ANTONIUS RAAB Vs. STATE

JUDGEMENT

(1.) THESE are two applications under Section 491, Criminal P. C. in respect of two persons against whom orders have been made under the Foreigners Act. The two persons are Mr. and Mrs. Raab, and it is the case of the Crown that out of them Mr. Raab was, before an order was issued by the Maharaja of Baroda conferring upon him the status of a subject of the Baroda State, a naturalized subject of the Republic of Costa Rica and Mrs. Raab was a Czechoslovak. It is not in dispute that on 8th November 1947, His Highness the Maharaja of Baroda passed an order recognising Mr. Raab as a Baroda State subject, and it is not disputed before us that, if this was a valid order in its inception and is still a valid order, then in that case Mr. and Mrs. Raab will be both subjects of the Baroda State, Mr. Raab, because of the order, and Mrs. Raab because of the provision of international law by which a wife attains the status, as far as nationality is concerned, of her husband. It appears from the evidence that there was a deportation order passed in respect of Mr. and Mrs. Raab before 8th November 1947, but nothing had been done in respect of that order at the time when the Maharaja conferred the status of a Baroda State subject upon Mr. Raab. Subsequent to this order, the Foreigners Act was amended by an Act of the Indian Dominion; but it is not in dispute that the amending Act has no bearing upon the question of the validity of the Maharaja's order when it was passed which was prior to the passing of the Act, and so far as the making of this order is concerned, we will be concerned with the Foreigners Act as it stood before its latest amendment. It appears from the evidence next that in March 1948 there was passed an order against Mr. and Mrs. Raab deporting them and also directing their arrest preliminary to their deportation. We have not this order before us, because we are concerned with the question of the validity of the present orders under which Mr. and Mrs. Raab are detained, and those orders were passed on 8th April 1948. They are under Sections 3 and 11, Foreigners Act. Under Clause (1) of the order, they were to be arrested and taken under police custody to Bombay and detained there. Under Clause (2) of the order, they were to remove themselves from India by such route and steamship as may be arranged in this behalf by the Government of Bombay and thereafter not to return to India, and by Clause (3) of the order they were to remain in detention in Bombay till arrangements for their departure were made. The detention is, therefore, under, Clause (3) of these orders, and the detention will be valid if the orders are valid. If the orders are not valid, both the petitioners are entitled to be set at liberty.

(2.) NOW, the orders in this case are passed under the provisions of the Foreigners Act, Sections 3 and 11 and the sole condition precedent for the validity of the orders, it is not in dispute, is Mr. and Mrs. Raab being foreigners as defined under the Foreigners Act. The Foreigners Act defines a "foreigner" as a person who does not fall under certain categories and the one category with which we will be concerned in the present case is the category of a subject of an acceding State. Baroda is an acceding State, and consequently the question is as to whether Mr. and Mrs. Raab became subjects of the Baroda State upon 8th November and whether the status, if any, conferred upon them by those orders has subsequently been lost by them on account of anything which happened thereafter.

