P.B. Mukharji, C.J.
1. These are two appeals, one by the State of West Bengal and the other by the Union of India. The appeals are against the judgment and order of Mr. Justice Sabyasachi Mukharji dated the 18th April, 1972.
2. The learned Judge held that the Central Reserve Police Force Act, 1949, was ultra vires the Government of India Act, 1935, and as such was not law in force within the meaning of Article 372 of the Constitution. He, therefore, directed the two appellants the Governments or rather the Union of India and the State of West Bengal to forbear from giving effect to the Central Reserve Police Force Act, 1949, in West Bengal and further directed them not to enforce the said Act in the State. He issued a writ in the nature of mandamus accordingly and made the Rule absolute. It is against this judgment that the appeals have been filed. Although there are two separate appeals, they are from the same judgment and order. I, therefore, propose to deal with the questions in the appeals in one judgment.
3. The learned Judge also found a point in favour of the respondent No. 1 in these appeals and that is whether he has any locus standi to maintain this application. He held that he had the locus standi. No question, however, has been raised in these two appeals by the State of West Bengal and the Union of India regarding the question of locus standi. The appellants want a decision on the merits of the application and on the main point whether the Central Reserve Police Force Act, 1949, was ultra vires the Government of India Act, 1935 and was not the law enforced within the meaning of Article 372 of the Constitution. I, therefore, will not deal with the point of locus standi in these appeals.
4. The central question in both the appeals is whether the Central Reserve Police Force Act, 1949, is a valid law. The Act was passed by the Constituent Assembly by virtue of Section 8(1) of the Indian Independence Act, 1947. Under Sub-section (2) of Section 8 of the said Act, the Constituent Assembly while exercising the powers of legislation had only the powers that the Federal Legislature had under the Government of India Act, 1935. Under Article 372 of the Constitution, all existing laws in force prior to the Constitution were to continue until repealed, altered or amended by competent legislature or other competent authority. Therefore, in order to be law in force, the said law must have been a valid law validly passed when it was enacted. The core of the question, therefore, is whether the federal legislature had the powers under the Government of India Act, 1935, to enact the Central Reserve Police Force Act, 1949, There is a further Article in the Constitution, namely, Article 372-A of the Constitution which gives power to the President to adopt laws.
5. The provisions of the Government of India Act, 1935, is, therefore, material for this purpose. Section 100 of the Government of India Act, 1935, deals with the subject-matter of Federal and Provincial Laws. It provides :--
'100. (1) Notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List').
(2) Notwithstanding anything in the next succeeding Sub-section, the Federal Legislature, and, subject to the preceding Sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the 'Concurrent Legislative List').
(3) Subject to the two preceding subsections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List').
(4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof'.
6. It is followed by Section 102 of the Government of India Act, 1935, which gives the power to the Federal Legislature to legislate if an emergency is proclaimed to make laws for a province or any part thereof. Section 104 of the Government of India Act, 1935, provides as follows:--
'104. (1) The Governor-General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act, including a law imposing a tax not mentioned in any such list, and the executive authority of the Federation or of the Province, as the case may be, shall extend to the administration of any law so made, unless the Governor-General otherwise directs.
(2) In the discharge of his functions under this section the Governor-General shall act in his discretion.'
7. In other words, Section 104 of the Government of India Act, 1935, gives the residual powers of legislation, either to the Federal Legislature or to the Provincial Legislature.
8. Then, lastly, Section 107 of the Government of India Act, 1935 provides for the inconsistency between the Federal Laws and the Provincial, or the State laws. It provides :--
'107. (1) If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.
(2) Where a Provincial law with respect to one of the matters enumerated inthe Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of his Majesty's pleasure has received the assent of the Governor-General or of his Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter:
Provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved, has received the assent of the Governor-General or of his Maiesty, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion.
(3) If any provision of a law of a Federal State is repugnant to a Federal law which extends to that State, the Federal law, whether passed before or after the law of the State, shall prevail and the law of the State shall, to the extent of the repugnancy, be void'.
9. Section 107 of the Government of India Act, 1935, in other words, deals with Concurrent Legislative List subjects and gives particularly the right of way to the Federal law in case of repugnancy with the State law. The broad idea is that the Indian law or the Federal law shall prevail and the Provincial law shall, to the extent of repugnancy, be void.
10. An examination now of the different entries in the Legislative Lists of the Seventh Schedule of the Government of India Act, 1935, as substituted by the India (Provisional Constitution) Order, 1947, will be necessary. List I of the Seventh Schedule so substituted provides as follows :--
'1. The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion; and armed forces which are not forces of the Dominion but are attached to or operating with any of the armed forces of the Dominion; central intelligence bureau; preventive detention for reasons of State connected with defence or external affairs'.
11. List II is the Provincial list and Entry 1 and Entry 3 of the said List as modified by the India (Provisional Constitution) Order, 1947, are to the following effect:--
'1. Public Order, the administration of justice, constitution and organisation of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with themaintenance of public order; persons subjected to such detention'.
'3. Police, including railway and village police'.
12. List III is the Concurrent List with two parts. Part I and Part II. Entries 1 and 2 in Part I of the said Concurrent List as substituted by the aforesaid India (Provisional Constitution) Order, 1947, read as follows:--
'1. Criminal law, including all matters included in the Indian Penal Code at the date of the passing of this Act but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of his Majesty's naval, military and air forces in aid of the civil power.
2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act'.
13. The question raised in these appeals will depend on the proper interpretation of these Items in the Legislative Lists.
14. The Central Reserve Police Force Act, 1949, came into effect from the 28th December, 1949, after it was passed by the Constituent Assembly acting as the Federal Legislature. It was adopted by the Adaptation of Laws Order, 1950. It was an Act to provide for the constitution and regulation of an armed Central Reserve Police Force. A short history of this piece of legislation may here be recounted. There was 'the Crown Representative's Police Force' which was raised by the late Crown Representative as a reserve force to aid Indian States in the maintenance of law and order in times of emergency. It was retained as the Central Reserve Police Force even after the lapse of paramountcy of the British Crown. The Crown Representative's 'Police Force Law, 1939, was made under the Foreign (Jurisdiction) Order, 1937, to provide for the constitution and regulation of the Force which automatically ceased to have effect from the 15th August, 1947. No actual enactment was made for the regulation and control of this Force by the Government of India after the 15th August, 1947. It is stated in the Gazette of India dated the 17th December, 1949, Pt. V, p. 473, that the objects of the Central Reserve Police Force Act, 1949, are to replace the old Crown Representative's Police Force Law, 1939, and thus provide for the organisation, control and regulation of the Central Reserve Police Force by the Central Government. It was further said in the Objects that for purposes of this Bill, which was later on enacted into the Central Reserve Police Force Act, 1949, this Force falls within the category of 'any other armed forces raised or maintained by the Dominion' mentioned in Paragraph 1 of List 1 of the Seventh Schedule to the Government of India Act, 1935, as adapted. This was in brief the short history of the origin and later on its metamorphosis in the present Act, the Central Reserve Police Force Act, 1949.
15. A short survey of this piece of legislation, the Central Reserve Police Force Act, 1949, is now necessary to indicate the character, nature and purpose of this Act. The preamble to this Act provides for 'the constitution and regulation of an Armed Central Reserve Police Force'. It says in the opening words: 'Whereas it is expedient to provide for the constitution and regulation of an armed Central Reserve Police Force'. Section 1 of the Act describes the title as 'The Central Reserve Police Force Act, 1949'. Section 1(2) describes the extension of this Act and provides : 'It extends to the whole of India and applies to members of the Force, wherever they may be'. Among the definitions provided, there is a definition in 'Section 2(h) which says 'the expressions 'assault', 'criminal force', 'fraudulently', 'reason to believe' and 'voluntarily causing hurt' have the meanings assigned to them respectively in the Indian Penal Code'. Section 3 of the Central Reserve Police Force Act, 1949, provides inter alia as follows :--
'3 (1). There shall continue to be an armed force maintained by the Central Government and called the Central Reserve Police Force'.
The word 'continue' indicates briefly its history. This Section 3 describes it as 'an armed force'. No doubt it was 'an armed force' as Central Reserve Police Force.
16. Continuing with the analysis of the Central Reserve Police Force Act, 1949, the next important section to notice is Section 7 which comes under the heading of 'General duties of members of the Force'. Now, Section 7 of the Act provides as follows :--
'7 (1). It shall be the duty of every member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist.
(2) Every member of the Force shall be liable to serve without and beyond, as well as within, the territory of India'.
17. It is the contention of the respondent in these appeals that this provision virtually and in effect covers thesame field as 'Police' in the exclusive Provincial List. Section 7 of the Central Reserve Police Force Act, 1949, gives the power to execute all orders and warrants lawfully issued, to detect and bring offenders to justice and to apprehend persons. This, it is said, is entirely within the purview of Police.
18. The Superintendence, Control and Administration of the Force are provided for in Section 8 of the Act. Among other things Section 8 provides:--
'The superintendence of, and control over, the Force shall vest in the Central Government; and the Force shall be administered by the Central Government in accordance with the provisions of this Act and of any rules made thereunder through such officers as the Central Government may from time to time appoint in this behalf.'
19. There is another section in the Act which is taken exception to by the respondent in these appeals. That is Section 16 of the Central Reserve Police Force Act, 1949. It makes provisions for powers and duties conferrable and imposable on members of the Force. The material portion of Section 16 of the Act runs as follows :---
'16. (1) The Central Government may, by general or special order, confer or impose upon any member of the Force any of the powers of duties conferred or imposed on a police officer of any class or grade by any law for the time being in force.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may invest the Commandant or an assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the Force and punishable under this Act, or any offence committed by a member of the Force against the person or property of another member.'
