. 216) may be referred in this connection.
78. This aspect of the case has, however, not been fully argued before us and I hesitate to express a definite opinion on a matter on which we have not had the advantage of assistance by way of full arguments from the Bar. Further in this case it may be contended that a different principle applies. It may well be, that where the liberty of an individual is being threatened by prosecution before tribunals amenable to correction by this Court, and the prosecution purports to be for voilation of certain laws which the Government purports to have enacted in pursuance of the powers conferred by the Dominion legislature (in this case the extra Provincial Jurisdiction Act), the individual though not a subject of the Dominion (assuming that he continues to be a subject of the State) has the right to approach this Court and ask it to examine the validity and legality of the exercise of authority by the Dominion authorities on some principle analogous to that indicated in Hemchatid Devohand v. Azam Sakanlal, 1906 A. C. 312 at p. 238 para. 1.
79. As regards the further arguments that have been raised by the learned Advocate-General on behalf of the Government to the effect that apart from any effect of the integration agreements, the states form integral parts of the Dominion of India and that the rulers of the States are not sovereigns in any sense of the term, it is unnecessary to go into these at any great length, because so far as at least as these cases are concerned, we must go by the position assumed in the integration agreements. It is obvious that the integration agreements proceed on the footing that the states are not part of the Dominion of India and the rulers of the States have got sovereign atatua, for the purpose of entering into this agreement and ceding jurisdic. tion over their territory. It is, therefore, unnecessary to decide whether in a larger sense they are sovereigns and whether the states are parts of the dominion territory. It may be also added that Section 6 (1), Extra Provincial Jurisdiction Act has been brought to our notice. It isnot contended that it bars our jurisdiction and we have not been asked to make any reference thereunder.
80. It is now necessary to consider the validity of the petitioner's arguments. The first question that arises for consideration is the construction of the integration agreements dated 14th December 1947. The agreement states that the ruler thereby cedes to the Dominion Government
'full and exclusive authority, jurisdiction and powers for and in relation to the governance of the states'.
The contention of the learned counsel for the petitioner is that this cedes to the Dominion Government only what may be called the executive authority and jurisdiction and not any legislative authority. I agree, with my Lord, the Chief Justice for the reasons given by him, in coming to the conclusion that this agreement is effective to transfer complete legislative powers and authority and jurisdiction. The phrase used, namely.
'full arid exclusive authority jurisdiction and powers for and in relation of the governance of the states'
ia a phrase of the widest amplitude and there is absolutely no reason to limit it to what may be called mere executive authority. The demarcation between executive, legislative and judicial functions, amongst the functions of the Government, is a modern conception of democratic states and does not appear to have existed in these states themselves. The word 'Governance' comprises all the three functions and no reservation can be implied in favour of the grantor of the jurisdiction who apparently had all the tbree functions combined in him. The learned counsel for the appellant a lays stress upon the use of word 'Administration' in the preamble of the Agreement as also in the place where the agreement provides as follows :
'Agrees to transfer the administration of the said States to the Dominion Government from 1st January 1948.'
81. The learned counsel would have it that the word 'Administration' is confined to the executive functions. Apart from the fact that the use of the word 'Administration' in the preamble cannot limit the scope of the operative words of the agreement which so clearly state that the Governance of the States has been ceded, there is no authority in support of the position that 'Administration' means only executive functions. That it is not so has been fully pointed out by my Lord, the Chief Justice and would appear also to follow from what has been assumed by the Privy Council with reference to analogous arrangements noticed in Secy. of State v. Rustam Khan, 68 I. A. 109 : (A. i. R. (28) 1941 P. C. 64) and Dattatraya v. Secy. of State, 58 Cal, 570 : (A I. R. (17) 1930 P. C. 267). The use of the word 'Full and Exclusive' in the agreement is very significant and it is obvious that if only executive function was intended to be ceded by the agreement and not the legislative function also, the executive jurisdiction itself could not be full and exclusive inasmuch as the legislative machinery of the state would be competent to limit it and to regulate it or even probably to negative it. The fact that the agreement provides only for payment of only a personal allowance from the revenues of the states is also very significant because if what was intended to be ceded was only executive functions and not either the legislative or the judicial functions it is difficult to see wherefrom the ruler would have found the financial resources for carrying on the judicial and legislative functions. It is therefore absolutely clear to me that what has been ceded is the entire governmental function inclusive of the executive, judicial and legislative function and that there has been no reservation with respect to any portion of the Government functions. In fact, the agreement amounts to a complete transfer of internal sovereignty of the States to the Dominion Government, probably retaining for the ruler a titular sovereignty as might appear from the references to the Gadi of the States in Article 5 of the agreement Whether this-titular sovereignty enables him to revoke this agreement is a question on which we are not called upon to express any opinion in this case.
