In Re: Kalyanam Veerabhadrayya - Court Judgment

Excerpt:
criminal - notification - section 88 of government of india act, 1935, madras maintenance of public order act, 1947 and madras maintenance of public order (removal of doubts and amendment ) ordinance, 1949 - whether legislature of province competent to authorise provincial executive government to extend duration of act of 1947 and to continue act by notification - power of governor to promulgate ordinance during recess of legislature contained in section 88 - assent of governor general had been obtained in pursuance of proviso to section 88 (1) - legislature of province was not in session and immediate action was necessary for removing doubts and amending act at time ordinance was promulgated by governor - conditions of section 88 satisfied - held, legislature of province competent to.....order1. these are applications under section 491, criminal p. c., to issue directions in the nature of habeas corpus directing the release of the petitioners who were detained under the madras maintenance of public order act, 1947, (act i [1] of 1947). as these petitions raised some common questions of law, we thought it convenient to hear and dispose of these questions before considering the merits of each application. the orders of detention under the act in all the petitions except four, cri. m. ps. nos. 1645 and 1651 of 1949, 1527 and 1611 of 1949 were passed after 12th march 1948, and according to the petitioners on the date on which the orders of detention in these cases were passed, the madras maintenance of public order act, 1947, ceased to be in force and that therefore the.....

Judgment:
ORDER

1. These are applications under Section 491, Criminal P. C., to issue directions in the nature of habeas corpus directing the release of the petitioners who were detained under the Madras Maintenance of Public Order Act, 1947, (Act I [1] of 1947). As these petitions raised some common questions of law, we thought it convenient to hear and dispose of these questions before considering the merits of each application. The orders of detention under the Act in all the petitions except four, Cri. M. Ps. Nos. 1645 and 1651 of 1949, 1527 and 1611 of 1949 were passed after 12th March 1948, and according to the petitioners on the date on which the orders of detention in these cases were passed, the Madras Maintenance of Public Order Act, 1947, ceased to be in force and that therefore the orders of detention were without authority and were illegal.

2. The maintenance of Public Order Act, 1947 (Madras Act I [1] of 1947), hereinafter called 'the Act' in the course of this judgment, received the assent of the Governor-General on 11th March 1947 and was first published in the Fort St. George Gazette on 12th March 1947. Under Section 1, Sub-clause (3) of the Act it came into force at once. Under Sub-clause (4) it remains in force for a period of one year; but under that Sub-clause the Provincial Government is empowered from time to time by notification in the Fort St. George Gazette to extend the continuance of this Act for a further period or periods not exceeding one year in the aggregate if in their opinion it is expedient so to do. On the expiry of the Act the provisions of Section 8, Madras General Clauses Act are made applicable, as if the Act had then been repealed. Before the expiry of the period of one year from the commencement of the Act the Provincial Government by a notification in the Fort St. George Gazette extended the duration of the Act for a further period of one year commencing from 12th March 1948 (Vide, G. O, No. 446, General dated 27th February 1948, published in the Fort St. George Gazette of 2nd March 1948). This notification, it would be noticed, was issued before the expiry of the period of one year from the commencement of the Act. Sub-clause (4) of Section 1 of the Act was amended by the Madras Maintenance of Public Order (Amendment) Act, 1948 (Act XVII [17] of 1948) by substituting for the words 'for a further period or periods not exceeding one year in the aggregate' the words 'for a further period or periods not exceeding three years in the aggregate.' This Amending Act received the assent of the Governor General On 17th August 1948 which was first published in the Fort St. George Gazette Extraordinary on 20th August 1948. The life of the Act was further extended by another notification for a period of one more year from 12th March 1949. (Vide, G. O. Mis. No. 594, (public General) dated 4th March 1949) by reason of this further extension the Act continues in force, if the notifications are valid, till 12th March 1950. The orders of detention now in question were made during the period commencing from 12th March 1948. In Jatindranaih Gupta v. Province of Bihar , the Federal Court held that the power delegated to the Provincial Government to extend the duration of the Bihar Maintenance of Public Order Act, 1947, on a resolution passed by the Legislative Assembly and agreed to by the Bihar Legislative Council, with or without modifications, was invalid, and that the said Act ceased to have operation on the termination of the period of one year from the commencement of that Act. This decision was pronounced on 28th May 1949. Following the decision of the Federal Court the Calcutta High Court declared in Badal Bose v. Chief Secy. Govt. of West Bengal, 53 C. W. N. 728, that a similar power of extending the life of an Act by a resolution of the Provincial Legislature contained in the West Bengal Security Act, 1948, was invalid. This decision was pronounced on 27th June 1949. After these two decisions the Government of Madras promulgated the Ordinance of 11th August 1949, Madras Ordinance No. 1 of 1949, with a view to remove doubts regarding the validity of the continuance of the Madras Maintenance of Public Order Act, 1947, and also to amend the Act. The Legislature in the Province was in session until it was prorogued by the Governor on 2nd August 1949. The Ordinance was promulgated on 11th August 1949, as the Legislature in the Province was not in session, and as the Governor of Madras was satisfied that immediate action was necessary for the purpose of removing doubts regarding the validity of the continuance of the Madras Maintenance of Public Order Act, 1947, and for amending it. The Ordinance was promulgated after the instructions of the Governor-General were obtained in pursuance of the proviso to Section 88(1), Government of India Act, 1935. It was issued by the Governor in exercise of the powers conferred upon him by Section 88(1), Constitution Act. The Ordinance consists of four sections. Section 1 contains the short title, and Section 2 declares that the Madras Maintenance of Public Order Act, 1947, remained in force on and from 12th March 1948 and shall continue to remain in force so long as the Ordinance remains in operation. It also amends Section 1 of the Act by omitting Sub-section (4). Section 3 validates the Madras Maintenance of Public Order (Amendment) Ordinance, 1948, and the Madras Maintenance of Public Order (Amendment) Act, 1948, Act XVII [17] of 1948, and provides that they shall not be questioned on the ground that the Acts amended thereby were not in force at the time when the amending Ordinance was promulgated or the amending Act was enacted. Section (3), Sub-clause (b) is intended to validate the action taken by the Provincial Government on and after 12th March 1948 in accordance with the provisions of the Act. It states:

'No action or proceeding taken, no notification issued, no order made, and nothing done, by any authority in accordance with the provisions of the said Act at any time on or after 12th March 1948 shall be questioned on the ground that the said Act was not in force at that time.'

Section 4 of the Ordinance introduces a new section, Section 4-A in the Act:. It is presumably intended to nullify the effect of certain decisions of this Court which have taken the view that if the grounds of detention are vague and indefinite, or if there was inordinate delay in communicating the grounds to the detenu as required by Section 3 (1) of the Act, the order of detention could not be justified. The new Section 4-A inserted by the Ordinance is as follows;

'No order of detention made in respect of any person in pursuance of any of the foregoing provisions at any time, whether before, on, or after, 12th March 1918, shall be deemed to be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency, or any delay, in any communication made to such person under this Act.'