There is a proviso to that section which is not material. It is pointed out that Section 16(1) as above stated gives authority to the Central Government to invest the members of the Force with any of the powers and duties conferred on a police officer. Therefore, it was contended by the respondent that this was an unabashed direct onslaught on the Provincial List where under Item 3 of List II the State or the Province has the exclusive power to legislate on Police. Sub-section (2) of Section 16 does not seem to be very material, because it is concerned with members of the Force and not with other persons. Section 16, Sub-section (2) of the Central Reserve Police Force Act relates to offences by a member of this force.
20. The gist of the arguments of the respondent was that the essential functions and duties of police officers under the Police Act of 1861 as well as the members of the Central Reserve Police Force under the Central Reserve Police Force Act, 1949, are identical, namely, (1) to obey and execute all orders and warrants lawfully issued by any competent authority, (2) to detect and bring offenders to justice, and (3) to apprehend all persons whom they are legally authorised to so apprehend and for whose apprehension sufficient grounds exist. All these duties are essential duties, it is contended by the respondent, for the detection and prevention of crime and maintenance of public law and order. Therefore, it was argued by the respondent that both public order and police, being within the exclusive jurisdiction of List II, the Provincial Legislative List, has been violated. The view found favour with the learned Judge. The learned Judge came to the conclusion that in 'pith and substance' the Central Reserve Police Force Act, 1949, was an Act dealing with the subject of police. The learned Judge was obviously impressed by the similarity of the words used in Section 23 of the Police Act of 1861 and Section 7 of the Central Reserve Police Force Act, 1949.
21. There was also a minor argument made on behalf of the respondent that the expenses in connection with Central Reserve Police Force are made on the civil budget. But this, in my opinion, is irrelevant. Question of Central and Provincial Budget is a matter of allocation and does not relate to the vires of the Act.
22. It is now necessary to notice the arguments on behalf of the appellants. Mr. Advocate-General and Mr. Additional Solicitor General appeared on behalf of the appellants before us. Their arguments may be noticed briefly. The appellants submitted that an armed police force was presumably under Entry 1 of List I, Seventh Schedule, of the Government of India Act, 1935. In view of the expression 'any other armed force', it was argued that the constitution of the Central Reserve Police Force was valid. The conferment of powers on that police force was justified on the ground of Entry 1 and Entry 2 of List III of the Government of India Act, 1935, dealing with 'Criminal law' and 'Criminal Procedure'. The appellants submitted that 'Criminal law' and 'Criminal Procedure' were wide enough concepts to include within their ambit the powers given to the Central Reserve Police Force. Reference was made toSections 43, 49-52, 53-56, 58, 59, 62, 64-67, 77-82, 127-132, 148 and 151 of the Code of Criminal Procedure and also to Section 40 of the Indian Penal Code and Section 1 of the Police Act of 1861. An aid in the argument' was availed of on the basis of Section 3(38) of the General Clauses Act. It was the contention of ,the appellants that Section 23 of the Police Act of 1861 was procedural and would be covered by Entry 2 in List III, Seventh Schedule, of the Government of India Act, 1935. Finally it was submitted on behalf of the appellants that the fact that police was a State subject did not prevent the Government of India from maintaining or recruiting the cadre of officers under the Indian Police Service.
23. The learned Judge was unable to accept the arguments of the appellants. With regard to 'Criminal law' he was of the opinion that it meant and included legislation creating new offences or new crimes. But the expression 'Criminal law' does not cover a legislation which does not create any offence or any crime as such. According to the learned Judge, the creation of a Force or a body of men for the prevention and detection of crime does not come within the ambit of the expression 'Criminal law' however liberally and widely that expression might be construed. He came to the conclusion that the Central Reserve Police Force Act, 1949, creates no offence, imposes no obligation as such upon the citizen but only creates an armed body of men to perform the identical functions performable by the members of the Police Force.
24. Mr. Chatterjee for the respondent relied on Blackstone's famous categorisation of Private and Public wrongs -- Blackstone's Commentaries on the Law of England, 16th Edition, London, 1825 --where Blackstone said that 'private wrongs' are no infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are termed 'civil injuries', but where there is a breach or violation of public rights or duties which affects the whole community, considered as a community, such wrongs are described as 'crimes'. This was in addition to his argument that the new crimes created by Sections 9, 10 and 11 of the Central Reserve Police Force Act, 1949, are really limited to the members of the Force and of disciplinary nature.
25. This represents in brief the contentions and submissions made on behalf of both the appellants and the respondent.
26. Various citations were made from the Bar. In Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd., 74 Ind App 23 = (AIR 1947 PC 60) it was laid down that it was not possible to make a clean cut between the powers of the various legislatures and they were bound to overlap from time to time. Hence the origin of the doctrine of 'pith and substance'. That doctrine was evolved in order to find out and ascertain the true nature and character of the impugned legislation. The Privy Council in that case approved the observation of Sir Maurice Gwyer, C. J. of the Federal Court of India in Subrahmanyan Chettiar v. Muttuswami Goundan, 1940 FCR 188 = (AIR 1941 FC 47). In R. M. D. Chamarbaugwalla v. Union of India, : [1957]1SCR930 , the Supreme Court laid down that it was necessary to find out the aim, scope and, object of the impugned Act to determine the question of the validity of that Act. In State of Rajasthan v. G. Chawla, : 1959CriLJ660 , the Supreme Court observed that within limitations the Legislatures in our country possess plenary powers of legislation. These entries in the Legislative Lists, though meant to be mutually exclusive, are sometimes really not so and they occasionally overlap and were to be regarded as enumeratio simplex of broad categories. The Supreme Court also laid down there that it was necessary to examine the language and purpose of the legislation. In Balaji v. Income-tax Officer, : [1961]43ITR393(SC) the Supreme Court observed that the Entries in the Lists were not powers but were only fields of legislation, and that widest import and significance should be given to the language used by Parliament in the various Entries. Again, it was on this line the decision of the Supreme Court in Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, : AIR1962SC1044 proceeded. To the same effect was the decision of the Judicial Committee of the Privy Council in the case of Governor General v. Province of Madras, AIR 1945 PC 98, but it observed that the Lists were made so exhaustive as to leave little or nothing in the residuary field. In the case of C. P. Officers v. K. P. Abdulla and Bros., : [1971]2SCR817 the Supreme Court again reiterated that the Legislative Lists did not merely enunciate powers. It specified a field of legislation and the widest import and significance should be attached to this power to legislate.
27. The other branch of case law that was cited proceeded on the principle of ejusdem generis, how far that doctrine was applicable to constitutional interpretations. The case of State of West Bengal v. S. K. Sirajuddin Batley, : [1954]1SCR378 was cited. But that was on the principle of interpretation of the Indian Independence (Rights, Property and Liabilities) Order, 1947. The Supreme Court view in Smt Lilavati Bai v. State of Bombay, : [1957]1SCR721 was emphasised on behalf of the appellants. The Supreme Court there was construing the words 'or otherwise', and came to the conclusion that far from using those words ejusdem generis with the preceding clauses of the explanation in Section 6 of the Bombay Land Requisition Act, the Legislature used those words in an all inclusive sense. The Supreme Court there laid that the rule of ejusdem generis was intended to be applied where general words had been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. The Supreme Court was emphatic that such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning. Again, in Rajasthan State Electricity Board v. Mohan lal, : (1968)ILLJ257SC the Supreme Court reiterated the view that to invoke the application of the ejusdem generis rule there must- be a distinct genus or category and that where this is lacking the rule cannot apply. In Corpn. of Glasgow v. Glasgow Tramway and Omnibus Company Limited., 1898 AC 631. Earl of Halsbury L. C. speaking on the rule of ejusdem generis with particular reference to specific words used in the statute there observed:
'I should have thought it impossible to qualify or cut them down by their being associated with other words on the principle of their being ejusdem generis with the previous words enumerated. 'Expenses,' I presume, is itself a very general word; but the construction which limits that word would be strange indeed which would strike out the word 'all' and the word 'whatever' from the sentence'.
28. On 'crime', 'criminal law' and 'Criminal Procedure' and the eon-notations of those expressions, Mr. Chatterjee on behalf of the respondent cited the Privy Council decision in Proprietary Articles Trade Association v. Attorney-General of Canada, AIR 1931 PC 94. There Lord Atkin in construing the expression 'Criminal Law' said :--
'Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences ?'
Therefore Mr. Chatterjee upholds the learned Judge's view and argues against the contention of the appellants. Again, Mr. Chatterjee relied on Attorney-General of British Columbia v. Attorney-General of Canada, AIR 1937 PC 91, for the proposition that if there is a pretence, the Central Act should be declared ultra vires. There Lord Atkin observed at page 93 of the report:
'In the present case there seems to be no reason for supposing that the Dominion are using the criminal law as a pretence or pretext or that the legislature is in pith and substance only interfering with civil rights in the Province,' Mr. Chatterjee's argument is that on the pretext of the Central Reserve Police Force the appellants are entrenching on what is Police, an exclusive subject on the State List. Mr. Chatterjee exhausted his Canadian Constitution cases by citing Attorney-General for Ontario v. Attorney-General for the Dominion, 1896 AC 348, which was again concerned with Canada Temperance Act of 1886, and where it was observed by Lord Watson at page 361 of the report:--
'Their Lordships do not doubt that some matters, in their origin, local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada.' Mr. Chatterjee also relied on the Supreme Court decision in A.S. Krishna v. State of Madras,, : 1957CriLJ409 where the Supreme Court after analysing the different provisions in the Constitution and distinguishing the different Items in the Concurrent and Legislative Lists at pages 300 to 301 observed at page 302 :--
'But the overlapping of subject-matter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions. Subjects must still overlap, and where they do, the question must be asked what inpith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial legislation could never effectively be dealt with'.