82. The learned counsel for the appellants has sought to derive support for bis argument by submitting that this agreement was only a supplementary instrument of accession, the implication being that if it is treated as a supplementary instrument of accession, he may be able to press in aid Section 8, Sub-section 2, Government oE India Act which requires that an instrument of accession shall specify the matters which the ruler accepts as matters with respect to which the Dominion Legislature could make laws for the states and the limit actions to which the powers of the dominion legislature to make laws for the state are subject I agree with my Lord, the Chief Justice, for the reasons given by him that this agreement is not a supplementary instrument of accession contemplated by Section 6, Government of India Act. It has not been contended before us that it is not open to the ruler of a State to cede all or any of his functions to the Dominion Government otherwise than by an instrument of accession. Mr, P. R. Das, learned counsel for the appellants, has in answer to a question put to him candidly conceded that he could not take up any such position. There is nothing in the Government of India Act which limits the power of the Dominion Government or of the Rulers of States to enter into agreements between themselves. Section 8, Government of India Act impliedly recognises the contrary. Indeed if the Rulers are sovereigns as the applicants contend, their power to enter into any kind of agreement they choose with any other sovereign state could not be denied or controlled by any express or implied legislation of the Dominion Government.
83. The next question that has been raised is as to the validity of the arrangements for the extension of the specified Acts that have been made in pursuance of the purported exercise of the jurisdiction ceded under these integration agreements. The argument is that what has been done amounts to direct or indirect legislation for the States by dominion authority and that dominion authorities are not competent to legislate for the states inasmuch as the states are not part of the dominion territory. In support of the position that states are not territorial part of Dominion of India, various oases have been cited and it has been urged that a mere grant of jurisdiction however full and ample and exclusive does not amount to cession of territory. There is undoubtedly considerable authority for the view that states are not part of the Dominion territory and that cession of jurisdiction does not amount to cession of territory (vide. Muhammad Yusuf Uddin v. Queen Empress, 24 I. a. 137 : (25 Cal. 20 P. C ); Hemchand Devchand v. Azam Sakarlal, (1906) A. C. 212; Secy. of State v. Rustam Khan. 68 I. A. 109 ; (A. I. R. (28) 1941 P. C. 64) Dattatraya v. Secy. of State, 58 cal. 570 : (A. I. R. (17) 1930 P. C. 267). It may also be assumed that a sovereign legislature, normally legislates for its own territory or its own subjects. It is however unnecessary to express any final opinion on these matters because what purports to have been done in this case is not on the footing that the States are dominion territory or that the dominion legislatures, either of the centre or of the province, have legislated for the states. What all has been done and purports to have been done is that the Dominion Government has assumed jurisdiction in purported exercise of jurisdiction ceded to it by the rulers of the states and the Dominion legislature intervened to regulate the method and manner of the exercise of that jurisdiction. There can obviously be no complaint about it by the rulers much legs by the applicants inasmuch as the very agreement to cede jurisdicion provides that the jurisdiction may be exercised 'in such a manner and through such agencies as the Dominion Government may think fit.'
