EMPEROR Vs. BENOARI LAL SARMA

JUDGEMENT

(1.) This is an appeal by the Government of India from a judgment of the Federal Court (Varadaehariar C. J. and Zafrulla Khan J., Kowland J., dissenting) dated 4 January 1943, dismissing an appeal from a judgment of the High Court at Calcutta (Sir Harold Derbyshire C. J., Khundkar and Sen JJ.) setting aside a conviction of 15 individuals by a Special Magistrate purporting to act under ordinance No. 2 of 1942 promulgated by the Governor-General on 2 January, 1942. The ground upon which the conviction was set aside was that the Ordinance was ultra vires. The question is largely academic, for upon ordinance 2 being declared by the Federal Court to be ultra vires, Ordinance 19 of 1943 was promulgated to replace it. But in view of the elaborate argument that has taken place and the way in which the topic has been dealt with in the judgments in India, their Lordships think that the better course is to decide the question whether ordinance 2 is invalid, especially as this may be of assistance in deciding other questions which may arise hereafter as to the validity of Ordinances made, in cases of emergency, by the Governor-General under the authority of S. 317 and para. 72 of Sch. 9, Government of India Act, 1935.

(2.) Their Lordships must, however, make a preliminary observation on the way in which the issue of the validity of the Ordinance has been dealt with by the Indian Courts. The appeal from the Special Magistrate who convicted the accused was brought to the High Court under its criminal revisionary jurisdiction by a petition for revision under Ss. 435 and 439, Criminal P. C. This assumes that the Court below was a valid inferior Court whose decision calls, in the view of the appellants; who were convicted and sentenced by it, for revision. But if the Special Magistrate who tried the case was a valid Court, duly authorised by the Ordinance, then by the very terms of the Ordinance there is no appeal to the High Court. Sen J., at the beginning of his judgment in the High Court, points this out very clearly. If, on the other hand, the Ordinance had no validity, the Special Magistrate was in the same position as a private person who took upon himself to conduct a trial of the appellants and to sentence them to imprisonment without any authority at all. In this latter alternative, the remedy of release by process in the nature of habeas corpus (S. 491, Criminal PC) would be the appropriate remedy. Their Lordships content themselves with pointing this out, without seeking to dispose of the litigation on this ground, as in their opinion the matter can be satisfactorily dealt with by considering whether the objections taken to the Ordinance have any validity.

(3.) The Governor-General purported to make and promulgate the Ordinance under a power conferred on him by para. 72 of sch. 9, Government of India Act, 1935. That paragraph -which must, of course, be read in the light of the India and Burma (Emergency Provisions) Act, 1940 (whereunder the operation of the words "for the space of not more than six months from its promulgation" was suspended during the period therein specified)- provides as follows: "73, The Governor-General may, in cases 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, for the space of not more than six months from its promulgation, 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." It is to be observed that the paragraph does .not require the Governor-General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2 January, l942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7 December; Rangoon had been bombed by the enemy on 23 December and again on 25 December: earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation, of premises, and so forth. Their Lordships entirely agree with Rowland J.'s view that such circumstances might, if necessary, properly be considered in determining whether an emergency had arisen; but, as that learned Judge goes on to point out, and, as had already been emphasised in the High Court, the question whether an emergency existed at the time when an Ordinance is made and promulgated is a matter of which the Governor-General is the sole judge. This proposition was laid down by the Board in 58 IA 1691and is plainly right. On 3 September 1939, the date on which war was proclaimed between His Majesty and Germany, the Governor- General, acting under S. 102, Government of India Act, 1935, had proclaimed that "a grave emergency exists whereby the security of India is threatened by war" and thereupon the Indian Legislature acquired power to make laws for a province with respect to any of the matters enumerated in the "Provincial Legislative List," with the result that the Governor-General, acting under para. 72 of sch. 9, had in case of emergency the same width of Legislative power.