Then finally the Supreme Court said in that case at page 303 as follows:--
'The position, then, might thus be summed up : When a law is impugned on the ground that is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not'.
29. The learned Additional Solicitor-General cited one case, namely, the case of Archibald G. Hodge v. The Queen, (1883) 9 AC 117, where it emphasised the proposition under the British North America Act, 1867, that subjects which in one aspect and for one purpose fall within Section 92 of the British North America Act, 1867, may in another aspect and for another purpose fall within Section 91 and specially relied on the observation of Sir Barnes Peacock at page 131 of the report where his Lordship said:
'As such they cannot be said to interfere with the general regulation of trade and commerce which belongs to the Dominion Parliament, and do not conflict with the provisions of the Canada Temperance Act, which does not appear to have as yet been locally adopted'.
30. These appeals raise a fundamental question, the question of competition of legislative powers between the States and the Centre, between local Legislatures and Parliament which loom large in constitutional law. In a case of Federation or quasi Federation, the question cannot be avoided and is bound to crop up in diverse ways. Here it does in a very acute form. Obviously 'Police' is an exclusive State subject It is inList II of the State List as 'Police including railway and village police.' It is 'Police' unqualified. This inclusion of railway and village police does not make the connotation of the word 'Police' any the less. It is of the widest possible and imaginable amplitude. By using the word 'Police' in the Central Reserve Police Force Act, 1949, it has invited understandable criticisms. I have given my most anxious consideration to these appeals and the points raised therein. On an anxious consideration, I have come to the conclusion that the Central Reserve Police is not so much police as 'an armed force'. The basic concept is provided in Section 3 of the Central Reserve Police Force Act which opens with the expression: 'There shall continue to be an armed force maintained by the Central Government ...,........'. That itwent further to say that it will be called the Central Reserve Police Force is unfortunate. At the same time, it is not the 'Police' which I emphasise so much as the word 'Reserve'. It is a 'Central Reserve Police Force'. Therefore, not only the word 'Police' but also the word 'Reserve' must have to be emphasised. The word 'Reserve' ordinarily denotes something which is kept in abeyance only to be used in certain special circumstances. One does not use the word 'Reserve' to indicate what is usual and current. Reserve means something apart from regular. For instance the term 'Militia' is applied to that part of the Army Reserve which was formerly called the 'Special Reserve'. Reserve Force means that it can be used in times of emergency and danger when required: Wharton's Law Lexicon, 14th Edition, p. 656 under the head 'Militia'. Then I find that every member of this Force shall be liable to serve without and beyond as well as within the territory of India by virtue of Section 7(2) of the Central Reserve Police Force Act. 1949. Assuming that 'Police' is an exclusive State subject, then each State is bound to legislate and work out a separate police. But even then that will leave the question of another field of legislation where above the concern of different States there may be still a requirement of police. That is why the members of the Force are asked to serve without and beyond the territory of India as also within its territory by virtue of Section 7(2) of the Act. It is a kind of auxiliary force to help and assist. This is what I arrive at as a true view of the construction of the Act. It is needless for me to say that in taking that view of construction, the affidavits also support the view. The affidavit of the Deputy Secretary to the Government of India in the Ministry of Home Affairs affirmed onthe 3rd June, 1971, makes it clear that the Central Reserve Police Force are deployed with a view to assist the Civil Power of the State Government and further that the question of posting of Central Reserve Police Force in a State or of withdrawing the same, is constantly under review of the Union Government and that the Union Government decides the size of the Force in a State mainly on the basis of expected requirement of aid to civil power of that State. To the same effect is the affidavit of R. N. De, Deputy Secretary, Home Department, Government of West Bengal which says that the question of posting of the Central Reserve Police Force and its existence are being constantly watched and considered by the appellants and as soon as the appellants feel that normal situation has been established in the State, the same would be withdrawn. That seems to agree with the construction that I am taking of the word 'Reserve' as a stand-by. Undoubtedly when the Central Reserve Police was called for, the State was in great distress and in trouble, because it had not the adequate police force. Therefore, it wanted the reserve or the stand-by police force of the Centre. In that view of the matter, Section 7 as well as Section 16 of the Central Reserve Police Force Act, 1949, appears to me to be incidentally trenching on a State subject, namely, 'the Police' in the State List and as such is permissible.
31. Having come to that conclusion, on the merits of the case, I shall examine whether on the technical interpretation of the Legislative Lists, the creation of such an armed force of the nature which I have described above is permissible under the Constitution or under the Government of India Act, 1935 for the Federal Legislature to pass such an Act. The Government of India Act, 1935, described the List I as the Federal Legislative List and used the following material expression in Item 1:
'His Majesty's naval, military and air forces borne on the Indian establishment and any other armed force raised in India by the Crown, not being forces raised for employment in Indian States or military or armed police maintained by Provincial Governments.'
Apparently it did not include Armed Police maintained by the Provincial Government of the time. Apparently the Government of India was contemplating an Armed Force for the Indian Government. It cannot therefore be said that because Item 3 in the Legislative List II, State List, the word 'Police' is used, it includes Armed and Unarmed Police and therefore it impinges on the State ListItem 1 of List I should be harmonised with Item 3 of List II of the Government of India Act, 1935, in the Seventh Schedule. The intention obviously was not to interfere with the Armed Police maintained by the Provincial Government. Therefore, that an Armed Police was maintained by the Provincial Government was well known to the India Government. At the same time, the question of Armed Police being considered in connection with 'any other Armed Force' would indicate that Armed Police will come within the meaning of 'any other Armed Force'. This is the essential raison detre and not merely the statement in the Objects and Reasons of the statute which I have quoted above. It is true that by India (Provisional Constitution) Order, 1947, a slight amendment was made in Entry 1 of List I in the Federal List, but it does not, in my opinion, affect the essential core of the meaning, because it still Used the words 'The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion'. Besides the point is to be emphasised that this is not in replacement of the State Police, not in replacement of the Police Act of 1861 but in addition to and supplementary to the same in so far as their operation within the State is concerned. This construction of the Legislative Lists is in consonance with the residual powers of legislation with the Federal Legislature or with the Union Government in case it is held that it does not come under 'any other armed force' within List I, Item 1, Seventh Schedule, of the Government of India Act, 1935. That is also the provision in Article 248 of the Constitution of India.
32. This double aspect doctrine is reflected in Chief Justice Marshall's statement in Gibbons v. Ogden, (1824) 22 US 1, at p. 90, where the learned Chief Justice said that 'all experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical'. The whole scheme of the Central Reserve Police Force Act, 1949, breathes the spirit and the letter of an 'armed force'. Illustrations of it may be had from Section 2, the definition section of the Act. The ranking of this armed force is also in consonance with it. For instance, Section 2(g) indicates that 'subordinate officer' means a member of the Force of the rank of subedar-major, subedar, jemadar or Sub-inspector. Section 2(d) indicates that a 'member of the Force' means a person who has been appointed to the Force by the Commandant. Besides, Sections 9, 10 and 11 indicate the special punishments when a member of the Force commitscrimes which are set out in those sections. Section 4 of the Act speaks of the appointment of a Commandant to the Force and such Assistant Commandants and Company Officers. 'Commandant' and 'Company Officers' are expressions indicative of an armed force. Section 5 of the Act speaks of 'recruiting roll' which again is more appropriate to an armed force. Taking an overall view of the Central Reserve Police Force Act, 1949, it appears to me that they are also covered by Items 1 and 2 of the Concurrent List, being List III of the Constitution as well as the same Items in the Concurrent Legislative Lists of List III, Part I, of tha Government of India Act, 1935.
33. It is the true nature and character of the legislation and not its ultimate political or social or technical effects that matter, as was pointed in Russell v. The Queen, (1882) 7 App Cas 829 at pp. 839-40. See Gold Seal Ltd. v. Dominion Express Co., 62 (Canadian) SCR 424. Exclusively such legislative powers must be interpreted in the light of trenching, ancillary and necessarily incidental doctrine. See Laskin's Canadian Constitutional Law, Third Edition, pp. 97 and 98, 'Ancillary' and 'necessarily incidental' doctrine does not mean enlarging tha scope of the Federal power at the expense of the States, but merely to emphasise that there is an independent constitutional basis for what can rationally be brought within the Federal authority. See the Canadian case of Attorney-General of Canada v. Nykorak, 33 DLR (2d) 373.
34. The construction and the interpretation of the Constitution have a special significance. The arrangement of the legislative powers in the different Articles of the Constitution and in the Legislative Lists have to be construed to keep the balance of the entire State in a proper order. The Constitution is a living force. It must be so interpreted as to meet the challenge of time. The Constitution is a document, though prepared at a particular time, was timeless, aspirations which it should be able to meet, as Chief Justice Marshall of, the American Supreme Court observed in the case of Me Culloch v. Meryland, (1819) 4 Wheaton 316. We are interpreting a Constitution. It is not like the interpretation of a promissory note or a deed of transfer of property or a mere contract between the parties. In interpreting the Constitution, the entire political philosophy and the whole gamut of the instrument of the Constitution should always be kept in view. Neither for the glamour for definition of autonomy for the States, nor acquisitiveness of Federal and Parliamentary power should have the last word onthe interpretation of the Constitution of India. The construction and interpretation of the Constitution has to be an evolving one and according to the circumstance of the time it has to adjust itself to the changing environments.