84. Apart, however, from the wide terms of the integration agreements themselves as to the manner in which and the agencies through which the ceded jurisdiction can be exercised, can it be said that the regulation of the exercise of jurisdiction by the Exka-Provincial Jurisdiction Act is ultra vires?--The powers of the Dominion Legislature, which now a sovereign legislature have to be judged with reference to the terms of Section 6, Indian Independence Act of 1947 until altered. It provides for the power to make laws for the Dominion including laws having an extra-territorial operation. By the Extra Provincial Jurisdiction Act the Dominion has not legislated for any area outside the Dominion. It has only recognised the lawfulness of the acquisition of extra-provincial jurisdiction by the Dominion Government, and has regulated the method and the manner in which such jurisdiction is to be exercised. It has. therefore, legislated to regulate and control Dominion authority and has in that sense, legislated for the Dominion. The utmost that can be said is that the actual exercise of the extra-provincial jurisdiction by the Dominion Government, in terms of the Extra-Provincial Jurisdiction Act, has an indirect extra-territorial operation. Whatever may be the nature and the extent of the extra-territorial jurisdiction of the Dominion legislature, it cannot be doubted that an enactment of the Dominion Legislature, which has only this indirect result, if at all, is well within the power of the Dominion legislature 'to make laws for the Dominion including laws having extra-territorial operation.' Hemchand Devchand v. Azam Sakarlal, 1906 A. C. 212 and Macleod v. Attorney-General for New South Wales, 1891 A. C. 455 : (60 L. J. P. C. 55) which have been cited for the petitioner in this connection do not apply to the facts of this case. The Extra Provincial Jurisdiction Act, as has been pointed out, it modelled on the British Foreign Jurisdiction Acts, and there is no reason to think that Dominion Legislature, which is now a sovereign legislature, has no powers of legislation in respect of the dominion and for its purposes as wide as those of the British Parlia. ment. The theory on which the Foreign Juristiction Acts in England are based is that while it is the prerogative of the Crown to acquire jurisdiction in foreign territory, democratic con. Btitutional property requires that the exercise of that jurisdiction by the executive authority on behalf of the Grown must be brought under democratic Parliamentary control and, therefore, requires to be regulated by the Parliament. Accordingly, the British Foreign Jurisdiction Acts recognise the prerogative of the Crown to acquire and exercise foreign jurisdiction and purport to regulate it. An Act, like the Extra-Pro, vincial Jurisdiction Act, which follows the same constitutional precedent and praccioe, and is well within the four corners of Section 6, Indian Independence Act, cannot be made out to be ultra vires of the powers of the Indian legislature. It has been argued by learned counsel for the applicants that while the Foreign Jurisdiction Act in Section 1 states that it shall be lawful for Her Majesty the Queen, to hold and exercise any jurisdiction which Her Majesty has, or may have, within a foreign territory, in the eame and as ample a manner 'as if Her Majesty had acquired that jurisdiction by cession or conquest of territory', there is no such wording in the Extra Provincial Jurisdiction Act; that no cession or conquest of territory is contemplated by the Extra-Provincial Jurisdiction Act ; and that therefore the exercise of the provincial jurisdiction that is sought to be provided for in the Act, can only be of a very limited character. It is urged that the acquisition of territory by conquest or cession is the prerogative of the Crown and that inasmuch as India is still only a Dominion the same prerogative cannot be presumed in favour of the Indian Dominion Government.