This short summary of the provisions of law which have to be considered in this judgment will enable one to appreciate the contentions urged on either sides. On behalf of the petitioners the main contention urged was that in view of the decision of the Federal Court which construed the provisions of the Bihar Act and held that the delegation was improper, it followed on the same reasoning that the delegation contained in Section 1 (4), Madras Act was equally invalid, and that at the time when the detention orders in these cases were passed, there was no law in force authorising the authority concerned to make the orders of detention, which are now in question. The petitioners' learned counsel urged that Ordinance No. 1 of 1949 was promulgated by the Governor by fraudulent exercise of the power vested in him under the Constitution Act, as the Governor intentionally prorogued the Legislature of the Province while in session with a view to clothe himself with a power of issuing an Ordinance under Section 88(1), Constitution Act. It is also invalid as no circumstances existed which justified immediate action and the issue of an Ordinance. As the Act itself ceased to be in force on 12th March 1948 the amendments sought to be effected by the Ordinance are of no legal effect, as there can be no amendment of an Act which did not exist. Nor is it possible to remove doubts in an Act which ceased to be in force. For this contention also reliance was placed on the decision of the Federal Court on behalf of the petitioners.

3. The learned Advocate. General who appeared for the Government argued that the decision of the Federal Court was distinguishable as the provisions of the two Acts were entirely different, that a bare power to extend the duration of life of an Act was not a legislative power and could validly be delegated, and that this question was not considered fully by the Federal Court, and even if there were observations in the judgment of the Federal Court, these observations were obiter. According to the learned Advocate-General, in any event the power under Sub-section (4) of Section 1 of the Act of extending the life of the Act is in the nature of conditional legislation which could validly be enacted by the Legislature of the Province. As a last resort he relied on the Ordinance as validating the detentions. In a very illuminating and able argument the learned Advocate-General canvassed at length the limits of delegated legislation under written Constitutions and also the sovereign power of the English Parliament to delegate legislative authority.

4. The primary question that requires careful consideration is therefore whether the Legislature of the Province is competent to authorise the Provincial Executive Government to extend the 'duration of the Act and to continue the Act by notification. Before dealing, with this question, it would be appropriate at this stage to dispose of a question of secondary importance raised on behalf of the petitioners. The notification of 27th February 1948 published in the Fort St. George Gazette of 2nd March 1948 extended the life of the Act from 12th March 1948. It was argued that the extension should have been from 11th March 1948, as the Act had expired by that time. The Maintenance of Public Order Act, 1947, received the assent of the Governor-General on 11th March 1947, and the assent was published in the Fort St. George Gazette on 12th March 1947. The act must, according to the petitioners, be deemed to have come into effect on 11th March 1947 when it received the assent of the Governor-General (from which date the one year should be reckoned) and not on 12th March 1947 when the assent was published in the Fort St. George Gazette. In support of this argument reference was made to a passage in Maxwell on Interpretation of Statutes, Edn. 9 at p. 409 where the learned author states :

'A statute takes effect from the first moment of the day on which it is passed, unless another day be expressly named, in which case it comes into operation immediately on the expiration of the previous day. By a fiction of law, the whole session was formerly supposed to be held on its first day and to last only that one day, and every Act, if no other day was expressly fixed for the beginning of its operation, took effect by relation, from the first day of the session.'

To the same effect is the opinion of Crawford on Statutory Construction at p. 162, Para. 106, where the learned author states :

'In the absence of a constitutional or a general statutory provision, or a provision in the statute itself relating to the effective date, the statute will take effect from the day of its passage or enactment; that is, from the date the last act necessary to complete the legislative process is performed.'

In Tomlinson v. Bullock, (1879) 4 Q. B. D. 230 : 48 L. J. M. C. 95 it was held that where no time is specified in the Act from which it is to come into operation the date on which the Act receives the royal assent is the date on which it comes into operation and takes effect from the very commencement of the day on which the royal assent is given. Of course the law does not recognise fractions of a day, and when once an assent is received, it comes into effect from the very commencement of the day. See Chenchiah v. Commissioner of Police, Madras : (1947)1MLJ190 .

5. The short answer to this argument is that the Act is governed by the Madras General Clauses Act, 1891 (Act I [1] of 1891) which lays down in Section 5 the principles for determining the commencement of an Act. According to this section, if no time is mentioned or no provision is made for the commencement of an Act, the Act comes into force upon the first publication made by the Governor in Fort St. George Gazette of the assent to the Act by the Governor. General of India. That is, the date of the first publication is taken as the date of the commencement of the Act, if no date is fixed for the commencement. The date of the passing of the Act therefore is different from the date when the Act comes into force. If the date is mentioned in the Act itself, the Act begins to operate or comes into effect from such date; but if no day is mentioned, the date of commencement of the Act is the date on which the assent of the Governor-General is published in the official Gazette for the first time. The present Act (NO. I [1] of 1947) has not fixed any date or time for its commencement. Under Sub-clause (3) of Section 1 it comes into force at once. The assent of the Governor-General was received on 11th March 1947; but the assent was published in the Port St. George Gazette only on 12th March 1947. In view of Section 5, Madras General Clauses Act, the latter date, i. e., 12th March 1947 should be taken as the date of the commencement of the Act. In this view, therefore, the notification of 27th February 1948 extending the Act for one year from 12th March 1948 leaves no interval when the Act was not in force.

6. We shall now deal with the main question whether it was competent to the Provincial Legislature to delegate to the Provincial Government the power to extend the life of the Act by notification. It may not be out of place at this stage to recapitulate and set out the gist of the decisions of the Judicial Committee which have considered the position of the Legislatures created under a written Constitution, particularly the Indian Legislature and the Colonial Legislatures. Such Legislatures are created by Statutes, Orders in Council, or Letters Patent. The power to legislate and its limits are defined by the Constitution. They are in no sense agents of the British Parliament which created them, and the principle of delegata potestas non potest delegate is inapplicable to them. Within the limits pre-scribed by the statute, they have sovereign and plenary powers of legislation of the same nature as the British Parliament. The authority creating them also fixes the limits of the field of legislation within which they possess plenary powers. The area is no doubt restricted but within the area their powers are unrestricted. In Empress v. Burah, 4 Cal. 172 ; 5 I. A. 178 P. C., which is the leading case on the subject, Lord Selbourne L. C. described the position at p. 180 as follows:

'. . . their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and, by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of justice to inquire further, or to enlarge constructively those conditions and restrictions.'

7. In Hodge v. The Queen, (1884) 9 A. C. 117 : 53 L. J. P. C. 1, Lord Fitzgerald dealing with the British North America Act said as follows :

'It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters enumerated in Section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by Section 92 as the Imperial Parliament In the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation, authority to make by-laws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect.'

These two cases said Sir Robert P. Collier in Powell v. Apollo Candle Co., (1885) 10 A. C. 288 : 54 L. J. P. C. 7;

'have put an end 'to a doctrine which appears at one time to have had some currency, that a Colonial Legislature is a delegate of the Imperial Legislature. It is a Legislature restricted in the area of its powers, but within that area unrestricted, and not acting as an agent . . .'

The British Parliament stands in a superior position as its powers are not circumscribed or limited by any written constitution. Its sovereignty is absolute and it may enact any legislation of its choice.