35. I hold, therefore, that the Central Reserve Police Force Act, 1949, was not ultra vires the Government of India Act, 1935 and that it was a law validly in force within the meaning of Article 372 of the Constitution. I hold further that there should be no writ in the nature of mandamus in these appeals.
36. In the result, I set aside the Judgment and order of the learned trial Judge, discharge the Rule and dismiss the petition. The appeals are allowed.
37. There will be no order as to costs in any of the appeals.
38. All interim orders are vacated.
B.C. Mitra, J.
39. I agree but would give my own reasons for coming to the same conclusion.
40. The subject-matter of challenge in the writ petition out of which these two appeals arise is, the vires of the Central Reserve Police Force Act, 1949, (hereinafter referred to as the Act). The Constituent Assembly of the Dominion of India, in exercise of its legislative powers under Section 8(1) of the Indian Independence Act, 1947, enacted the impugned Act. Under that Act 'the Constituent Assembly, for the purpose of legislation, had the power of Federal Legislature under the Government of India Act, 1935. The impugned Act was a law in force when the Constitution of India came into force and as such is a valid law under Article 372 of the Constitution, until repealed or altered by a competent authority.
41. If the Federal Legislature, exercising its legislative powers under the Government of India Act, 1935, had the power to enact the impugned Act, the Constituent Assembly of the Dominion of India, which passed the Act by reason of the provisions in the Indian Independence Act, 1947, would also have the power and the competence to enact the impugned Act.
42. Distribution of legislative powers between the Federal and Provincial Legislatures is dealt with in Chapter I, Part V of the Government of India Act, 1935. Sub-section (1) of Section 100 of this Act provides that the Federal Legislature has and the Provincial Legislature has not the power to make laws with respect to any of the matters enumerated in List I in the 7th Schedule to the Act. Subsection (2) provides that both the Federal Legislature and the Provincial Legislature have power to make laws with regard to matters enumerated in List IIIin the said Schedule. This is called the Concurrent List. Sub-section (3) of this section provides that the Provincial Legislature has and the Federal Legislature has not the power to make laws for a province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule.
43. Before proceeding to deal with the competence of the Federal Legislature and the Constituent Assembly of the Dominion of India, which exercised the power of the Federal Legislature, to enact the impugned Act, I should refer to the facts in this case.
44. The first respondent was formerly a Member of the Legislative Assembly of the State of West Bengal. The case of the first respondent as made out in the petition is that several members of the illegally constituted Central Reserve Police Force are stationed in different parts of West Bengal by Union of India, to suppress the democratic movement of the people of the State, and this Police Force has let loose a reign of terror throughout the State by oppressing the people. Instances of acts of oppression have been set out in Paragraph 20 of the petition. These allegations are that the members of the Force have committed a number of murders of young men, working people and peasants, and have carried out tortures on men and women, that peasants have been attacked and people travelling in a Bus have been arrested, that help has been given to Jotedars to beat up the Adhiars (share-croppers), that villages have been attacked and innocent men and women have been beaten up, that houses of poor peasants were broken open, innocent men and women were beaten up and valuables were looted, that members of the Reserve Police Force in a drunken state broke open the doors of many houses and indiscriminately arrested people including school teachers. The particulars of indiscriminate arrest, beating, raid of houses of innocent people have been set out under Paragraph 20 of the petition. It is to be noticed, however, that there is no allegation at all in the petition of any act of torture, oppression or cruelty so far as the first respondent is concerned. It is on these allegations that the first respondent obtained a Rule Nisi which was made absolute by a judgment and order dated April 18, 1972. against which this appeal has been preferred.
45. The two questions which were raised in the trial Court and on both of which the trial Court held in favour of the first respondent were: (1) whether' the Central Reserve Police Force Act, 1949, was a valid piece of legislation and (2) whether the first respondent had the locus standi to maintain the writ petition.
46. In order to deal with the question of validity of the Act, it is necessary to examine the purpose and the object in view for which the Act was passed. It is an Act to provide for the Constitution and regulation of an Armed Central Reserve Police Force. The preamble of the Act says:
'Whereas it is expedient to provide for the constitution and regulation of an Armed Central Reserve Police Force.' Section 3 of the Act deals with the Constitution of the Force and provides that there shall continue to be an Armed Force maintained by the Central Government and called the Central Reserve Police Force. Section 4 deals with appointment and powers of superior officers. Section 5 deals with enrolment and Section 6 deals with the resignation and withdrawal from the Force. Section 7 of the Act which (is of importance for the purpose of this appeal, deals with general duties of members of the Force. This section is as follows :
'7 (I). It shall be the duty of every member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist.
(2) Every member of the Force shall be liable to serve without and beyond, as well as within the territory of India.'
47. Section 8 deals with superintendence, control and administration of the Force. Section 9 deals with more heinous offences. This section has created new offences, and has also prescribed punishments which may be imposed on members of the Force. Section 10 deals with the less heinous offences which again are special offences for which the members of the Force only may be liable. Section 11 prescribes minor punishments. Section 16 which is also important for the purpose of this appeal, deals with powers and duties imposable on members of the Force. It is as follows:
'16. (1) The Central Government may, by general or special order, confer or impose upon any member of the Force any of the powers or duties conferred or imposed on a Police Officer of any class or grade by any law for the time being in force.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of enquiring into or trying any offence committed by a member of the Force against the person or property of another member. Provided that--
(i) when the offender is on leave or absent from duty, or
(ii) when the offence is not connect ed with the offender's duties as a member of the Force, or
(iii) when it is a petty offence, even if connected with the offender's duties as a member of the Force, the offence may. if the prescribed authority within limits of whose jurisdiction the offence has been committed, so directs, be enquired into or tried by an ordinary Criminal Court, having jurisdiction in this matter.'
48. Section 17 deals with protection for acts of the Members of the Force, Section 18 deals with power to make Rules and the last section in the Statute, Section 19, deals with validation of the acts done before the commencement of the Act. On an analysis of the various sections of the Statute, it seems that the two relevant sections are Sections 7 and 16 which have been set out above.
49. It is necessary to refer once again to the Government of India Act, 1935, under the provisions of which the impugned Act was passed by the Constituent Assembly of the Dominion of India exercising the powers of the Federal Legislature. Sub-section (1) of Section 100 of that Act provides that the Federal Legislature has, and the Provincial Legislature has not, the power to make laws with respect to any of the matters enumerated in List I in the 7th Schedule. Sub-section (3) of this Section, as I have noticed earlier, confers upon the Provincial Legislature the power to make laws for a province or any part thereof with respect to any of the matters enumerated in List II in the 7th Schedule. The question is if, having regard to the provisions in Section 100, and the distribution of the fields of legislation in the 7th Schedule, the Constituent Assembly had the competence to enact the impugned legislation. The Central Reserve Police Force was continued by the statute for certain specific purposes which have been enacted in Section 7 of the Act to which I have referred earlier. These purposes are inter alia to obey and execute all orders and warrants lawfully issued by a competent authority, to detect and bring offenders to justice, and to apprehend persons for whose apprehension sufficient grounds exist. Sub-section (2) of this Section makes the members of the Force liable to serve without and beyond the territory of India, as well as within the territory of India. Keeping aside the provisions of Sub-section (1) of Section 7 for the tune being, as I shall refer to them later in this judgment, it seems to me that Sub-section (2) of this section makes it abundantly clear that the Federal Legislature alone had the competence to make the law. and the State Legislature could not possibly have the competence to make the enactment, imposing liability upon the members of the Force to serve 'without and beyond' the territory of India. The Provincial Legislature under the Government of India Act, 1935, has no jurisdiction to make laws imposing liability on a member of the Force to serve beyond the territory of India. Such a liability could be imposed by Federal Legislature alone. Secondly, the members of the Force are liable to serve in any part of the territory of India. The Provincial Legislature of Bengal could possibly have no jurisdiction to impose the liability on members of the Force to serve in any part of India beyond the borders of Bengal. By Sec. 99(1) of the Government of India Act, -1935, the jurisdiction of the Provincial Legislature of Bengal was confined to the territory of Bengal and could not extend beyond this territory. This, in my view, is decisive so far as the question of competence of the Provincial Legislature of Bengal is concerned. In my view, there is no room for debate or doubt on the question whether the Provincial Legislature of Bengal could enact a law which would have the effect of imposing obligations on members of the Force to serve beyond the territory of Bengal, much less beyond the territory of India-50. I shall now turn to the 7th Schedule and the distribution of the fields of legislation by Lists I, II and III. In dealing with these Lists, and before going into the question of application of the doctrines of ejusdem generis, and the principle of pith and substance, in the construction of Statutes, I shall deal with the broad principles of distribution of legislative subjects by these three Lists. List I is the Federal Legislative List, and Item I of this List is:
'1. The Naval, Military and Air Force of the Dominion and any other Armed Forces raised or maintained by the Dominion; and Armed Forces which are not Forces of the Dominion but are attached to or operating with any of the Armed Forces of the Dominion; Central Intelligence Bureau, Preventive Detention for reasons of State connected with defence or External Affairs.'
