M R VENKATARAMAN Vs. COMMISSIONER OF POLICE, MADRAS

JUDGEMENT

(1.) MADRAS Act I of 1947 designated the "Madras Maintenance of Public Order Act of 1947" came into force on 12.3.1947 and was intended to be in force for a period of one year. But by sub clause (4) of Section 1 the Legislature had authorised the Provincial Government to extend the operation of the Act by means of notification in the Provincial Gazette; and this was done by the notification of the Provincial Government for a period of one year more, on 11th March 1948, which meant that the Act was to continue till the 12th March 1949. The Act had also provided that the power of arrest and detention under the Act could be delegated by the Provincial Government to District Magistrates and to the Commissioner of Police of the City of Madras and by G. O. 907 dated 2lst March 1947 this power was delegated to the Commissioner of Police of the City of Madras. Acting under that delegation, an order under Section 2 (1) (a) of the said State was issued by the Commissioner of Police against the petitioner herein on 1.4.1948 and in pursuance to that he was arrested on 17.8.1948 and was detained in a jail. On 27.10.1948 he applied, under Section 491, Criminal Procedure Code for orders in the nature of a writ of habeas corpus praying that as his detention was illegal, he should be released forthwith. This application, criminal Miscellaneous Petition No. 1910 of 1948, came on before our learned brothers Subba Rao and Mack, JJ., who by their judgment dated 27.10.1948, dismissed the application holding that the detention was legal. Thereafter, on 28th May 1949 the Federal Court of India in a decision reported in 'Jatindra Nath v. Province of Bihar', 1949 -2 Mad LJ 356, ruled that the extension of the operation of an Act, similar to the Madras Maintenance of Public Order Act, by an executive order, or a resolution of the legislatures of a Province, was "delegated legislation" which such legislatures had no power to delegate. Therefore in order to remove certain doubts regarding the validity of the extension by notification, the Governor of Madras promulgated Ordinance No. 1 of 1949 on 11.8.1949 which came on for judicial consideration by a Bench of this Court consisting of Satyanarayana Rao and Basheer Ahmed Sayeed, JJ., in Kalyanam Veerabhadrayya In re. 1949 -2 Mad L Jour 663. The learned Judges were of opinion that certain portions of Ordinance I of 1949 were invalid and ultra vires. On 15.10.1949 the Governor of Madras again promulgated ordinance IV of 1949 and questions regarding its validity and its retroactive nature came on for consideration before one of us and Basheer Ahmed Sayeed, J., and the decision reported in Valayudam In re , 1950 Mad WN 24 is to the effect that Ordinance 17 of 1949 was 'intra vires.' Thereafter, on 9 -12 -49 the Madras Legislature passed Act XXIII of 1949 which confirmed ordinance IV of 1949 in most of its essential details. By Section 19 (1) of Madras Act XXIII of 1949 it was enacted that any order made, or any action taken, under the Madras Act I of 1947, which was immediately in force before the 12th March 1948, shall, subject to any subsequent modification or cancellation, be deemed to be an order made under the provisions of that Act. There were similar provisions in Ordinance IV of 1949 which this Court held was validly promulgated. It was laid down that there was no prohibition under the Government of India Act 1935. Against the passing of 'ex post facto' legislation or retroactive legislation even in the field of criminal law and therefore the Governor could promulgate an Ordinance creating a crime for the first time and give it retrospective effect and such an Ordinance will have the same force and effect as an Act of the Provincial Legislature. Therefore Section 1, Clause (3), Section 4.A, and Section 19, of the Madras Ordinance IV of 1949, were not 'ultra vires'. Under Section 88, Clause (2) of the Government of India Act 1935, the Ordinance promulgated by the Governor during the recess of the Legislature has to be laid before the Provincial Legislature within six weeks of its promulgation; and if a resolution disapproving it has been passed by the Legislative Assembly and agreed to by the Legislative Council, it will cease to operate. But otherwise such an Ordinance will be valid; and if the Legislature confirms the Ordinance by enacting it, the force and validity of the Ordinance would be just like that of an Act of the Legislature Madras Act XXIII of 1949 confirmed Ordinance IV of of 1949 and therefore in accordance with the decision reported in 'Valayudam In re, 1950 Mad WN 24, it took effect from 12.3.1948 and was retrospective in operation.