85. As has been pointed out by my Lord, the Chief Justice, in his judgment, the conception of prerogative in not one that inheres only in the British Crown but is an attribute of all sovereign executive Governments No authority has been cited for assuming that the prerogative of the Indian Dominion, as the sovereign executive authority for the dominion is for the purpose of the dominion anything less. At least in so far as the exercise of this prerogative in respect of extra-provincial jurisdiction is concerned, the preamble to the Extra-Provincial Jurisdiction Act recognises the lawfulness of its acquisition, and Section 3 thereof recognises the lawfulness of its exercise 'in such manner as it (the Central Government) thinks fit' which has the same wide import as what is stated in Section 1, British Foreign Juridietion Act as jurisdiction 'by cession or conquess'. Whatever may be the position as far as territories geographically outside India are concerned, it is inherent in the situation of the Indian Dominion Government, after the lapse of suzerainty of the British Crown under Section7, Indian Independence Act, that the States which form component parts of geographical India, and which are so completely interlinked with the Dominion of India may require to be integrated and properly administered in the interests of the dominion as well as of the states. The acquisition and exercise of such extra provincial jurisdiction in the States by the Dominion Goveroment and the regulation of the exercise of that jurisdiction by the Dominions legislature in the interests of the Dominion and the States is not opposed to any known principle of international law and is supported by the precedent and practice of the British Crown in relation to India before 16th August 1947. Neither of them can be pronounced to be invalid. It is unnecessary to dilate on this aspect of the case any further since the matter has been so fully and ably dealt with by My Lord the Chief Justice, if I may say so with respect.
86. In a supplementary case, lodged on behalf of the petitioners, it was argued that the executive authority of the Dominion Government in any acceding State, is limited to those matters in respect of which the Dominion Legislature has power to make laws by virtue of Sub-section (1) of Section 8, Government of India Act. It is enough to say, in answer to this, that this can have application only to the exercise of executive authority by virtue of an Instrument of Accession, and not to exercise of jurisdiction acquired in any other manner. Since, in this case, we have held that the integration agreement is not equivalent to an Instrument of Accession, there is no substance in this arguments.
87. For the reasons stated above, I respectfully concur in the result, that these petitions are to be dismissed.
Narasimham, J.
88. The petitioners in these cases are being prosecuted for offences under Sections 6 and 11, Orissa Maintenance of Public Order Act, 1948, in the criminal Courts at Bamra and Ealahandi. The main point urged in support of the petitions for quashing the proceedings in the criminal Courts, IB that the Orissa Maintenance of Public Order Act, 1948, was not validly applied to the States of Bamra and Ealahandi and that consequently any trial of the petitioners for contravening any of the provisions of the eaid Act was void.
89. It will be useful to give a narrative of the important incidents connected with the integration of the Orissa States with the Province of Orissa and the exercise of administrative jurisdiction by the Government of Orissa in the said States.
90. Prior to the passing of the Indian Independence Act, the States of Bamra and Kalahandi did not form part of what wag then known as 'British India' as defined in Section 311 (1), Government of India Act, 1936, but they were 'Indian States' as defined in the eaid section of that Act. The Rulers of the said States exercised limited internal sovereign powers subject to the control of the British Grown who was the paramount power.
91. The relations between the two were governed partly by the various Sanands granted to the Rulers by the paramount power from time to time and partly by the various attributes of paramountcy which were invoked by the paramount power when necessity arose. In consequence of the passing oE the Indian Independence Act, 1947, the British Grown ceased to exercise any kind of paramountcy over the said States. Soon after the Rulers signed the Instru. ment of Accession, acceding to the Indian Union and permitting the Dominion Legislature to legislate in respect of certain matters specified in the schedule to that Inetrument. On 14th December 1947 the said Rulers entered into separate agreements with the Dominion Government ceding to that Government;
'Full and exclusive authority, jurisdiction and powers for and in relation to the governance of the States'
and transferred the administration of the States to the Dominion Government with effect from 1st January 1916. The Dominion Legislature passed an Act known as the Extra-Provincial Jurisdiction Act, 1947, regulating the exercise of extra provincial jurisdiction which may be obtained by the Central Government by treaty, agreement or other lawful mentis. The Central Government, in exercise of the powers conferred by that Act, delegated those powers of governance of the Orissa States to the Government of Orissa in their Notification no. 111-IB, dated 23rd December 1947 which was subsequently modified by another Notification of the central Government no. 172-IB, dated 23rd March 1948. By virtue of the aforesaid orders of delegation, the Government of Orissa claimed to have obtained
'full and exclusive authority, jurisdiotion and powers for and in relation to the governance of the States'
of Bamra and Kalahandi. The Orissa Maintenance of Public Order Act was passed by the Orissa Legislative Assembly sometime in March 1948. That Act extended only to the areas known as 'the Province of Orissa' and did not proprio vigore apply to any of the Orissa States. But on 10th April 1948, the Government of Orissa, purporting to act as the delegated authority of the Central Government issued a Notification no. 1500-0. applying the said Act to all Orissa States including Bamra and Kalahandi. The main argument of the Advocate-General is that by virtue of the agreement of the Rulers dated 14th December 1948 read with ol. (a) of Sub-section (2) of Section 4, Extra Provincial Jurisdiction Act, 1947 and the two orders of delegation issued by the Central Government, the Provincial Government of Orissa have full powers to determine what shall be the law in any Orissa State and that consequently by virtue of the Notification no. 1500-C. dated 10th April 1948 the Orissa Maintenance of Public Order Act became the law in all the Orissa States also.