It is therefore apparent that besides Navel, Military and Air Forces, the fields of legislation relating to any other Armed Forces raised or maintained by the Dominion, exclusively vests in the Federal Legislature. The question whether the words 'any other Armed Forces' are to be read ejusdem generis is a matter which would be examined later on. What is ofimportance is that the Armed Force to1 be raised and maintained by the Dominion, is an exclusive field of legislation of the Federal Legislature. The emphasis is on 'Armed Forces' because in the List II, which is the Provincial Legislative List, the Provincial Legislature has not been given any power to raise an Armed Force. The Civil Police which is' concerned with the maintenance of pub-lice order is not an Armed Force, even though fire-arms are provided to the members of the Police Force. An Armed Force is entirely different from a Police Force provided with fire-arms. This is the first matter to be noticed in examining the subjects distributed by List I, List II and List III of the 7th Schedule. Item I in List II is 'Public Order' which is commonly known as maintenance of law and order, and which includes maintenance of peace, enforcement of law, detection of crime, apprehension of criminals and other similar matters dealt with by the Criminal Procedure Code. Item 3 in this List is 'Police including Railway and Village Police'. It is this item in the Provincial List which is the source of inspiration, of the contention of the first respondent, that the Central Reserve Police Force Act is ultra vires the Government of India Act, 1935, and beyond the competence of Federal Legislature and the Constituent Assembly of the Dominion of India. The basis for this contention was that legislation in matters connected with the Police was within the exclusive jurisdiction of the Provincial Legislature, and because the impugned Act, under Section 7 thereof, empowered the Central Reserve Police to detect crime and apprehend criminals, they were discharging the powers of the Civil Police. Therefore, it was argued, the impugned Act had trenched upon the legislative field of the Provincial Legislature, and for that reason it was ultra vires the Government of India Act, 1935. Turning now to List III which is the Concurrent List, it is to be noticed that Item 1 in this List is criminal law including all matters included in the Indian Penal Code and Item 2 is:
'Criminal Procedure including all matters included in the Code of Criminal Procedure at the date of passing of this Act'
51. It was argued by the learned Advocate-General on behalf of the appellant that the Federal Legislature was competent to legislate on all matters included in the Code of Criminal Procedure. He relied upon Sections 42, 43, 46-49, 53, 54, 77, 78, 149 and 151 of the Criminal Procedure Code in support of his contention that the Central Legislature could legislate on matters relating to the arrest of criminals, search, seizureof weapons, arrest without warrant, issue and execution of warrants of arrest and prevention of the commission of cognisable offences. These are subjects relating to the functions of the Civil Police connected with the maintenance of law and order. Yet by virtue of Item 2 in List III, it was argued, the Federal Legislature had the competence to legislate on any of the matters touching these subjects. Therefore, it was argued, even though the Central Reserve Police Force had been given the power to detect and apprehend criminals, which function overlaps the functions of the Civil Police, it could not be said that the Statute creating the Force was ultra vires. The legislative field of the Federal Legislature included the entire Code of Criminal Procedure and therefore, it was submitted, the powers and functions conferred on the Forces by Section 7 of the impugned Act were quite 'within the competence of the Federal Legislature.
52. It seems to me that there is good deal of force in this contention of the learned Advocate-General. Keeping in mind the fact that legislation on all matters including the Indian Penal Code and all matters included in the Code of Criminal Procedure has been placed in the Concurrent List, Federal legislation on matters included in the Penal Code and the Criminal Procedure Code, cannot be questioned or challenged on the ground that powers and functions connected with the provisions in the Indian Penal Code and the Criminal Procedure Code have been conferred by a Federal Statute on a Force raised by a Statute enacted by the Federal Legislature. It is easy to condemn a Statute on the ground that it is ultra vires the powers of the Legislature and that it trenches upon the legislative field of a different Legislature, but it is less easy to uphold such a view when the provisions in the Constitution relating to distribution of legislative powers to different Legislatures are closely analysed. What is there, in this case that attracts the censure of ultra vires It is legislation by the Constituent Assembly, exercising the powers of the Federal Legislature, conferring powers to execute warrants, to detect crime and to apprehend and bring to justice, persons so apprehended and for whose apprehension sufficient grounds exist. These are the powers which have been conferred by Section 7 of the impugned Act upon the Central Reserve Police Force. The other provision in the impugned Statute, which is claimed to have transgressed the limits of Federal legislations is Section 16, to which I have referred earlier. In my view, the matters covered by both Section 7 and Section 16 of the impugned Act are within the matters included in theCode of Criminal Procedure. The trial Court while holding that the expression 'procedure' in its wide connotation included all stages involved in the detection, prevention and prosecution of crimes and offences, proceeded to hold that the expression 'procedure'1 had a restricted connotation and finally concluded that the legislation could not be construed to fall within the ambit of Criminal Procedure. In my view, this is not the correct approach in considering the field of legislation prescribed by the Constitution Act Entry 2 of List III includes not only Criminal Procedure, but specifically includes all matters included in the Code of Criminal Procedure, and it is a superfluity to say that the Criminal Procedure Code not only deals with procedural matters but also enables the appropriate authority to confer powers on the law-enforcing agents for various other purposes which can, by no means, be said to be purely or only procedural in nature. The powers that have been conferred on the members of the Force by Section 7 and Section 16 of the Act clearly come within the ambit of matters covered by the Code of Criminal Procedure, and for that reason, the Federal Legislature is as competent as the Provincial Legislature to make laws touching such matters.
53. In considering the question of vires of a Statute, when the challenge is on the ground of competence of a Legislature, the vision should neither be dimmed nor clouded by adherence to principles of construction which ought not to be invoked, and it ought not to be held by the application of such principles that the Legislature has overstepped the limits imposed by the Constitution. The effort should be to uphold the legislation, if its true character is such as to place it within the field of the legislature. The presumption should be that the legislature in passing the Act has covered those subjects only which are within its competence. If the true character of the enactment is within the legislative field of the legislature, it should be upheld, even if incidentally, the field of legislation of another legislature has been trenched upon. That is a principle well settled and established in considering the question of vires of a Statute and must be adhered to. A departure from these principles would lead to unproductive deliberation of irrelevant questions which should be avoided.
54. The Court should however unhesitatingly strike down a Statute or any of its provisions, if it is satisfied that the legislature has clearly and manifestly legislated on matters beyond the field prescribed by the Constitution Act and not merely incidentally trenched uponthe field prescribed for another legislature by the Constitution Act.
55. In proceeding to consider the question of vires of the Act, the first matter to be considered is the title of the Act which in this case is the Central. Reserve Police Force Act. The title of the Act, as defined by Section 1 of the Act, taken together with the Constitution of the Force by Section 3 of the Act which says: 'There shall continue to be an Armed Force maintained by the Central Government and called the Central Reserve Police Force' makes it abundantly clear that the Armed Force continued by the Statute is a 'Reserve Armed Police Force'. The word 'Reserve' used in the Act should receive its due meaning and interpretation, 'and the use of that word is significant. It should not be ignored and cannot be treated as superfluous. The ordinary meaning of the word 'Reserve' is that it is a stock which may be drawn upon whenever needed, that is to say, in this case a Force which is not intended to become operative ordinarily, but would become operative whenever the situation demands. Our attention was drawn to the meaning of the word 'Reserve' as appearing under the word 'Militia' in Wharton's Law Lexicon 14th Ed. P. 656, where it is stated : 'The term Militia is now applied to that part of the Army Reserve which was formerly called the 'Special Reserve' ............... ThisReserve Force can be used in times of emergency and danger where required, but any member of this Force can volunteer for 'service at other times than these'. This definition makes it clear that a Reserve Force is not intended to be deployed in ordinary circumstances, but is intended to be deployed whenever the situation develops to such an extent, and in such a manner, that the Force available is not adequate to cope with it
56. In this connection, I should notice the averments in the Affidavit-in-Opposition affirmed by Prem Prakash Khanna on June 3, 1971. In paragraph 9 of this affidavit, it is stated that the Central Reserve Police Force is deployed, with a view to assist the civil power of the State Government and in paragraph 10, it is stated that the Union Government decides the size of the Force in a State mainly on the basis of expected requirement of aid to civil power of the State. Reference should also be made to paragraph 13 of the Affidavit-in-Opposi-tion affirmed by R. N. De on January 18, 1972. In that paragraph, it is stated that the question of posting of the Central Reserve Police Force, and its existence are being constantly watched and considered by the respondents and it is submitted that as soon as the respondentswould feel that the normal situation has been established in the State, the same will be withdrawn. Excepting for a bare and vague denial in the Affidavit-in-reply affirmed by the first respondent on February 7, 1972, no attempt has been made to controvert or dispute the statements made in the affidavits-in-opposi-tion. It is, therefore, clear to me that the Central Reserve Police Force has been brought into West Bengal to meet a particular need, and it is not intended to be permanently posted in the State, and is to be withdrawn as soon as the appellant and the second respondent are satisfied that the situation warrants such withdrawal. It is plain to me that the Central Reserve Police Force has not been deployed in the State of West Bengal, even assuming that its duties and functions coincide with and are the same as that of the Police Force of the State, for the purpose of usurping the powers, functions and duties of the latter. It is also clear to me that the Central Reserve Police Force has been brought into the State in aid of the State Police, and the necessity for its deployment in the State is under constant review.