8. The British Parliament has unrestricted power of delegation. It may enact conditional legislation or may entrust to subordinate bodies the power to make by-laws or regulations in pursuance of an Act of Parliament which lays down the limits of such subordinate legislation. It can itself create legislatures and endow them with capacity or the power to legislate, define the area and also prescribe the limits of that area. The position, however, of the Indian Legislatures and of Colonial Legislatures is entirely different. In the United States of America the power of delegation is further complicated by two principles, one the tripartite division of the powers of the Government into executive, legislative and judicial, and the implied restriction of the power of one department of the Government to delegate its functions to the other. It is a principle inherent in the American Constitutional system that unless expressly provided the Legislature cannot exercise either executive or judicial powers and an executive in its turn cannot exercise either legislative or judicial powers, and the judiciary is equally prohibited from exercising either executive or legislative powers. This strict division of the powers under the American Constitution has resulted in the view that no delegation is possible but the modern tendency seems to be not to adhere to the strict view, as it is not possible for a legislature to enact laws providing for all contingencies and laying down rules so as to cover all details regarding the enforcement of particular Acts. Crawford on Statutory Construction referring to this division of powers under the American Constitution observes at p. 13:

'It is, therefore, apparent that the division of Governmental powers into the legislative, the executive, and the judicial is an abstract and general division and probably was never intended to be strictly adhered to in actual operation. Nor does it mean, from a practical standpoint, that they must remain completely separate and distinct with no connecting link. All three departments derive their authority from the same source and, although their powers differ, they represent the sovereignty in equal degree. They are co-ordinated departments of the Government, and as such are politically connected. They are mutually dependent and could not exist without the assistance of each other, for one makes the laws, another executes them, and the other expounds them. Yet, the functions and the powers are not blended, although sometimes the powers theoretically belonging to one department are exercised by another either at the express direction of law or incidentally as a means of exercising the power properly within its own domain. Each department must perform the duties assigned to it, and should not exercise those powers properly belonging to either of the other departments. And the powers properly belonging to each department are to be determined by a consideration of the language and intent of the constitution, together with history, the nature of powers, limitations and purposes of Government.'

The other principle underlying the American Constitution is that the powers of the Government are considered to have their source in the authority of the people of the United States, and that the Legislature was the agent of the people and therefore, under a disability to delegate power confided to it to another authority on the principle of delegata potestas non potest delegare. These two principles however, have no application to either the Indian Legislatures or the Colonial Legislatures, as it has now been authoritatively settled by the Privy Council in the decisions already referred to that such Legislatures are not delegates of the Parliament and have plenary powers of legislation within the appointed limits.

9. The power of delegation, however, is recognised, but the question is, what are the limits of such delegation? As the Legislative power of; a Government is vested in the Legislature under the Constitution Act it is not open to the Legislature to surrender or abdicate that power or delegate it to another authority whether it is the executive Government or some other body. But a Legislature is authorised to delegate a power which is non legislative in character. Sometimes the delegated power may be in the nature of conditional legislation authorising an authority such as the executive to determine the time of the commencement of an act and the area of its application after determining, if necessary, certain facts. It may also entrust the power of extending the Act to other matters not enumerated in the Act itself. In other cases, the Legislature entrusts to the subordinate bodies the power of making by-laws and regulations so as to carry out into execution the Act in which the principles and the policy of the Legislature have been laid down with precision. In other words, the Legislature by the Act passed by it lays down general principles and the policy, leaving out details to be filled in by regulations or rules by the Executive Government or some other authority. This form of legislation is described by some text-writers as subordinate legislation and is very often resorted to by Legislatures. The reason is that the Legislature have no time or the aptitude to consider and enact rules relating to the various details having regard to the complex nature of the administration and social life. The difficulty however, is to draw the line between a legislative power and a non-legislative power. So far as we are aware, no authority has attempted to draw the line of demarcation, and all that is done is to state a number of principles by which the legality of delegation by a Legislature is to be determined. The application of these principles, it must be admitted, is not very easy. All that can be said is, as stated by Crawford on Statutory Construction at p. 25 :

'As a general rule, it would seem to be the nature of the power rather than the manner in which it is exercised by the administrative officer, which determines whether the delegation is lawful.'

Another principle which is very often quoted from an American decision is :

'The true distinction, therefore, is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.'

Conditional legislation of the kind dealt with by the Privy Council in Empress v. Burah, 4 cal. 172 : 5 I. A. 178 is considered to fall within the latter category, and it has been uniformly held that such a kind of delegation is valid. The attempt on the part of the learned Advocate-General is to bring the present case within the principle of the above decision, and the other cases which have applied that principle. In Empress v. Burah, 4 Cal. 172 : 5 I. A. 178 the Privy Council had to deal with Act XXII [22] of 1867 passed by the Indian Legislature. The Act purported to remove Garo Hills from the jurisdiction of the ordinary civil and criminal Courts and to vest the civil and criminal administration of justice in the said territory in officers to be appointed by the Lieutenant Governor of Bengal. The Lieutenant Governor of Bengal was authorised by notification in the Calcutta. Gazette to determine the time when the Act should come into operation in respect of the Garo Hills. The 9th section of the Act empowered the Lieutenant Governor from time to time by notification in the Calcutta Gazette to extend the provisions of the Act to the Jaintia Hills, the Naga Hills and portions of the Khasia Hills. This delegation of the power to the Lieutenant Governor to determine the time of the commencement of the Act and also to extend its operation to other areas was questioned in the case. The High Court was of opinion that the delegation was bad, as it was delegation of a legislative power which offended also against the principle that an agent could not delegate his powers. It was pointed out by the Privy Council that it was not open to the Governor-General-in-Council to create a new Legislature and arm it with legislative authority not authorised by the Councils Act. Lord Selbourne L. C. overruled the objection and upset the view of the High Court as it was not a legislative power that was delegated to the Lieutenant Governor. The Lord Chancellor observed at page 182 :

'Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General-in Council. Their whole operation is directly and immediately, under and by virtue of this Act, XXII [22] of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and in many circumstances it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which, it from time to time conferred. It certainly used no-words to exclude it. Many important instances of such legislation in India are mentioned in the opinions of the Chief Justice of Bengal, and of the other two learned Judges who agreed with him in this case. Among them are the great Codes of Civil and of Criminal Procedure. . . . .'

From this it follows that when a legislation is complete in the sense that the Legislature had exercised its will and its judgment regarding all matters such as the place, the person or the laws and the powers but merely entrusted to some other authority the power of determining the time of the commencement of the Act and the place or places to which it should be applied it is not delegation of a legislative power at all and really falls within the category of non-legislative powers, and therefore, such delegation is permissible.

10. There are other instances of conditional legislation which have been upheld by the Privy Council and which have been brought to our notice by the learned Advocate-General. In Russel v. The Queen, (1882) 7 A. C. 829 : 51 L. J. P. C. 77 the validity. of the Canada Temperance Act, 1878 was questioned. The Parliament of Canada passed the Canada Temperance Act, 1878 with the object of promoting temperance in the Dominion and introducing uniform legislation in all the provinces respecting the traffic in intoxicating liquors. The Act was divided into three parts, and the second part contained the prohibitory enactments. A machinery was provided under the Act by which the second part of the Act could be brought into force in any country or city by the Governor-General-in-Council by a proclamation published in the Gazette declaring that the second part of the Act shall be in force and take effect in such country or city. This method of bringing into force the Act was questioned on the ground that it was delegation of a legislative power and therefore, invalid. The answer to this objection given by the Privy Council is at p. 836 :

'The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many oases convenient, and is certainly not unusual, and the power 60 to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency. Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of the Queen v. Burah, 4 Cal. 172 : 3 A. C. 889: 5 I. A. 178, lately before this Board.'

In Hodge v. The Queen, (1884) 9 A. C. 117 : 53 L.J. P. C. 1, the power of a local Legislature to entrust to a Board of Commissioners under the Liquor License Act of 1877 authority to enact regulations was upheld, as they were intended to carry out the object of the Act into operation. In Powell v. Apollo Candle Co., (1885) 10 A. C. 282 : 54 L. J. P. C. 7 under Section 133, New South Wales Customs Regulation Act of 1879 the Governor was authorised to levy a duty on certain articles. This delegation was question-ed as being illegal. Applying the principle of the earlier decisions already referred to, the section was held valid.