92. Mr. P.R. Das' main contention is that the agreement dated 14th December 1947 (hereinafter referred to as the agreement) did not cede to the Central Government legislative powers in Bamra and Kalahandi and that consequently neither the Central Government nor their delegated authority has the power to determine what shall be the law in the said States. He further urged that the said agreement should be construed as a supplementary Instrument of Accession as contemplated by Sub-section (3) of Section 6. Government of India Act. (As adapted by the India (Provisional Constitution) Order, 1947) and that consequently that agreement was also subject to the limitations imposed by Section 6 of that Act. I would respectfully agree with the reasonings given by my Lord the Chief Justice to show that the agreement is not a supplementary Instrument of Accession and is consequently not controlled by the limitations imposed by Section 6 of that Act. It is an agreement between two sovereign States in consequence of which one sovereign State agreed to surrender complete jurisdiction within his State to another sovereign State retaining to himself 'nothing more than a bare, nominal, or dormant sovereignty' (Illbert's Government of India, Ed. 3, p. 426).
93. The exercise of jurisdiction by one sovereign State within the territories of another sovereign State though there may not be actual cession of territory by the latter to the former, is not a new concept in international law. The various Foreign Jurisdiction Acts of the Parliament are all based on the existence of such jurisdiction and even now the Grown of England claims to exercise such jurisdiction within the Persian Gulf States and some other territories which do not form part of the British Dominion. Such jurisdiction seems to have been based on the prerogative of the Crown, though the exercise of such jurisdiction by the executive is regulated by the Acts of Parliament such as the Foreign Jurisdiction Act, 1890. (Keith's Constitutional Law, pp. 564-566 and Chalmera and Asquith Constitutional Law, pp. 390-391).
94. As regards the Indian States also such jurisdiction was exercised by the Grown through its Crown Representative prior to the passing of the Indian Independence Act, A full discussion about the nature of such jurisdiction will be found in chap. V of Illbsrt's Government of India (Ed. 3) and chap, sir of Lee-Warner's 'The Native States of India'. The nature of such jurisdiction varied from State to State. But as pointed out by Lee-Warner (p. 340) in most of the States the jurisdiction was in the nature of 'delegated jurisdiction' meaning jurisdiction delegated to the paramount power either by agreement between the power and the Ruler or else based on sufferance. It was in exercise of tbis jurisdiction that the Grown Representative applied several laws that were in force in British India to the administered areas in the States which did not form part of British India. The exercise of such jurisdiction was regulated by the Indian (Foreign Jurisdiction) Order in Council issued under the Foreign Jurisdiction Act, 1890.