57. As I said earlier the use of the word 'Reserve' in the title of the Act and also in Sec. 3 is significant, and this should not be lost sight of. An Armed Reserve Police Force cannot be equated with the Civil Police of the State. It cannot for that reason be said that the Act is an invasion on the field of legislation in Entry 3 of List II of the 7th Schedule to the Government of India Act, 1935, even assuming that the members of the Force may be called upon to discharge the duties prescribed by Section 7 of the Act. I will now proceed to deal with the other contentions raised on behalf of the parties in this appeal.
58. It was argued by Mr. A. P. Chatterjee on behalf of the first respondent, that the Act merely dealt with the procedure for taking action with regard to a special class of persons, namely, the members of the Central Reserve Police Force. It was next argued that Entry 2 in List III of the 7th Schedule dealt with 'Procedure' which meant the successive steps in litigation. It was further argued that the Act was concerned with the creation of a Force for 'certain specified purposes namely, prevention and detection of crimes, and maintenance of law and order, and therefore it was not possible to construe or to consider such legislation as falling within the scope of Criminal Procedure which was Entry 2 of List III of the 7th Schedule.
59. It seems to me that there is an inherent fallacy in this argument. The Statute was not merely concerned with setting up of an Armed Force for detection and prevention of crimes, and maintenance of law and order, but it created and defined new offences, which would not have been offences under the existing laws, but for the provisions in the Statute itself. Section 9 of the Act deals with more heinous offences, Section 10 deals with less heinous offences and Section 11 prescribes minor punishments. It was said that these were offences with regard to the acts or omissions of a particular class of persons and were not of general application. But the mere fact that the offences contemplated by the Act are offences with regard to the conduct of a particular class of persons, does not make the Act any the less a penal Act which has created new offences and prescribed new punishments unknown to the existing law. There are innumerable ' instances of Special Statutes, which have created new offences by a particular class of persons. The Act, in my view, is legislation with regard to Criminal Law in Entry 1 of List III, and matters included in the Code of Criminal Procedure in Entry 2 of the said List, the fact that it applies only to the Central Reserve Police Force and not to all persons, notwithstanding. It is not, in my view, the correct approach in construing the vires of the Statute, to consider whether the Act is dealing with procedure only as prescribed by Entry 2 of List II! of the 7th Schedule. The Act plainly and manifestly deals, in addition to other matters, with Criminal Law as such, which comes within the ambit of Entry 1 of List III.
60. I now proceed to deal with the contention of Mr. Chatterjee that 'Police' is a subject on which the Provincial Legislature alone had the exclusive jurisdiction to legislate, and therefore the Federal Legislature was not competent to pass an Act relating to the 'Police'. It is true that the Act is called the Central Reserve Police Force Act. It is also true that the duties created by Section 7 of the Act, in so far as they relate to detection of crimes and of bringing offenders to justice, execution of warrants and apprehension of persons legally authorised to be apprehended, are duties which the Civil Police is also required to discharge. But the question is does the use of the word 'Police' make the Federal Legislature, incompetent to enact the law, because 'Police' is included in List II of the 7th Schedule The trial Court, in dealing with this question referred to the dictionary meaning of the word 'Police' which is:
'the Department of Government which is concerned with the maintenance of public order and safety and the enforcement of law, the extent of its functions varying greatly in different countries and at different periods. The civil force to which is entrusted the duty of maintaining the public order, enforcing regulations for the prevention and punishment of breach of the law and detecting crime'.
61. It is permissible and it may even be necessary to refer to the name and title of a Statute in considering its pith and substance. But the words used in its title, ought not to be given a strictly verbal interpretation, which would make the statute invalid. The words in the title of an enactment must receive their true interpretation, but such interpretation must be in the context of the Statute in its entirety, keeping in view its true nature and character. The Statute has to be considered as a whole, and its validity would depend, in considering the question of competence of the Legislature on its pith and substance, to which subject I shall revert in greater detail later in this judgment.
62. The word 'Police' is known to be used in connection with organisations which have nothing to do with execution of warrants, detection of crime, apprehension of criminals and bringing of such criminals to justice. For instance, the Military Police functions wherever units of Army are stationed. Their duties are far removed from those which the Civil Police discharge under the Criminal Law and Procedure of a State. Its duties are confined to regulation, control and apprehension of members of the Armed Forces. Similarly, there is the other organisation known as 'Interpol' which is the name for the International Police Force whose duties again are far removed from detection and apprehension of criminals under the local Criminal Law and procedure. Then again there is the Railway Police, whose duties are far removed from those of the Civil Police of the State, and are confined to matters connected with the Railway administration in Its own sphere of law and order.
63. Taking into consideration the provisions in Section 3 and Section 7(2) of the Act, there can hardly be any doubt that the object of the Act is to raise an Armed Force to be maintained by the Central Government, every member of which Force shall be liable to serve beyond the territorial limits of India and also within any part of the territory of India. These, in my view, are far removed from the ordinary and normal duties of a Civil Police and also far removed from the duties in the dictionary definition quoted above. In my view, therefore, it can by no means be saidthat merely because the word 'Police' has been used, the subject-matter of legislation covered by the impugned Act is within the exclusive field of legislation of the Provincial Legislature by reason of Entry 3 of List II of the 7th Schedule to the Government of India Act, 1935.
64. I will now proceed to consider the question of application of the doctrine of ejusdem generis in regard to the vires of the Act. In doing so, I shall in the first instance refer to the decision of the Supreme Court : [1961]43ITR393(SC) , which was relied upon by the learned Advocate-General and to which reference has been made by the trial Court. In that case a writ petition was filed under Article 32 of the Constitution raising the question of the vires of Section 16(3)(a)(i) of the Indian Income-tax Act, 1922, and in dealing with this question it was said at p. 125 of the Report:
'It is well settled that the Entries in the List are not powers but are only fields of legislation, and that widest import and significance must be given to the language used by Parliament in the various Entries.'
On this question reference should also be made to another decision of the Supreme Court : AIR1962SC1044 . In that Case the vires of the West Bengal Oriental Gas Company Act, 1950, was the subject-matter of challenge and dealing with the question of distribution of legislative power under the different Lists in the 7th Schedule in the Constitution, it was held:
'The power to legislate is given to the appropriate legislature by Article 246 of the Constitution The Entries under the 3 Lists are only legislative heads or fields of legislation: They demarcate the area over which the appropriate legislature can operate. It is also well-settled that widest amplitude should be given to the language of the Entries. But some of the Entries in the different Lists or in the same List may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the Entries and bring about harmony between them.'
65. Keeping these observations in mind. I will proceed to deal with the question of application of the principle of ejusdem generis in construing Entry 1 of List I of the 7th Schedule to the Government of India Act, 1935. The relevant part of that Entry is: 'The Naval, Military and Air Force of the Dominion and any other Armed Forces raised or maintained by the Dominion......' Shortly putthe doctrine of ejusdem generis means that where particular or specific words have been used in a Statute and thesewords are followed by general words then the general words' are to be construed to be restricted to the same genus as the particular or specific words which precede the general words, that is to say, the general words following particular words should be construed to mean only things of the same variety as indicated by the particular words. In this case, the words 'The Naval, Military and Air Forces of the Dominion' are followed by the expression 'any other Armed Forces maintained by the Dominion'. The question is whether by application of the doctrine of ejusdem generis, it can be said that the only Armed Force that could be raised under Federal legislation was to be an Armed Force similar to the Naval, Air and Military Forces to be used for the defence of the country. In applying the doctrine, however, there must be a genus or a category, and if there is no genus or category, the doctrine has no application and cannot be invoked. The learned Advocate-General contended that the doctrine could not be invoked and applied in this case because there was no distinct genus. He argued that the Army, Navy and Air Force were separate and independent units, constituted under separate Statutes of Parliament, and there was neither category nor genus running through the Army, Navy and Air Force. In support of this contention reliance was placed by him on a decision of the Supreme Court : (1968)ILLJ257SC . The trial Court, however, firstly applied the doctrine of ejusdem generis and held that it would be inappropriate to include a Civil Armed Force created for the public order and for detection of crimes in the category of 'any other Armed Forces' in Entry 1 of List I of the 7th Schedule to the Government of India Act, 1935. But after holding this, the trial Court proceeded to hold that it would be inappropriate to exclude the Central Reserve Police Force from the category of 'any other Armed Forces' solely or mainly on the ground that on an application of the doctrine of ejusdem generis, it was not an Armed Force similar to the Naval, Military and Air Forces of the Dominion.
66. In my view, however, the application of the doctrine of ejusdem generis in this case is not relevant and not necessary for the purpose of this appeal. The reason for my saying so is that, even if the doctrine is applied, the Armed Force continued by Section 3 of the Act, with its duties such as those specified in Section 7(2), of the Act, cannot but be held to be an Armed Force of the nature of the Army which may be called upon for duty outside the territory of India and within any part of the territory of India. In coming to this con-elusion, I am assuming that there is a genus or category in the three varieties of Forces namely, 'The Naval, Military and Air Forces of the Dominion' and that genus is the defence of the country. The Central Reserve Police Force with its duties, such as they are, can by no means be said to be a Civil Armed Force created only for the maintenance of public order and for prevention and detection of crimes. Nor can it be said to be a Police Force within the meaning of the term 'Police' in Entry 3 of List II, whose duties must necessarily be confined to be within territorial boundary of the province, and who can never be called upon to function beyond this 'territorial boundary and certainly not beyond the territorial limits of India.