11. Recently the question came up for examination before the Federal Court and the Privy Council in Benoari Lall Sarma's case which related to the Special Criminal Courts Ordinance, 1942 (II [2] of 1942). The decision of the High Court and the Federal Court is to be found in Emperor v. Benoari Lall Sarma and of the Privy Council in Emperor v. Benoari Lal Sarma . Under the Ordinance, three kinds of criminal Courts were constituted, Special Judges, Special Magistrates and Summary Courts. A Special Judge could be authorised to try such offences or class of offences or such cases or class of cases as the Provincial Government or a servant of the Crown empower, ed by the Provincial Government in this behalf, may, by general or special order in writing, direct. A similar power was conferred upon the Provincial Government or the servant of the Crown empowered by the Provincial Government to decide and direct what offences should be tried by a Special Magistrate under Section 26. Ordinance appeals from orders from sentences of Courts constituted under the Ordinance were taken away from the jurisdiction of the ordinary Courts constituted under the Criminal Procedure Code, and the jurisdiction even of the High Court was bar-red to entertain either an appeal or revision. Apart from other questions which were raised regarding the validity of this Ordinance the one question which is relevant for the purpose of this discussion is whether the delegation of the power to determine the nature of the offences or classes of offences and cases or classes of cases by the Special Judge or Special Magistrate, to the Provincial Government or the servant of the Crown was valid. The High Court as well as the Federal Court took the view that as the delegation was too general, it was invalid. The Officiating Chief Justice, Varadachariar, in an exhaustive judgment examined the limits of the doctrine of delegation of powers by a Legislature and considered the relevant decisions on the point. The argument on behalf of the Crown was that it was a conditional legislation and not a delegation of legislative power which might be justified by the decisions of the Judicial Committee in Empress v. Burah, 4 Cal 172: 5 I. A. 178 P. C., Hodge v. The Queen, (1884) 9 A. C. 117: 53 L.J. P. C. 1 and Powell v. Apollo Candle Co., (1885) 10 A. C. 282 : 54 L. J. P. C. 7. The test laid down in an American case that:

'the distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution to be exercised under or in pursuance of the law'

was accepted as correctly laying down the distinction. The Legislature in conferring however authority or discretion upon a body regarding the execution of the law into effect, it was pointed out, should not make it too general almost amounting to issue of a blank cheque to the authority; but the Legislature must lay down the main principles and the policy leaving details to be filled in by the subordinate agency. Applying this test, it was held by the Federal Court that the delegation of the Ordinance amounted to an abdication or surrender of the power of the Legislature -- the Ordinance-making power of the Governor-General being co-extensive with the power of the Legislature to enact laws. This view of the provisions of the Ordinance was not accepted by the Privy Council, The difference between the Privy Council and the Federal Court was not due to any difference regarding the principles applicable but the application of the principles themselves. This case illustrates the difficulty in applying accepted principles for determination of the validity of a delegation of a power by a Legislature in a given case. The Federal Court thought that the delegation was bad, as the language of the provisions of the Ordinance and the authority conferred were very wide, while the Judicial Committee was of opinion that it was in the nature of a conditional legislation. Viscount Simon L. C., who delivered the judgment of the Board in that case dealing with this question observed at p. 66, King-Emperor v. Benoari Lal Sarma .

'The second objection has attracted more support, but is, in their Lordships' opinion, equally unfounded. It is undoubtedly true that the Governor-General acting under Section 72 of Schedule 9 must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already pointed out, in view of the proclamation under Section 102, had power to make laws for a Province even in respect of matters which would otherwise be reserved to the Provincial Legislature. Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor-General's Ordinance taking the form that the actual setting up of a special Court under the terms of the ordinance should take place at the time and within the limits judged to be necessary by the Provincial Government specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provisions of a Statute is determined by the judgment of a local administrative body as to its necessity. Their Lordships are in entire agreement with the views of the Chief Justice of Bengal and of Khundkar J. on this part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well-known decision in Russel v. The queen, (1882) 7 A. C. 829: 51 L. J. P. C. 77 (the italics are ours).

These decisions are sufficient in our opinion to illustrate the essence of conditional legislation, which is not delegated legislation nor delegation of a legislative power. It may not however be out of place to refer to one other decision of the High Court of Australia, Baxter v. Ahway, 8 Com. L. R. 626 on which strong reliance was placed by the learned Advocate-General. Under the Customs Act of 1901 of Australia, certain imports were prohibited by the Act and such prohibited imports were enumerated in Section 52 of the Act and by Clause (g) of that section the Governor-General was empowered to prohibit the importation of other goods. In exercise of this power the Governor-General in Council of Australia issued a proclamation on 29th December 1905 prohibiting the importation of opium suitable for smoking. The objection taken was that the power to prohibit the importation of opium was a power that should be exercised by the Legislature and could not be delegated to the Governor-General in council. The delegation was upheld on the ground that it was not delegation of a legislative power but conditional legislation, and wag within the powers conferred on the Parliament by the Constitution. In arriving at this conclusion the High Court relied upon the decision in Empress v. Burah, 4 Cal. 172 : 5 I. A. 178 P. C. and the cases that followed it. The remarks of O'Connor J. at pp. 636, 637 and 638 of the Report are of considerable assistance in distinguishing between delegation of a legislative power and conditional legislation. In the case of conditional legislation the whole of the law which operates is to be found in the statute itself except as in that particular case the naming of the article to which the provisions ought to be applied. 'It is a fundamental principle of the Constitution,' says the learned Judge at p. 637, 'that everything necessary to the exercise of a power is included in the grant of a power. Everything necessary to the effective exercise of a power of legislation must, therefore, be taken to be conferred by the Constitution with that power. Now the Legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, therefore, legislation from the very earliest times, and particularly in more modern times, has taken the form of the conditional legislation, leaving it to some specified authority, to deter, mine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied. In the case of Field v. Clark, 143 under Section 649, which was cited to us by Mr. Lamb in the course of his argument, there is a passage which has a direct bearing upon this aspect of the power of the legislature. In delivering the judgment of the Court, Harlan J. said, quoting from another case, Moure v. City of Reading, 21 Pa. S. R. 188:

'Half the Statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law. So in Locke's appeal, 72 Pa. S. R. 491. To assert that a law is less than a law, because it is made to depend upon a future event or act, is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to full; know. The proper distinction the Court said was this; 'The legislature cannot delegate its power to make a law; bat it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside the halls of legislation'.'

This decision in our opinion brings out clearly the distinction between delegation of a power to make a law and the delegation of a power to apply a law if certain circumstances exist. The question is whether the power conferred upon the Provincial Government to extend the duration of the Act by Section 1 (4), Madras Maintenance of Public Order Act, 1947, falls under the former category or the latter.