95. With the lapse of the paramountcy of the British Crown, and the abolition of the office of the Crown Representative, neither the Foreign Jurisdiction Act nor the Indian (Foreign Jurisdiction) Order in Council, 1937, became operative in the States of India. The provisions of the Extra-Provincial Jurisdiction Act are taken mainly from the Foreign Jurisdiction Act and the said Order in Council. Even if, (as argued by Mr. P.R. Das) it be taken for granted that the Rulera of Bamra and Ealabandi retained full sovereign powers except those ceded to the Dominion Government by their Instrument of Accession of August 1947 there is nothing either in the international law or in the provisions of the Indian Independence Act or the Government of India Act (as adapted) to prevent the Rulers from surrendering almost all their remaining sovereign powers to the Dominion Government. Any agreement that may be entered into between the Rulers and the Dominion Government for that purpose will not be an agreement which comes within the scope of the Government of India Act (as adapted) but it will be completely outside the provisions of that Act. The jurisdiction thus obtained by the Dominion Government in the said States may, in one sense, be called ' 'delegated jurisdiction' (as Lee-Warner puta it) of the Eulers themselves. There is nothing in the Indian Inde. pendence Act or the Government of India Act (as adapted) prohibiting the Dominion Govern, ment from entering into such agreement either with the States of India or with any other foreign power. In fact, the right to enter into treaties or agreements with other powers is one of the prerogatives of every sovereign State and the Dominion Government as the executive head of the Dominion has got this prerogative power. It cannot be seriously contended that some of the prerogatives of the Crown which prior to the passing of the Indian Independence Act were exercised by the Britisb Crown are now exercised by the Dominion Government on behalf of the Crown. For instance, the priority of the Crown's debts over other dues, the exemption of the Crown from the Statutes unless there is any express provision binding the Crown, the power to proclaim martial law in times of emergency, are some of the prerogative rights which still subsist in the executive of the Indian Dominion. There is, therefore, no reason to assume that a similar prerogative right of entering into agreements either with the Rulers of the acceding States in respect of matters not covered by the Instrument of Accession, or with sovereigns of other countries does not vest in the Dominion Government. In the supplementary argument Mr. Misra relied on proviso 2 to Sub-section (i) of Section 8, Government of India Act (as adapted) and argued that the executive authority of the Dominion Government in any acceding State is limited to those matters with respect to wbich the Dominion Legislature has power to make laws. This proviso, however, can hardly bave any application in the present case where the Dominion Government purport to exercise the power as delegated authority of the Rulers themselves. As I have already pointed out, the agreement is outside the provisions of the Government of India Act.
96. All that the Extra-Provincial Jurisdiction Act lays down is that if the Dominion Government acquires such jurisdiction by any lawful means such as treaty, agreement, usage or sufferance, such juriediction may be exercised in the manner set forth in that Act. But that Act does not confer auch extra-Provincial juristiction on the Dominion Government nor has the Dominion Legislature ever assumed to itself the power to make lawa for States of Bamra and Kalahandi.
97. For the purpose of deciding these cases it is not necessary to consider whether, in effect, the agreement of 14th December resulted in the cession of the territories of Bamra and Kalahandi to the Dominion Government or else whether the agreement is revocable by the Ruler. It is also not necessary to consider whether by virtue of that agreement the Dominion Legislature can claim to legislate for the States. As already pointed out, the Dominion Legislature has not purported to legislate for the States cor baa any argument been advanced before us on the ground that any Ruler bas revoked the agreement. I may, however, observe that questions relating to the recognition by the Dominion Government of the act of any Ruler in revoking the agreement and the withdrawal or refusal to withdraw any jurisdiction in any Oriaaa State consequent on the revocation of the agreement appear, prima facie, to be questions dealing with Acts of State which cannot be called in question in municipal Courts. Bat as there was no argument on these question, I would leave them open.
98. As regard the construction of the agreement as to whether it confers on the Dominion Government powers to determine what shall be the laws in the States. I have nothing to add to the reasonings given by my Lord the Cheif Justice. The decision of the Privy Council in Secy. of State v. Bustam Khan, A. I. R. (28) 1941 P.C. 64 : (68 I.A. 109), while interpreting the lease executed by the Khan of Kalat in favour of the British Crown, applies with full force to the present case also.
99. I would, therefore, respectfully agree with my Lord the Chief Justice and hold that the Orissa Maintenance of Public Order Act has been validly applied to the States of Bamra and Kalahandi and that proceedings would lie in the criminal Courts of those States for contravention of any of flie provisions of the said Act.