(3.) IT is necessary to bear in mind in considering the question that we are concerned with the period subsequent to the coming into force of the Indian Independence Act. The Crown which has opposed the application has produced before us an order which was passed by the Crown Representative prior to the coming into force of the Indian Independence Act prohibiting the rulers or Governments of States under the suzerainty of His Majesty, the King, from conferring the status of a subject of the State upon any person who was either not a British subject by birth or a British subject by naturalisation or a British protected person. IT has been contended before us that that was a very valid order, and, as a matter of fact, it has been argued before us that notwithstanding the passing of the Indian Independence Act the state of affairs which prevailed after the passing of the order continued even after the passing of the Indian Independence Act, and His Highness the Maharaja or the Baroda Government did not have any power to pass any order conferring upon a person who was not a British subject by birth or naturalisation or a British protected person the status of a subject of the Baroda State. We do not think that there is any force whatsoever in any of these contentions; we do not feel called upon to express any opinion upon the validity of the order which was passed by the Crown Representative before the India Independence Act came into force. The position prior to that Act was that the States were under the suzerainty of the British Crown. This is sometimes referred to as also the paramountcy of the Crown; but immediately the Indian Independence Act came into force, under the provisions of Section 7, Sub-section (1), Clause (b), the suzerainty of His Majesty over the Indian States lapsed, and with it, all treaties and agreements in force at the date of the passing of the Act between His Majesty and the rulers of Indian States. As from the date upon which the Act came into force, which is called the appointed day in the Indian Independence Act, all powers, rights, authority or jurisdiction exercisable by His Majesty on the appointed day in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise, also came to an end. IT is obvious that if at all the order which was passed by the Crown Representative and which forbade the Governments of the Native States from conferring the status of a subject by the State upon certain aliens was a valid order, then it must have been justified because there was power in the Crown Representative to direct accordingly either in virtue of any treaties or agreements which may have been made between the former rulers of the Baroda State and His Majesty, or it must have been justified because of the doctrine of paramountcy. But the position after the Indian Independence Act came into force is that the States became independent, except, in so far as the instrument of accession which was signed by the rulers of the States enabled the Government of the Indian Dominion to exercise certain executive powers in certain fields like external affairs, and except again in so far as because of the provisions of the instrument of accession and the provisions of the Indian Independence Act and the Government of India Act as it was in force at the date when the instrument of accession came into force, the Legislature of the Indian Dominion derived power to legislate in respect of the State on certain matters mentioned in the instrument of accession. We do not think that there could be any other consequence of Section 7, Indian Independence Act than this. IT is obvious that both sovereign legislative and sovereign executive powers had to vest in someone, in respect of the Baroda State, after the Indian Independence Act came into force. The only entities in whom sovereign powers which were not legislative could possibly vest would be the Baroda Government or the Government of the Indian Dominion. Now, what powers vested in the Government of the Indian Dominion, or what legislative powers vested in the Legislature of the Indian Dominion is to be ascertained from the provisions of the instrument of accession and the two Acts which are mentioned above. The rest of the powers must necessarily vest either in the Baroda Government which it will be seen below necessarily means the Ruler of Baroda or in the Baroda Legislature. The executive powers would vest in the Baroda Government, and the legislative powers would vest in whatever is the Baroda Legislature. We are concerned in this case only with the question as to in whom certain executive powers vested. Now, that will be found, in our view, from Section 8, Government of India Act, 1935. Sub-section (1) of the section says, subject to certain provisos with which we are not concerned in the present case, "subject to the provisions of this Act, the executive authority of the Dominion extends to the matters with respect to which the Dominion Legislature has power to make laws, including the exercise of rights, authority and jurisdiction in and in relation to areas outside the Dominion. " Now, it is common ground that the Indian Legislature has, in virtue of the instrument of accession, which has been signed by His Highness, the Maharaja of Baroda, and which has been accepted by His Excellency the Governor General of India, after the Indian Independence Act came into force, power to legislate on the subject of naturalisation. The executive authority of the Dominion, which means, the Government of India, has got, therefore, power to pass orders in regard to naturalisation; but that does not mean that the Baroda Ruler or the Baroda Government has got no power upon the subject. That would be quite clear from Sub-section (2) of the section, which says: "the executive authority of the Ruler of an Acceding State shall, notwithstanding anything in this section, continue to be exercisable in that State with respect to matters with respect to which the Dominion Legislature has power to make laws for that State except in so far as the executive authority of the Dominion becomes exercisable in the State to the exclusion of the executive authority of the Ruler by virtue of a Dominion law. " That means that where a Dominion Legislature has got power to make laws, the Government of India as well as the Ruler of an Acceding State have both power to pass executive orders. To that there is one exception; that is, where the executive authority of the Dominion becomes exercisable in the state to the exclusion of the executive authority of the Ruler by virtue of a Dominion law. That means that if there is any Dominion law owing to which the Ruler of an Acceding State is prevented from exercising executive authority in respect of a matter upon which the Dominion Legislature may legislate, then the power of the Ruler is gone, but not otherwise.