12. Acts may be classified with reference to their duration into permanent or perpetual Acts and temporary Acts. A perpetual Act is of unlimited duration and continues in force forever unless repealed or altered while a temporary Act continues in force during a fixed period or until repealed or altered earlier. It is for the Legislature to determine whether an Act should be perpetual or only of temporary duration. The period of the life of an Act is therefore determined by the exercise of the legislative will and is a legislative power. It is not analogous to the power of applying a legislation which is already complete to particular areas or particular class of persons or goods or even of determining the time of its commencement or the amount of its operation. Conditional legislation, as the decisions already referred to show, is of the latter description. After the expiration of the period fixed for the operation of temporary Act, the Act automatically comes to an end. There is no analogy between conditional legislation which authorises an outside authority to determine the commencement or termination of an Act and the power to determine the life of an Act itself. No doubt in the case of conditional legislation, until the condition is determined-or is fulfilled, the law may be in a state of suspended animation but still it is law but needs its application to be determined by an extraneous authority. The power of extending the life of an Act is really a power to bring the Act itself into existence for a farther period and if not so brought would cease to be law. It is therefore difficult to accept the contention of the learned Advocate-General that a bare power to extend an Act is, in the nature of conditional legislation and is valid. Of course the word 'extend' is capable of more than one meaning. If it is merely a question of extending the operation of the Act already complete and alive, to other persons or goods or even to other areas not already specified in the Act itself the argument of the learned Advocate-General on the authorities is perfectly sound. But if by 'extend' is meant to extend the life of the Act itself and to prolong its duration it is a different matter and cannot be treated on the same footing as conditional legislation. The legislature it is, that is charged with the duty of taking into consideration the circumstances existing at the time of enacting a law, whether the law should continue in operation only for a short duration or should be perpetual. At each time that the legislature thinks it fit to continue the life of an Act it must exercise its mind taking into consideration the circumstances and the situation at the time in order to decide whether there is or is not justification for extending the provisions of the Act particularly so in a case where the liberty of a subject is concerned and the effect of the Act is to curtail that liberty without recourse to a judicial determination by ordinary tribunals of the question whether a proper case for depriving a subject of his liberty is made out or not. Such a power cannot be delegated. The power, of ex-tending the life of an Act in our opinion, is clearly legislative power, and its delegation in the present case to the Provincial Government, namely, the executive, is not warranted by any of the principles known to Constitutional law.

13. The question in our opinion is really concluded by the decision of the Federal Court. We thought it fit to consider the question in the light of the authorities placed before us by the learned Advocate-General, as he contended that the decision of the Federal Court was not directly in point and that in any event the observations in some of the judgments were mere obiter. We do not however read the judgment of the Federal Court in the manner contended by the learned Advocate-General. We think it is a direct decision on the point, and the majority of the Judges are clearly of opinion that even a bare power to extend the life of an Act with or without modification, is a legislative power which could not be delegated. The judgment of the Federal Court is Jatindranath Gupta v. Province of Bihar . It relates to the Bihar Maintenance of Public Order Act, 1947. The detention orders in question were made in January and February 1949, and the detenues were residents of Chhota Nagpur Division of the Province of Bihar, which is a partially excluded area governed by the provisions of Section 92, Constitution Act. Under that section the Governor has a two-fold power of legislation. Under Clause (1) of the section an Act of the Dominion Legislature or of the Provincial Legislature will not apply to an excluded area or a partially excluded area, unless the Governor by public notification extends the application of the Act with such exceptions or modifications as he may think fit to make. This power of extending Acts already passed by the Dominion Legislature or the Provincial Legislature is admittedly a legislative power. It was so decided also in Chatturam v. Commissioner of Income-tax, Bihar, 1947 F. C. R. 116: A. I. R. 1947 F. C. 32. Under Sub-clause (2) the Governor himself is empowered to make regulations for the peace and good Government of any excluded area or of partially excluded area in a Province, and by such regulations he is authorised even to repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature of any existing law applicable for the time being to the area in question but subject to the condition that such regulations are forthwith submitted to the Governor General and assented to by him before they become operative. This is undoubtedly a plenary power of legislation vested in the Governor of the Provinces. The Bihar Legislature passed the Bihar Maintenance of Public Order Act, 1947, which came into force on 16th March 1947, and its operation was limited to one year from the date of its commencement by Section 1 (3) of the Act. There is a proviso to that section viz.:

'the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification.'

As the Act could not by its own force have operation in Chhota Nagpur Division the Governor of Bihar issued a notification on 16th March 1947, in exercise of the power vested in him under Section 92 (1), Constitution Act directing that the Act should apply to Chhota Nagpur Division. The life of the Act was extended on 11th March 1948, for a further period of one year from 16th March 1948, by the Provincial Government acting under the power conferred upon it under the proviso, after obtaining the sanction of the Bihar Legislative Assembly by a resolution passed by it. The Governor did not issue a fresh notification after the life of the Act was extended directing the application of the extended Act to Chhota Nagpur. On 7th March 1949, however the Governor of Bihar issued a notification under Section 92 (1), Constitution Act directing that the said Bihar Maintenance of Public Order Act shall apply and shall always be deemed to have applied to the Chhota Nagpur Division. The Bihar Legislature passed an amending Act, Act V [5] of 1949, on 15th March 1949, by which for the words ''for the period of one year from the date of its commencement' occuring in Sub-section (3), of Section 1, Bihar Maintenance of Public Order Act, 1947, the words and figures 'till the 31st March 1960' were substituted. On 12th March 1949, a notification was published by the Governor acting under Section 92 (1) Government of India Act directing that the Bihar Act, V [5] of 1949 shall apply to the Chhota Nagpur Division. The appellants were arrested at a time when there was no notification applying the extended; Act to Chhota Nagpur division the previous notification having already expired. The detentions-were questioned on the ground that the Provincial Government had no power to extend the life of the Act, and the delegation contained in the proviso to Section 1 (3) of the Act was unauthorised. There was an alternative contention that in any event as there was no notification applying the-extended Act to the Chhota Nagpur division, the detentions were illegal even on that ground. Fazl Ali J. dissented from the opinion of the majority and upheld the orders of detention. Patanjali Sastri J., based his decision on the narrower ground that in the absence of a further notification by the Governor there was no Act in force justifying the orders of detention. The Governor in the exercise of his legislative power under Section 92 (1) according to the learned Judge had no power to delegate legislative power of extending the duration of the Act to the Provincial Government. The amending Act, V [5] of 1949 was of no avail to sustain the detentions, as the original Act ceased to have any operation in Chhota Nagpur at the time it was applied by notification of the Governor to that Division. The other learned Judges, the Chief Justice of India, Mahajan and Mukherjea JJ., considered the larger question and were unanimous in holding that the orders of detention were not justified.

14. It will be observed that under the proviso there in question, the power of continuing the Act was vested in the Provincial Government, and required a resolution of the Bihar Legislative Assembly and the Bihar Legislative Council. It also vested in the Provincial Government a power to modify the Act if necessary, besides extending the period for one more year. The argument of the learned Advocate-General is that the three learned Judges, were not considering the bare power of extending the duration of the Act but were considering that power coupled with a power to modify, and that therefore the decision is not authority on the question with which we are now concerned. We do not agree with this contention. No doubt, in that case there was also a power to modify, but the judgments of the three learned Judges contain a clear expression of opinion that even a bare power to extend the life of an Act is also a legislative power, the delegation of which is not permissible, and that it is not in the nature. of conditional legislation. The learned Chief Justice at page 230 of the Report deals with this contention. He observes:

'In my opinion, the contention of the appellants on this point is correct. The proviso contains the power to extend the Act for a period of one year, with modifications, if any. It is one power and not two severable powers. The fact that no modifications wore made in the Act when the power was exercised cannot help in determining the true nature of the power. The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body.' (The italics are ours).

