KALYANAM VEERABHADRAYYA Vs. STATE OF TAMIL NADU

JUDGEMENT

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

(2.) The maintenance of Public Order Act, 1947 (Madras Act I [1] of 1947), hereinafter called "the Act" in the course of this judgment, received the assent of the Governor-General on 11th March 1947 and was first published in the Fort St. George Gazette on 12th March 1947. Under Section 1, Sub-clause (3) of the Act it came into force at once. Under Sub-clause (4) it remains in force for a period of one year; but under that Sub-clause the Provincial Government is empowered from time to time by notification in the Fort St. George Gazette to extend the continuance of this Act for a further period or periods not exceeding one year in the aggregate if in their opinion it is expedient so to do. On the expiry of the Act the provisions of Section 8, Madras General Clauses Act are made applicable, as if the Act had then been repealed. Before the expiry of the period of one year from the commencement of the Act the Provincial Government by a notification in the Fort St. George Gazette extended the duration of the Act for a further period of one year commencing from 12th March 1948 (Vide, G. O, No. 446, General dated 27th February 1948, published in the Fort St. George Gazette of 2nd March 1948). This notification, it would be noticed, was issued before the expiry of the period of one year from the commencement of the Act. Sub-clause (4) of Section 1 of the Act was amended by the Madras Maintenance of Public Order (Amendment) Act, 1948 (Act XVII [17] of 1948) by substituting for the words "for a further period or periods not exceeding one year in the aggregate" the words "for a further period or periods not exceeding three years in the aggregate." This Amending Act received the assent of the Governor General On 17th August 1948 which was first published in the Fort St. George Gazette Extraordinary on 20th August 1948. The life of the Act was further extended by another notification for a period of one more year from 12th March 1949. (Vide, G. O. Mis. No. 594, (public General) dated 4th March 1949) by reason of this further extension the Act continues in force, if the notifications are valid, till 12th March 1950. The orders of detention now in question were made during the period commencing from 12th March 1948. In Jatindranaih Gupta v. Province of Bihar, (1949) 12 F.L.J. 225: (A.I.R. (36) 1949 F. C. 175: 50 Cr. L. J. 897), the Federal Court held that the power delegated to the Provincial Government to extend the duration of the Bihar Maintenance of Public Order Act, 1947, on a resolution passed by the Legislative Assembly and agreed to by the Bihar Legislative Council, with or without modifications, was invalid, and that the said Act ceased to have operation on the termination of the period of one year from the commencement of that Act. This decision was pronounced on 28th May 1949. Following the decision of the Federal Court the Calcutta High Court declared in Badal Bose v. Chief Secy. Govt. of West Bengal, 53 C. W. N. 728, that a similar power of extending the life of an Act by a resolution of the Provincial Legislature contained in the West Bengal Security Act, 1948, was invalid. This decision was pronounced on 27th June 1949. After these two decisions the Government of Madras promulgated the Ordinance of 11th August 1949, Madras Ordinance No. 1 of 1949, with a view to remove doubts regarding the validity of the continuance of the Madras Maintenance of Public Order Act, 1947, and also to amend the Act. The Legislature in the Province was in session until it was prorogued by the Governor on 2nd August 1949. The Ordinance was promulgated on 11th August 1949, as the Legislature in the Province was not in session, and as the Governor of Madras was satisfied that immediate action was necessary for the purpose of removing doubts regarding the validity of the continuance of the Madras Maintenance of Public Order Act, 1947, and for amending it. The Ordinance was promulgated after the instructions of the Governor-General were obtained in pursuance of the proviso to Section 88(1), Government of India Act, 1935. It was issued by the Governor in exercise of the powers conferred upon him by Section 88(1), Constitution Act. The Ordinance consists of four sections. Section 1 contains the short title, and Section 2 declares that the Madras Maintenance of Public Order Act, 1947, remained in force on and from 12th March 1948 and shall continue to remain in force so long as the Ordinance remains in operation. It also amends Section 1 of the Act by omitting Sub-section (4). Section 3 validates the Madras Maintenance of Public Order (Amendment) Ordinance, 1948, and the Madras Maintenance of Public Order (Amendment) Act, 1948, Act XVII [17] of 1948, and provides that they shall not be questioned on the ground that the Acts amended thereby were not in force at the time when the amending Ordinance was promulgated or the amending Act was enacted. Section (3), Sub-clause (b) is intended to validate the action taken by the Provincial Government on and after 12th March 1948 in accordance with the provisions of the Act. It states: "No action or proceeding taken, no notification issued, no order made, and nothing done, by any authority in accordance with the provisions of the said Act at any time on or after 12th March 1948 shall be questioned on the ground that the said Act was not in force at that time." Section 4 of the Ordinance introduces a new section, Section 4-A in the Act:. It is presumably intended to nullify the effect of certain decisions of this Court which have taken the view that if the grounds of detention are vague and indefinite, or if there was inordinate delay in communicating the grounds to the detenu as required by Section 3 (1) of the Act, the order of detention could not be justified. The new Section 4-A inserted by the Ordinance is as follows; "No order of detention made in respect of any person in pursuance of any of the foregoing provisions at any time, whether before, on, or after, 12th March 1918, shall be deemed to be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency, or any delay, in any communication made to such person under this Act." This short summary of the provisions of law which have to be considered in this judgment will enable one to appreciate the contentions urged on either sides. On behalf of the petitioners the main contention urged was that in view of the decision of the Federal Court which construed the provisions of the Bihar Act and held that the delegation was improper, it followed on the same reasoning that the delegation contained in Section 1 (4), Madras Act was equally invalid, and that at the time when the detention orders in these cases were passed, there was no law in force authorising the authority concerned to make the orders of detention, which are now in question. The petitioners' learned counsel urged that Ordinance No. 1 of 1949 was promulgated by the Governor by fraudulent exercise of the power vested in him under the Constitution Act, as the Governor intentionally prorogued the Legislature of the Province while in session with a view to clothe himself with a power of issuing an Ordinance under Section 88(1), Constitution Act. It is also invalid as no circumstances existed which justified immediate action and the issue of an Ordinance. As the Act itself ceased to be in force on 12th March 1948 the amendments sought to be effected by the Ordinance are of no legal effect, as there can be no amendment of an Act which did not exist. Nor is it possible to remove doubts in an Act which ceased to be in force. For this contention also reliance was placed on the decision of the Federal Court on behalf of the petitioners.

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