PT BAIJNATH Vs. SUPERINTENDENT, CENTRAL JAIL

JUDGEMENT

(1.) The question which we have to answer is whether the Governor-General had power validly to enact Section 2 of ordinance 14 of 1943. His powers of legislation are derived from the provisions of Section 72 set out in Schedule 9, Government of India Act, 1935. These provisions as amended are as follows: The Governor-General may in oases of emergency make and promulgate ordinances for the peace and good government of British India or any part thereof and any ordinance so made shall have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act. There is a provision in the India and Burma (Emergency Provisions) Act, 1940, that the Governor-General shall not be subject to certain restrictions imposed on the Indian Legislature but it is sufficient for the purpose of this judgment to point out that the powers of the Governor- General are at least as great as those of the Indian Legislature. No greater restriction is imposed upon him. It is true that he can make and promulgate ordinances only in cases of emergency but as he is the sole judge of the existence of an emergency that fact imposes no external restriction upon him?I do not suppose that it could be suggested that any Court of law could arrogate to itself the right to sit in judgment upon the merits of any ordinance and hold it to be invalid upon the ground that it was not for the peace and good government of British India. It is not for the Courts to pronounce upon the expediency of legislation. There can be no doubt in my judgment that the Governor-General has all the legislative powers of the Indian Legislature. It has not been argued before us that the Indian Legislature could not have passed an Act containing the provisions of Section 2, Ordinance 14 of 1943. It follows quite simply that the Governor-General could make and promulgate an Ordinance containing those provisions.

(2.) It has, however, been argued before us that Section 2, Ordinance 14 of 1943, is invalid for two reasons, namely, (1) that the Governor-General cannot make an ordinance with retrospective effect and (2) that he cannot expressly repeal (or, I suppose, amend) an Act of the Indian Legislature. Learned Counsel for the applicant referred us to the case in Shib Nath V/s. Porter and to the judgment of Zafrulla Khan J. in Emperor V/s. Sibnath Banerjee . As the learned Judge in the latter case refrained from expressing any final opinion upon the validity of the provisions with which we are concerned, his remarks must be regarded not as authoritative but as tentative. In the Calcutta case the learned Judges unanimously repelled the contention that an Ordinance could not have retrospective effect and I can see no reason for differing from them. As the Legislature is concerned with rights, obligations and liabilities only as they will be after a law is made, it is difficult to see how any legislation can be retrospective otherwise than in form. When the Legislature purports to repeal or amend a law with retrospective effect it does not and cannot change the past in fact; it adopts merely a convenient mode of defining the position in the future and if the future position is within its control, it does not exceed its powers because it decrees that that position is to be defined upon the assumption that the law in the past was otherwise than in fact it was. In the particular instance with which we are dealing the ordinance provides in substance that certain persons are liable to detention in the future although they were not properly so liable in the past and that any rights or liabilities which might have accrued from their past illegal detention shall no longer be enforceable. It cannot be doubted that the Governor-General had power to make these provisions and his power is not affected by the fact that he expressed his intention in a particular manner. I hold that Section 2 of the Ordinance is not invalid, because it purports to have retrospective effect.

(3.) In his second contention learned Counsel has the support of two of the three learned Judges who decided the case in Shib Nath V/s. Porter . His argument is based mainly upon the alleged authority of Attorney-General for Ontario v. Attorney-General for the Dominion of Canada (1896) 1896 A.C. 348. The facts of that case were that the Dominion Parliament had passed an Act giving every county and city in the Dominion the option of imposing prohibition upon the sale of intoxicating liquor and this was followed by an Act passed by the Provincial Legislature of Ontario giving cities and towns in the province the option of imposing partial prohibition on such sale. The question was whether the Provincial Act was valid. Their Lordships of the Privy Council decided that both Legislatures had power to make laws of this nature and although the Dominion law would prevail in the event of conflict, there was in fact no conflict because it depended upon the option of each locality which law, if either, should come into operation. This decision itself is not relevant to the question which we have to consider but it appears that an argument was addressed to their Lordships upon the basis of the fact that the Dominion Act had purported expressly to repeal a previous provincial Act on the same subject and their Lordships said that it appeared to them that neither the Parliament of Canada nor the provincial Legislatures had authority to repeal statutes which they could not directly enact. It is this proposition which is said to support the contention that the Governor-General could not repeal (or amend) a section in the Defence of India Act which was passed by the Indian Legislature.