(2.) THE first contention urged on behalf of the petitioner is that in view of the decision of the Federal Court reported in Jatindra Nath v. Province of Bihar 1949 -2 Mad LJ 356 the extension of Mad Act I of 1947 for one year after 12.3.1948 was void; and therefore when the petitioner was arrested on 17.8.1948, there was no valid law in force under which he could be arrested and his detention was hence illegal. It was further contended that there was no extension of the delegated power given by G. O. No. 907 dated 21.3.1947 and under those circumstances even the order dated 1.4.1948 was void and inoperative. To this, the answer of the Advocate General was that in view of the passing of Madras Act XXIII of 1919 which was made retrospective in nature, the petitioner's arrest and detention should be deemed to be under the provisions of Madras Act XXIII of 1949 which took effect from and after the expiry of the original term fixed in Madras Act 1 of 1947. The petitioner's counsel countered this argument by saying that it was not competent for the Legislature to validate a void Act which was unconstitutional in its inception. In other words, according to Mr. M. K. Nambiar or the petitioner, granting that the Provincial Legislature had power to enact a statute with retrospective effect and create an offence for the first time retrospectively, still in this particular case since in accordance with the decision of the Federal Court in Jatindra Nath v. Province of Bihar, 1949 -2 Mad LJ 356 original detention under delegated extension was invalid, it is not competent for the Legislature to pass an Act thereby validating a void or an unconstitutional Act. The extension of an Act by a legislative or executive order, says the counsel is a completely null and void one; and that which in its inception was 'ultra vires' and void was unconstitutional and it cannot be amended or set right by a subsequent legislation; if that is done, such an act would be void and would have no effect. Our attention was invited to a number of authorities on this point. In Gooley's 'Constitutional Limitations', VIII Ed., Vol. I, at pages 382 and 383, the consequences if a statute is void are seen discussed in the following terms:

(3.) FROM these passages it is contended that the delegated power to extend the operation of the Act being void as not within the power of the legislature, the subsequent act validating orders passed thereunder are to be considered as null and void. Observations from the speech of Lord Birkenhead, L. C., in 'McCawley v. The King', (1920) AC 691 at p. 704, regarding controlled and uncontrolled legislation were also brought to our notice. From these authorities, Mr. Nambiar contends that Madras Act XXIII of 1949 could not have validated a piece of executive action which was void from the beginning and therefore it would be as if nothing had taken place. In the judgment above referred to; viz., 'Velayudam In Re', 1950 Mad WN 24, this Court has given reasons why the conclusion is arrived at that an 'ex post facto' legislation creating a crime for the first time can be validly made. If that is so, it cannot be disputed that by the operation of Section 19, Madras Act XXIII of 1949, all acts done in pursuance of Madras Act I of 1947 on or after 12.3.1948 will be valid. It is conceded that but for the declaration by the Federal Court on the question of the extension of the Act by delegated legislation such an argument cannot be advanced. In other words, the learned counsel for the petitioner agrees that if the petitioner had been arrested on 17.8.1948 and detained and subsequently a provision like Madras Act XXIII of 1949 was passed by the Provincial Legislature which took effect retrospectively from a date anterior to 17.8.1948, such an arrest and detention would be valid. But since the Federal Court has laid down that delegation of legislative function is invalid, the order of detention cannot be validated. I am unable to find the distinction between the two. Therefore, in my opinion, according to the decision in 'Velayudam In Re', 1950 Mad WN 24 it must be taken to have been held that the petitioner was validly detained on 17.8.1948. In this view I have to hold that the detention of the petitioner was a perfectly legal and valid one before 26.1.1950 when the Constitution of India came into force.