67. If, on the other hand, the doctrine of ejusdem generis is not applicable, the Federal Legislature is without a doubt com'petent to raise an Armed Force to be maintained by the Central Government, There can be no doubt that the Force is an Armed Force, the use of the word 'Police' notwithstanding. This Armed Force was raised by the Central Government and is being maintained by them. Its duties are such, as have been laid down in Section 7 and Section 16 of the Act. It is liable to be called upon to do its duties anywhere within the territory of India and also beyond the limits of such territory. Such being the position, it cannot but be held that it comes within Entry 1 of List I of the 7th Schedule to the Government of India Act. 1935.
68. I will now turn to the application of the doctrine of pith and substance in considering the question of vires of the Act. Shortly put, this doctrine which has been evolved by the Judicial Committee for the purpose of dealing with the question of vires of a Statute, means that where the questions of validity of a Statute have been raised, on the ground that the Legislature enacting that Statute has transgressed the limits prescribed by the Constitution in its provisions regarding distribution of legislative fields between different Legislatures, the Court should look at the true nature and character of the Statute, for the purpose of determining whether the legislation is invalid on the ground that it was beyond the competence of the Legislature enacting it. I have referred to the various provisions in the impugned Act, and keeping those in mind, the question is what is the true nature and character of the Act? In answering this question it will be a wrong approach to take particular section of the Statute, and then see if it comes within this or that List in Schedule 7 to the Government of India Act, 1935. I say it will bea wrong approach, because the true nature and character of the Act cannot be ascertained by testing particular sections of the Statute with reference to the subjects in one or another List, but the Statute has to be read as a whole, to ascertain its true nature and character, its true object and purpose. As I have noticed earlier it provides for the continuation of an Armed Force to be maintained by the Central Government, and under Section 7(2), every member of the Force shall be liable to serve without and beyond, as well as within the territory of India. Section 8 deals with superintendence, control and administration of the Force. Sections 9 to 15 deal with offences and punishments. Section 16(1) enables the Central Government to confer upon members of the Force, the powers and duties conferred upon a Police Officer by any law in force. Section 16(2) says that notwithstanding the provisions in the Code of Criminal Procedure, the Central Government may invest the Commandant or Assistant Commandant with the powers of a Magistrate for enquiring into or trying offences committed by a member of the Force and punishable under the Act or any offence committed by a member of the Force against the person or property of another member. Section 18 confers upon the Central Government the power to make Rules and Section 19 provides for validation of acts done before the commencement of the Act. 1 have very carefully considered all the Sections of the Act, and have also taken into consideration the objects and reasons together with the preamble of the Act. The material portion of the objects and reasons is as follows:
'For the purposes of this Bill, this Force falls within the category of 'any other Armed Forces raised or maintained by the Dominion' mentioned in Paragraph 1 of List I of the 7th Schedule to the Government of India Act, 1935, as adapted'.
The Preamble to the Act is :
'whereas it is expedient to provide for the Constitution and regulation of an Armed Central Reserve Police Force.'
69. The question is should it be held, keeping in view the objects and reasons of the Bill, the preamble of the Statute itself, and the provisions in the same, that the object of the Act, and its purpose is to usurp or take over the functions of the Police, which is Entry 3 of List II of the 7th Schedule? The second question is, can it be held that the object and the purpose of the Statute is to create an Armed Force to discharge the duties of the Civil Police in maintaining public order? The answer to both these questions, in my view, cannot but be in the negative. While Section 7(1) of the Act imposes upon members of the Force the obligation to obey and execute orders and warrants, to detect and bring offenders to justice and to apprehend persons who are legally authorised to be so apprehended, these provisions have to be read along with Section 7(2) of the Act, by which every member of the Force shall be liable to serve beyond the territory of India, as well as, within the territory. In considering the question of object and purpose of the Act, it must be borne in mind, that no Provincial Legislature could legislate for creating a Force which would be liable to serve throughout the territory of India, nor could such a Force be made liable by Provincial Legislation to serve beyond the territory of India. The sphere of activities and duties of the Force is not confined to the provincial boundaries, but extend to the whole of the territory of India and furthermore, beyond the territory of India. It is beyond doubt and debate that no Provincial Legislature exercising its legislative powers under the Government of India Act, 1935, and within the fields prescribed by Lists II and III of the 7th Schedule, could pass an Act which would be operative and enforceable not only beyond the territorial boundary of the province itself, but beyond the territorial boundary of India. In my view, no other conclusion on this question is possible. It is not possible, in the first instance, to hold that the impugned enactment was within the exclusive field of legislation of the Provincial Legislature. It is not possible again to hold that it was within the competence of the Provincial Legislature to make a law for creating a Force, imposing duties upon it to be discharged beyond the territorial boundary of the province and beyond the territorial boundary of India.
70. Mr. Chatterjee said that the objects and reasons should not be looked into in considering the question of vires of the Statute, as they were not part of the Statute itself. But while it is true that the statements in the objects and reasons of a Statute, cannot and ought not to be decisive in the matter of construction of a Statute, when doubts are raised as to the true object and character of a Statute, or as to the meaning of particular words and phrases used, the Courts have not only taken into consideration the statements in the objects and reasons of the Statute but have also taken into consideration the debates on the Bill in the Legislature.
71. On the question discussed above, our attention was drawn by the learned Advocate-General to a decisionof the Federal Court 1940 FCR 188 = (AIR 1941 FC 47). The dictum of Gwyer C. J. on which reliance was placed by the counsel for the appellant and which was quoted with approval by the Judicial Committee, as I will presently notice, is at p. 201 of the Report and is as follows:
'It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one List, touches also on a subject in another List; and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal, interpretation would result in a large number of Statutes being declared invalid because the legislation enacting them may appear to have legislated in a forbidden sphere. Hence the Rules which have been evolved by the Judicial Committee whereby the impugned Statute is examined to ascertain its pith and substance, or 'its true nature and character', for the purpose of determining whether it is legislation with respect to matters in this List or that............In my opinion this Rule of interpretation is equally applicable to the Indian Constitution Act'
In that case, the question of vires of the Madras Agriculturists Relief Act was 'before the Court. This Act was intended to give relief to the agriculturists in debt. It provided for scaling down all debts payable by agriculturists. It also provided that where an agriculturist paid to his creditor twice the amount of the principal, the debt should be deemed to have been discharged. There was no reference in the Act either to Promissory Notes or to Negotiable Instruments. The attack on the vires of the Act was on the ground that it was beyond the competence of the Madras Legislature as it dealt with debts which in large number of cases were based on Promissory Notes, which was within the exclusive field of legislation of the Central Legislature under Entry 28 of List I of the 7th Schedule. The Full Bench of the Madras High Court held that the impugned Act did not trench upon the exclusive powers of the Federal Legislature and the observations quoted above were made in upholding the decision of the Madras High Court. A similar question came up before the Judicial Committee in 74 Ind App 23 = (AIR 1947 PC 60). In that case, the vires of the Bengal Money-lenders Act was questioned on the ground that though 'money-lending and money-lenders' were within the legislative competence of the Provincial Legislature under' Entry 27 of List IT, it trenched upon incidentally on 'Promissory Notes and Banking' which were subject-matters reserved for the Federal Legislature under Entries 28 and 38 of List I. The Judicial Committee inholding that the impugned Act was not invalid because it incidentally trenched on Federal field of legislation quoted with approval the dictum of Gwyer, C. J. quoted above. In coming to the conclusion to which it did, three questions were posed by the Judicial Committee and they were as follows:
'1. Does the Act in question deal in pith and substance with money-lending?
2. If it does, is it valid though it incidentally trenches on matters reserved for the Federal Legislature?
3. Once it is determined whether the pith and substance is money-lending, is the extent to which the Federal field is invaded a material matter?
72. Lord Porter who delivered the judgment held that in pith and substance the transactions were money-lending though a Promissory Note was taken as security. With regard to the second question mentioned above in rejecting the contention that a provincial legislation should be struck down even though it incidentally touched upon a subject in the Federal List, it was held at pp. 42-43 of the Report:
'In their Lordships' opinion this argument should not prevail. To take such a view is to simplify unduly the task of distinguishing between the powers of divided jurisdiction. It is not possible to make so clean a cut between the powers of various Legislatures: They are bound to overlap from time to time. Moreover, the British Parliament when enacting the Indian Constitution Act had a long experience of the working of the British North America Act and the Australian Commonwealth Act, and must have known that it is not in practice possible to ensure that the powers entrusted to the several Legislatures will never overlap.'
In dealing with the third question, it was held that the invasion by provinces into subjects in the Federal List was an important matter and answering the third question, it was observed at p. 43 of the Report:
'No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money-lending but Promissory Notes or Banking? Once that question is determined the Act falls onone or other side of the line and can b' seen as valid or invalid according to its true content.'
73. Applying the tests laid down by the Judicial Committee and the Federal Court, it cannot but be held that even if the impugned Act in providing for execution of warrants, detection of offenders and their apprehension, trenched upon the provincial field relating to maintenance of public order through the Police, such encroachment into the provincial field is only incidental to the main purpose and object of the Act which ,is to raise an Armed Force, to be kept in reserve, which may be called upon to discharge its duties throughout the territory of India and also without and beyond such territory. The overlapping of duties with the Civil Police, such as they are, in the matter of execution of warrants, in detection of offences and in apprehending offenders, is only incidental to the true nature and character of the Act and its object and purpose. Our attention was. also drawn by the Advocate-General to a decision of the Supreme Court : 1959CriLJ660 in which the dictum of Gwyer, C. J. was again quoted with approval and identical views were expressed at pp. 545-546 of the Report
'After the dictum of Lord Selborne in Queen-Empress v. Burab, (1878) 3 AC 889 oft-quoted and applied, it must be held as settled that the Legislatures in our country possess plenary powers of legislation. This is so even after the division of legislative powers, subject to this that the supremacy of the Legislatures is confined to the topics mentioned as entries in the List conferring respectively powers on them. These entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumeratio simplex of broad categories, Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival List, notwithstanding'.