The sentence in italics contains clear expression of opinion that the power to extend the duration of an Act beyond one year is a legislative power. The learned Judge continues:

'The power to modify an Act of a legislature, without any limitation on the extent of the power of modification, is undoubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only. It seems to me therefore that the power contained in the proviso is legislative. Even keeping apart the power to modify the Act, I am unable to construe the proviso worded as it is, as conditional legislation by the Provincial Government. Section 1 (3) and the proviso read together cannot be properly interpreted to mean that the legislature of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority, which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it shall be extended for a period of one year by the Provincial Government on a resolution passed by the two Chambers. I also think that on a true construction of the proviso this power of legislation to extend the life of the Act beyond the first year is not left in the legislative body established by the Government of India Act for the Province, but in a different body. For the extension of the Act beyond the first year, the consent of the Governor of the Province is not required under the proviso. While Section 69, Constitution Act, makes the Governor an essential part of the Government of the Province in performing its legislative functions, the procedure laid down for the extension of the Act beyond the first year is also different from the procedure prescribed under Section 78 etc. of the Constitution Act. Applying the principles laid down by the Judicial Committee of the Privy Council in The Queen v. Burah, 4 Cal. 172 : 5 I. A. 178 P. C. and Russell v. The Queen, (1882) 7 A. C. 829:51 L.J.P.C. 77, I do not think the extension of the Act beyond the first year by the notifications can escape being classed as a delegated legislation. It is not and cannot be disputed that delegated legislation will be ultra vires.'

To our mind in the passages underlined (here italicised) the learned Chief Justice in unequivocal terms lays down that a bare power of extension of the life of an Act is a legislative power and that it should not be entrusted to an outside body.

15. Patanjali Sastri J. also considers that in his opinion the discretion vested by the proviso in the Provincial Government and the two Chambers of the Provincial Legislature to prolong the duration of the Act for a further period of one year with such modification as they may have thought fit, is a legislative power, and not a matter of mere administrative discretion. No doubt the learned Judge considers the power of extending along with the power of modification, and therefore this may not be treated as authority for the view that a power of extending the duration without more is a legislative power. But in considering the power of the Governor to delegate in advance the power of extending the duration of the Act to the partially excluded areas he expresses the opinion at p. 235 as abdication of his function in that regard :

'Such a shifting of the burden of his responsibility could not have been contemplated by Section 92 (1), Government of India Act. It follows that the application of the first proviso to Section 1, Sub-section (3) of the Act to Chhota Nagpur by the notification No, 900, dated 16th March 1947, was unconstitutional and assuming, without deciding, that the enactment of the proviso by the Provincial Legislature was intra vires, and the notification issued by the Provincial Government on 11th March 1948, under that proviso was effective to extend the duration of the Act for one more year, a fresh notification by the Governor was necessary to bring the extended Act into force in Chhota Nagpur, and in the absence of such notification the arrest and detention of the appellant must be held to be unauthorised and illegal.'

Of coarse this passage is not direct authority on the point now under consideration; but however it throws light on the question in so far as the learned Judge holds that the delegation even by the Governor of such a power, who had the right to exercise legislative power under Section 92(1) of the Act is unconstitutional.

16. Mahajan J. at p. 239 pointed out the distinction between delegation of power to make the law and conditional legislation in the following passage:

'Distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. In cases of conditional legislation, on fulfilment of the condition the legislation becomes absolute. But in oases of delegated legislation, the delegate has to take a decision whether that legislation is to continue or has to be modified, amended or varied.

The proviso which has been assailed in this ease, judged on the above test, comes within the ambit of delegated legislation and is thus an improper piece of legislation and void. To my mind, it not only amounts to abdication of legislative authority by the Provincial Legislature. It goes further and amounts to setting up a parallel legislature for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year.'

Later on, he observes :

'Nothing is here being done in pursuance of any law, What is being delegated is the power to determine whether a law shall be in force after its normal life has ended and if so, what that law will be, whether that what was originally enacted or something different. The body appointed as a delegate for declaring whether a penal Act of this character shall have longer life than originally contemplated by the legislature and if so, with what modification, is a new kind of legislature than entrusted with the duty under the Government of India Act, 1935. . . . . I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of Section 1 (3) also amounts to an Act of legislation and does not fall under the rule laid down in The Queen v. Burah, 4 Cal. 172: 5 I. A. 178 P. C. . The Act in a mandatory form stated that it shall be in force for one year only. That being so, the power given in the proviso to re-enact it for another year is legislative power and does not amount to conditional legislation. In letter and in spirit this proviso gives the impression that the Bihar Legislature for reasons best known to itself wanted to retain the power of saying that the law shall continue for another year with such modifications as it think fit, but that it did not want to meet as a Legislature with its necessary safeguards but wanted to do so by a resolution. The Legislature in doing so acted beyond the powers conferred on it by the Act of Parliament.'

Mukherjea J. after considering the decisions in the Queen v. Burah, 4 Cal. 172 : 5 I. A. 178 P. C.; Russel v. Queen, (1832) 7 A. C. 829 : 51 L. J. P. C. 77 and King-Emperor v. Benoarilal expressed his opinion at p. 250 as follows :

'In my opinion, the validity of the proviso to Section 1 (3), Bihar Maintenance of Public Order Act cannot be upheld on the ground of its being a piece of contingent legislation. It cannot also be supported on the ground that what it delegates is a mere non-legislative function. The duration of a statute is a matter for determination by the Legislature itself. From the language of Sub-section (3) of Section 1 and that of the proviso, it is difficult to say that the Legislature fixed the duration of the Act at two years from the date of the commencement and left it to the Provincial Government to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year more. If that was the real intention of the Legislature, it might have been argued that it was a piece, of conditional legislation only. That this was not the intention of the Legislature is, however, clear from the fact that the Provincial Government is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not.'

In view of these clear expressions of opinion by the highest judicial tribunal of the land it is impossible to hold that the question raised in these applications regarding the validity of the power of extension conferred upon the executive of this Province by Section 1 (4) of the Act is not covered by the majority decision of the Federal Court, and that the provision in Section 1 (4) of the Act is valid.

17. After the decision of the Federal Court the same question was considered by the Calcutta High Court in Badal Bose v. Chief Secretary to Government, West Bengal. 53 C. W. N. 728, a case under the West Bengal Security Act, 1948. Section 1 (4) of that Act which provided for the duration of the Bengal Act was in these terms:

'It shall, in the first instance, remain in force for a period of one year, provided that if a resolution in that behalf is, before the date on which under this Sub-section it would otherwise have ceased to operate, passed by the Provincial Legislature, it shall continue in force for a further period of one year from such date.'

Under this proviso there is no power of modification but only a power to extend the duration. Applying the decision of the Federal Court Harries C. J. and Mitter J. held that Provincial Legislature had no authority to continue the Act by a resolution. This case is concerned with a bare power of extension and is on all fours with the case now before us. The decision of the learned Judges is based mostly on an interpretation of the judgment of the Federal Court, and for the reasons already stated we are also of opinion that the decision of the Federal Court covers the point and that it is binding on us. In. the two cases, there is at least a requirement that a resolution of the Provincial Legislature was necessary before extending the life of the Act, Under the Madras Act, there is not even this safeguard. The Provincial Government had no duty at all to ascertain the opinion of the Legislature, and not even such safeguard is provided under the Madras Act. We do not by this mean that the delegation would have been valid, if such provision were made. All that we intend to point out is that the delegation in the present case is more absolute than in the two cases, in the sense that there is no obligation on the part of the Provincial Government to obtain the wishes of the Legislature on the advisability of extending the duration of the Act. From this it follows that the Madras Maintenance of Public Order Act, 1947, ceased to have operation and died a natural death on 11th March 1948.

18. Relying upon the hypothetical case suggested by Mukherjee J. in the passage already cited from the judgment of the Federal Court, the learned Advocate-General contended that upon a true interpretation of Section 1 (4) of the Act, the Legislature fixed the duration of the Act at two years from its commencement, and gave discretion to the Provincial Government to determine at the end of one year whether the Act should continue in operation for one more year or not. If that was the intention of the Legislature, it is argued that it is a piece of conditional legislation as stated by Mukherjee J. at p. 261. The language in our opinion of Section 1 (4) of the Act does not admit of any doubt that it was not originally intended to be in force for a period of two years. The Sub-section expressly says that the Act shall remain in force for a period of one year and that the Provincial Government may extend the Act from time to time by notification for a further period or periods not exceeding one year. The discretion given to the Provincial Government is clearly to extend the operation of the Act by another year, after the first year had elapsed, and the intention is not to fix the period of duration as two years in the first instance. The expression 'upon the expiry of this Act' occurring in the last part of the Sub-section is emphasised as having reference to the period of two years; but this, in our opinion, is a far-fetched construction of the Sub-section. The Act expires at the end of the one year, if it is not continued for a further period. If it is continued, of course, it expires at the end of two years. Therefore there were two possible periods contemplated by the Legislature when the Act might expire either at the end of the first year or if extended, at the end of the second year. The expression 'expiry' therefore does not indicate expiry only at the end of a period of two years. The illustration suggested in the judgment of Mukherjee J. has therefore no application, and we cannot accept the argument of the learned Advocate-General on this point.

19. We may also refer to two decisions of the Allahabad High Court both of single Judges, which have taken the contrary view. One of the decisions, Gaurinandan v. Rex : AIR1948All414 was referred to in the judgment of the Federal Court; but as no definite opinion was expressed by the learned Judges on the correctness of that decision it was urged on behalf of the Government by the learned Advocate-General that that decision must be treated as laying down the law correctly. Another decision is Hariharanand. v. Superintendent, Central Jail, Benares, A. I. R. 3948 ALL. 485 : 3948 Cri. L. J. 740 which follows the earlier decision at p. 414. We have given sufficient reasons in the course of this judgment to show that the view contained in these two judgments cannot be accepted.

20. It remains for us now to consider the validity of the Ordinance which was promulgated by the Governor on 11th August 1949, Madras Ordinance, I [1] of 1949. The power of the Governor to promulgate an Ordinance during the recess of a Legislature is contained in Section 88, Government of India Act as adapted by the India (Provincial Constitution) Order, 1947, the relevant portions of which are as follows :

'If at any time when the Legislature of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances, as the circumstances appear to him to require;

Provided that the Governor shall not, without instructions from the Governor-General, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provisions would under this Act have been invalid unless, having been reserved for the consideration of the Governor-General, it had received assent of the Governor-General.

(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, but every such Ordinance--

(a) shall be laid before the Provincial Legislature and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or, if a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council.'

The rest of the section is not relevant. The assent of the Governor-General has been obtained in pursuance of the proviso to Section 88 (1), Government of India Act, as the preamble of the Ordinance shows. There is a declaration by the Governor in the preamble that the Legislature of the Province was not in session and that he was also satisfied that immediate action was-necessary for the purpose of removing doubts and amending the Act. The Legislature is deemed to be in session till it is prorogued or dissolved. The Governor has the undoubted right to prorogue the Legislature, and in this case it is common ground that it was prorogued on 2nd August 1949. It must be admitted that at the time the Ordinance was promulgated by the Governor the Legislature was not in session, and that condition is therefore satisfied.

21. On behalf of the petitioners an affidavit of one C. V. Rajagopalachari was filed in which, reference is made to a report in the Hindu dated 4th August 1949 that His Excellency the Governor of Madras contemplates to issue an Ordinance with a view to remove certain defects in the Madras Maintenance of Public Order Act, and that as no Ordinance can be issued while the Legislature is in session the Madras Assembly and Council were prorogued with effect from 2nd August by a notification, and the deponent of the affidavit expressed surprise that the Government should have considered proroguing the Legislature only for the purpose of passing an Ordinance. Mr. Mani, the learned advocate for the petitioners in the course of his arguments-urged that the promulgation of the Ordinance by the Governor in exercise of the power under Section 88, Government of India Act is really a fraud on the power, as the Legislature which was in session was purposely prorogued by the Governor with a view to confer upon himself the power of issuing an Ordinance. We think this is an unfounded suggestion for which there is no basis, assuming that fraudulent exercise of the power would vitiate the Ordinance. It is open to His Excellency the Governor to prorogue the legislature at any time he pleases. We do not see anything, wrong in the Governor proroguing the Assembly and the Council with a view to enable himself to issue an Ordinance under Section 88. It is a well-known fact that the legislature, which is democratically constituted, is very slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary, at any rate, when His Excellency the Governor has reasons to believe that immediate action is necessary, it will be more expedient to have resort to the power of issuing an Ordinance under Section 88 rather than approach the Legislature for the necessary legislation. The section itself requires that the Governor should be satisfied that circumstances exist which render it necessary for him to take immediate action. Of this necessity, the Governor is the sole judge. The satisfaction is that of the Governor. It is not open to a Court to canvass and find out whether in fact there could or could not have been the satisfaction. The power of the Governor under this section is analogous to the power of the Governor-General to promulgate Ordinances in case of emergency. It has been repeatedly held both by the Privy Council and High Courts that the Governor-General is the sole Judge for deciding the existence of emergency which justified the issue of an Ordinance. See Benoari Lal Sarma's case and Jnan Prosanna v. Province of West Bengal . It cannot but be admitted that the situation created at or about the time the Ordinance was promulgated was that in view of the two decisions, one of the Federal Court, and the other of the Calcutta High Court, the Government must have felt that the validity of the continuance of the Ordinance by notifications was seriously in doubt, and it was possible that the orders of detention against several persons made under the Act were imperilled. The Governor must have thought that these persons, if set at liberty, might endanger public safety and might make it difficult for Government to maintain public order, as they were all persons who were found to be either acting or about to act in a manner prejudicial to the public safety or the maintenance of public order. In order to avoid such a situation it must have been felt that it was imperative that 'some step should be taken, and the result was the Ordinance, which was issued on the 11th August 1949. It cannot be said that in such circumstances His Excellency the Governor was not justified in exercising his power under Section 88 (1) by issuing the Ordinance.

22. Mr. Mani, the learned advocate for the petitioners, laid emphasis on the preamble and urged that the word 'expedient' did not occur in the section, and the Governor could not seek justification to amend the Act by relying upon expediency. In the subsequent paragraph in the preamble the Ordinance expressly states that the Governor of Madras was satisfied that immediate action was necessary for the purpose of removing doubts and amending the Act. If the condition as to necessity is satisfied, the power to issue the Ordinance follows. The amendment sought to be effected was not introduced, merely because it was expedient though it was given as an additional reason in the preamble; but the basis of the Ordinance is existence of necesity for immediate action in the manner indicated in the Ordinance.