74. Our attention was also drawn by the learned Advocate-General to a decision of the House of Lords 1898 AC 631, in support of his contention that the words 'any other Armed Forces' in Entry 1 of List I were of the widest amplitude, and enabled the Federal Legislature to make the impugned law. In that case Lord Halsbury in interpreting the words 'free from all expenses whatever in connection with the said Tramways' held that the word 'expenses' by itself is a general word and the word 'all' made it amply clear that it included all variety of expenses and also the word 'whatever' served the same purpose. I do not think this decision is of any assistance in dealing with the questions with which we are concerned in this appeal, as the interpretation of the words was made in the context of the particular Statute which was before the Court.
75. In support of the appellant's contention that in raising an Armed Force, the Federal Legislature should be presumed to be raising an Armed Force which it could raise and which was within its legislative competence, reliance was placed by counsel for the appellant on another decision of the Federal Court In the matter of Hindu Women's Right to Property Act, 1937, AIR 1941 FC 72. in which it was held that there was a general presumption that Legislature did not intend to exceed its jurisdiction and that where a Legislature with limited and restricted powers used a word of such wide import as 'property', the presumption must be that it was using it with reference to that kind of property with respect to which it was competent to legislate and to no other, unless the Act was to be regarded as wholly meaningless and ineffective and the word 'property' as used in the Act should be construed as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate.
76. I will now refer to the cases on which Mr. Chatterjee, relied. The first case on which he relied was a decision of the Judicial Committee AIR 1937 PC 91. Reliance was placed on this decision for the proposition that a Legislature should not in the guise of passing any law which it was competent to pass, encroach on any of the subjects which was within the field of another Legislature in the State. It was held in that case that the only limitation on the plenary powers of the Dominion Legislature to determine what shall or shall not be criminal, was the condition that Parliament should not in the guise of enacting criminal legislation in truth and in substance encroach on any of the classes of subjects enumerated in Section 92 of the Constitution Act. I do not see how this decision is of any assistance to the first respondent, having regard to the different sections of the impugned Act to which I have referred earlier in this judgment. Mr. Chatterjee next relied upon a decision of the Judicial Committee, 1896 AC 348, for the proposition that general power of legislation conferred upon the Federal Legislature must be strictly confined to such mattersas are unquestionably of national interest and importance and must not trench upon any of the subjects which are within the scope of provincial legislation unless they attain such dimension as to affect the body-politic of the Dominion. This decision again is hardly of any assistance to the first respondent, because of the view that I have taken that the impugned Act in its pith and substance does not trench upon the exclusive field of the provincial legislation. The last case relied upon by Mr. Chatterjee was a decision of the Supreme Court : 1957CriLJ409 . The passage relied on is at p. 303 of the Report where it has been held that where a law is challenged on the ground of ultra vires, the powers of the legislature had to be ascertained with regard to the true character of the legislation and that one must have regard to the enactment as a whole, to its object and scope and the effect of the provisions, and further that if on such examination, it was found that the Act was in, substance one on a matter assigned to the legislature, it must be held to be valid in its entirety even though it might incidentally trench on matters which were beyond its competence. It was further held:
'It would be quite an erroneous approach to the question to view such a Statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are ultra vires and what are not.'
To my mind, on an application of the principles enunciated above the impugned Act, taken as a whole, cannot but be held to be within the competence of the Federal Legislature.
77. I now turn to the last question in this appeal which, to my mind, is of considerable importance, namely, the right of the first respondent to relief in the writ petition. The trial Court came to the conclusion that although there was no averment in the petition, relating to invasion of any of the rights of the petitioner, relief could be granted to him in the writ petition. As I have noticed in the earlier part of this judgment, there is no averment whatsoever in the petition, alleging invasion of any rights of the first respondent. The first respondent purported to make an application on behalf of the people of West Bengal. He asked for leave under Order 1, Rule 8 of the Code of Civil Procedure, but this prayer was refused. He claims to be a member of the Communist Party of India (Marxist) and he has alleged in his affidavit-in-reply that on January 13. 1971, he was leading a procession of workers belonging to theCommunist Party of India (Marxist) and was stopped and dispersed by the Central Keserve Police Force. It is a well-settled principle that a petitioner cannot get relief under Article 226 unless he satisfies the Court that any of his rights has been invaded, and that he is entitled to appropriate writs and orders for enforcement of a legal right, the existence of which is the foundation of a right to relief under Article 226 of the Constitution. Such a legal right must be a right of the petitioner himself and not a right of persons who are not before the Court. It is a cardinal principle in proceedings under Article 226 of the Constitution that the petitioner must succeed on the allegations made in the petition itself, and if on the petition he cannot satisfy the Court that there has been any invasion of his personal rights and that he is entitled to appropriate orders for enforcement of such rights, the petition must fail. On the petition, as it stands, there is nothing to show either that the first respondent is entitled to maintain the petition, or that he is entitled to any of the reliefs asked for by him. The Courts have uniformly followed the practice of ignoring allegation of facts made for the first time in the affidavit-in-reply, knowing quite well that such allegations cannot be controverted, except by a further affidavit which can only be filed by special leave to be obtained from the Court. It is no answer to this question to say that the respondents in the writ petition could have applied for leave to file a further affidavit to controvert the allegation made in the affidavit-in-reply. If relief is to he granted to a petitioner on allegations not made in the writ petition the proceedings under Article 226 of the Constitution would inevitably be involved in an endless stream of counter-affidavits and further-affidavits which ought not to be encouraged. In granting relief to the petitioner on the ground that he was entitled to the relief, the trial Court relied upon a decision of the Supreme Court Venkateswara Rao v. Govt of Andhra Pradesh : [1966]2SCR172 . The facts in that case to my mind, are altogether different from the facts involved in this appeal now he-fore us. The appellant in that case was a President of the Panchayat Samiti. A village had formed a Committee, the appellant being its President, for collecting funds for a health centre. A sum of Rs. 10,000/- was collected and deposited with the Block Development Officer. The appellant represented the village in its dealings with the Block Development Committee and the Panchayat Samiti. There was acquiescence on the part of the members of the Committee to his conduct in raising and depositing the fund. The authorities had also accepted him as aperson authorised to act on behalf of the Committee. It was in these facts that it was held that the appellant was the representative of the Committee and was a trustee of the money collected from the villagers and therefore the appellant had the right to maintain the petition under Article 226 of the Constitution. I do not think that any of these features is present in the facts in the writ petition out of which this appeal arises. The trial Court has also noticed that unless the impugned legislation was enforced against the first respondent, he has no right to challenge the validity of the Act, but then went on to hold that maintenance of law and order was a matter in which all citizens were affected, and therefore the petitioner was entitled to maintain the writ petition. Prima facie, the first respondent had no right to any relief in the petition which he filed. But even taking into consideration the allegation made by him in the affidavit-in-reply, that he was leading a procession belonging to a particular party and was halted by the Central Keserve Police Force, I have no hesitation in saying that such an allegation does not entitle the first respondent to maintain a writ petition or to obtain any relief on such a petition. He was leading a procession belonging to a party. That party has not come forward to agitate its grievances on a writ petition, nor is there anything to show that the party has authorised him to move the writ petition on behalf of the party. Looked at from any point of view, I am of the opinion that the first respondent is not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution or to obtain any relief on a writ petition moved thereunder.
78. The learned Additional Solicitor-General appearing for the appellant in Appeal No. 408 of 1972 adopted the arguments advanced by the learned Advocate-General and also invited our attention to a Notification issued by the President of India under the Adaptation of Laws Order, 1950, by which, in exercise of the powers under Article 372(2) of the Constitution, the President of India made an order that the laws mentioned in the Schedule to the order shall have effect until repealed or amended by a competent Legislature. One of the laws specified in the Schedule to the Order is the Central Reserve Police Force Act, 1949. It was argued that by virtue of the Presidential Order, the impugned Act is a law in force within the meaning of Article 372(1). Mr. Chatterjee, however, contended that the impugned Act could be continued as a valid law under the provisions of the Constitution, only if it was a valid law and that the President had no authority under the Constitution to continue alaw which was invalid. It seems to me that this is really begging the question. The effect of the Presidential Order mentioned above is that though the impugned Act is a pre-Constitution Act, it is being continued as a valid law after the Constitution came into force.
79. The learned Additional Solicitor-General also relied upon Entry 1 of List I of the 7th Schedule to the Government of India Act. 1935, in support of his contention that the Federal Legislature was competent to pass the impugned Act, although it was for the purpose of raising an Armed Police Force. As I have already dealt with this question earlier in this judgment it is not necessary for me to deal with this question again.
80. For the reasons mentioned above, I hold that the Central Reserve Police Force Act, 1949, was not ultra vires the provisions of the Government of India Act, 1935, and was a valid law when the Constitution of India came into force. I also hold that the President of India was competent to continue the Statute as a valid law under Article 372(1) of the Constitution.
81. Before concluding, I should record that the appeal was very exhaustively argued by the learned Advocate-General for the appellant and also by Mr. A.P. Chatterjee for the first respondent.
82. For the reasons mentioned above, both the appeals succeed and are allowed. I concur in the order made by My Lord.