23. The Ordinance introduced three important sections, Sections 2 to 4. It may be now taken as settled law that the Governor's power of making law by Ordinance is analogous and is co-extensive with the power of the Legislature to enact laws subject to two qualifications. One is that the power springs into existence when the Legislature is not in session, and when there is necessity to take immediate action. Secondly, the Ordinance ceases to operate at the expiration of six weeks from the re-assembly of the Legislature, if a resolution disapproving it is not passed by the Legislative. Assembly and agreed to by the Legislative Council earlier. Subject to this, the Governor, under the power to issue Ordinance conferred upon him, is entitled to enact, alter or repeal laws and can even pass retrospective legislation. To what extent under the Ordinance-making power the Governor can pass retroactive legislation is a point on which there is some doubt or difficulty. The Ordinance purports to declare and amend. The declaration is of course with a view to remove doubts. By Section 2 it is declared that the Madras Maintenance of Public Order Act, 1947, hereinafter referred to as the said Act remained in force on and from the 12th day of March 1948 and shall continue to remain in force so long as this ordinance remains in operation and with a view to achieve this object the last part of the section purports to omit Section 1, Sub-section (4). If it merely declared that the Act continued in force the result would have been, the Act, as originally stood, which is to remain in force for a period of one year from its commencement, would have continued in force for a period of one year from 12th March 1947. The mere declaration therefore would not have been sufficient to achieve the object of converting a temporary Act into an Act of unlimited duration. It was therefore necessary to amend the Act by omitting Sub-section (4) of Section 1 altogether.

24. A declaratory Act as pointed out by Craies on Statute Law at p. 60 is defined as

'an act passed to remove doubts existing as to the common law, or the meaning or effect of any statute, Such Acts are usually held to be retrospective.'

An amending Act is not an independent Act but an Act passed with a view to effect an improvement or to more effectively carry out the purpose for which the original law was passed. To remove doubts by a declaratory Act, there should be in existence an Act, the doubts in which have to be removed. If the Act had already ceased to be in force, a declaratory Act would have no operation. An amending Act also presumes the existence of an original Act. If the original Act, which was a temporary Act, terminated after the lapse of time, the amending Act would be inoperative. It has been decided by the Federal Court in the same judgment dealing with the Bihar Maintenance of Public Order Act that the Amending Act, V [5] of 1949 of the Bihar Legislature was of no effect, as the main Act was not in operation in the Province at the time the amending Act was passed. The Chief Justice of India at p. 231 of the Report considered a similar argument and observed:

'Bihar Act V [5] of 1949 is an amending Act. It is not a new Act. It purports only to amend the Bihar Maintenance of Public Order Act, 1947. That Act, which was a temporary Act, as its duration was fixed for one year by the Act itself, came to an end when the first year expired. The result is that when the Bihar Amending Act V [5] of 1949 was passed, there was no Bihar Maintenance of Public Order Act, 1947, in operation in the Province which could be amended and the notification of 18th March 1949 issued in the name of the Governor, could not improve the position.'

With this opinion the majority of the learned Judges concurred. The amending provisions, therefore, of the present Ordinance are of no effect in view of our conclusion that the main Act came to an end when the first year expired. From this point of view, it must be held that unless there is a re-enacting provision in the Ordinance which amounts to a new Act, the declaratory and amending provisions of the Act are not valid. As pointed out in the judgments of the Federal Court, particularly of Mahajan J. at p. 243,

'unless the Act was revived, no amendment made in it could be of any effect. The only apt manner of reviving the expired Act was by enacting a fresh statute or by enacting a statute expressly saying that that Act is herewith revived.'

The same opinion was expressed by Mukherjee J. at p. 256 where he states that,

'it is certainly competent to the Legislature in exercise of its plenary powers to revive or re-enact a legislation which has already expired by lapse of time. The Legislature is also competent to legislate with retrospective effect; but neither of these things seems to have been done in the present case. The Legislature proceeds on the footing that the old Act was alive at the date Then the new Act was passed, and the new Act merely purports to amend one of the provisions of the old Act. Chare could be no amendment of an enactment which a not in existence and from the fact that the Legislature purports to amend an Act, it could not held as a matter of construction that the intention of the Legislature was to renew a dead Act or make a new enactment on the same terms as the old with retrospective effect.'

In the light of these principles, it follows that Section 2, Section 3 (a) and Section 4 which purports to insert a new Section 4-A of the Ordinance are of no effect, as they do not purport to enact or revive a new law but only seek to amend or clear doubts in the old Act.

25. We felt considerable doubt whether the same reasoning would apply to Section 3 (b) which states:

'No action or proceeding taken, no notification issued, no order made, and nothing done, by any authority in accordance with the provisions of the said Act at any time on or after 12th March 1948 shall be questioned on the ground that the said Act was not in force at that time.'

This, in our opinion, is an enacting provision though the opening words of the section state 'For the removal of doubts it is hereby declared' and it retrospectively validates action, proceedings, notifications and orders made under the Act.

26. On a prima facie reading of the clause we at one stage thought that this might apply only to validate the further steps that were taken after 12th March 1918 in respect of orders of detention passed under the original Act before that date. Under the provisions of the Act, it will be noticed that there are various steps which have to be taken by the Government before a final order under Section 3 (5) of the Act is passed. The grounds have to be communicated to the detenu. The matter thereafter should be referred to the Advisory Council which has to send its report to the Provincial Government, and the Provincial Government have to consider the report and pass appropriate orders under Section 3 (5). We have come across cases where orders of detention passed even within the period of one year from the date of the commencement of the Act were not confirmed even chough more than one year had elapsed from the date of the order. If the original order of detention was validly made, but the confirmation was delayed for reasons beyond the control of the Government, we thought that such proceedings taken after the expiry of the Act were intended to be validated by this provision. On a further consideration, however, we are of opinion that there is no reason for putting such a restricted construction upon this clause. No doubt the words 'the said Act' would refer only to the original Act, and the expression 'purporting to Act under the provisions of the said Act' is not used, which are words generally employed in provisions intended to validate irregular or illegal proceedings. But apparently it was assumed that as there was extention of the Act by notification, orders passed even after the lapse of one year from the date of the Act are orders passed in accordance with the provisions of the said Act, because there is no other Act except the original Act of 1947. Further, it clearly refers to Acts, proceedings, notifications, Orders initiated, issued or made at any time on or after 12th March 1948 which is the date on which the Act came to an end, from which it is clear that it is the intention of His Excellency the Governor by this provision to validate all the proceedings. Such power of validation is recognised by Courts in India and the Privy Council.

27. Immediately after the Special Criminal Courts Ordinance, II [2] of 1942 was declared ultra vires by the Federal Court the Governor. General issued Special Criminal Courts (Repeal) Ordinance Xix [19] of 1943 which by Section 3 provided that:

'Any sentence passed by a Special Judge, a Special Magistrate or a summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure, 1898 (V [5] of 1898), by a Sessions Judge, an Assistant Sessions Judge, or a Magistrate of of the First Class respectively, exercising competent jurisdiction under the said Code.'

The validity of this provision was again questioned, and the Calcutta High Court held that it was invalid; but that decision was reversed by the Privy Council in Kumarsing Chhajor v. Emperor . One of the objections raised was that the Ordinance was intended to set at naught the decision of the Federal Court. The Judicial Committee adverting to this contention observed:

'It would require clear language to establish that any legislative authority intended to provide that convictions held to have been illegal by the highest judicial tribunal in the country should, nevertheless, be treated as legal legislative enactment. Their Lordships can find nothing in the language of Section 3, Sub-section 1 of the Ordinance of 1943 to suggest that the Governor-General Intended to do more than to render valid the punishment imposed by the special Courts, leaving the validity of the convictions to rest on judicial decisions.'

and the provision in the Ordinance was upheld. In view of this decision of the highest tribunal it is not necessary to refer to other decisions. The decision in Jnan Prosanna v. Province of West Bengal recognised that it was competent to pass retrospective legislation by an Ordinance. We accordingly hold that Section 3 (b) of the Ordinance is valid and operative.

28. The petitions have now to be heard and disposed of in the light of the observations contained in this judgment, and they will be posted accordingly.