G NARAYANASWAMI NAIDU Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) These are applications filed under Section 491 of the Criminal P. C. on behalf of certain persons ostensibly detained under the provisions of Madras Act I of 1947, praying that they may be set at liberty on the ground that they were being illegally and improperly detained. Some of the applications were filed on or before 25 May, 1948, while the rest of the applications were filed subsequent to that date. Objection was taken that the applications were not maintainable on account of Section 16-A of the Act which was inserted by Clause 4 of Ordinance No. II of 1948 promulgated by His Excellency the Governor on 25 May, 1948. It runs thus: Nothing in Section 491, Sub-sections (1) and (2), of the Criminal P. C., 1898, shall apply to any person detained, or deemed to have been detained, under Section 2 of this Act by the Provincial Government or any officer or authority authorized by them in that behalf. In reply to this objection, learned Counsel for the petitioners raised objections to the validity of Section 16-A of the Act and also contended that in any event it would not apply to any of the petitions either actually pending on the date of the Ordinance or filed subsequently. He set forth his contentions in the following memorandum: In the matter of Criminal Miscellaneous Applications made under Section 491 of the Criminal Procedure Code and awaiting disposal or in the process of filing in the Registry of the High Court Office, the New Madras Ordinance The last clause therein has been pleaded in Bar and some of the applications recently filed have been returned. In support of the position, namely, that the High Court's jurisdiction notwithstanding the new Ordinance remains intact, the following legal submissions are sought to be made: 1. The New Madras Ordinance, that part of which seeks to exclude the jurisdiction of the High Court under Section 491, Criminal Procedure Code, is ultra vires of the Governor (and the Provincial Legislature) as the High Court's powers shall remain paramount subject only to the legislative Powers of the Governor-General in Council. The subject's rights under Section 491 are substantive rights and not of the nature of the procedural rights and do not fall under either list 2 or 3 of the Government of India Act. The clause numbered 16(a) of the New Ordinance is manifestly repugnant to Clause 44 of the Letters Patent as well as Section 223 of the Government of India Act, 1935. It is also contrary to the spirit of the Instrument of Instructions to the Madras Governor.

(2.) In any event the New Ordinance limiting the powers of the High Court cannot affect the pending cases or the vested right under Section 491, Criminal Procedure Code, of the persons already detained. If it was meant to apply to the pending cases, or in other words to operate retrospectively, the Ordinance would have stated it as the main Act itself has done in Section 16, clause a, where the pending cases have been expressly referred to. Under all circumstances the High Court's Power cannot be taken away and must remain supreme in order to see, by directions of the nature of habeas corpus, that the particular person or persons detained or deemed to be detained actually fall under the provisions of the given Act. Where any case is seen to be outside the four corners of the Act or vitiated by mala fides on the part of the detaining authority, then High Court alone can set matters right under Section 491, Criminal Procedure Code. When the applications came on for hearing before Yahya Ali, J., during the vacation on 1 June, 1948, the learned Judge considered that as the objections raised appeared to be of vast constitutional and public importance, they should be heard and disposed of by a Bench rather than by him sitting singly. He therefore adjourned all the applications and directed that the papers may be placed before me for orders. I thought it desirable that the cases, in so far as it raised points of constitutional importance, should be heard by a Special Bench of three Judges. Accordingly, a Special Bench was constituted, and many points were argued at length by several learned Counsel on behalf of the petitioners and by the learned Advocate-General on behalf of the Government. 2. As the validity of the Ordinance generally and Clause 4 of the Ordinance inserting Section 16-A in particular have been impugned, it is necessary to deal with these objections at the outset. The validity of the Ordinance as a whole is attacked on the ground that the conditions laid down by Section 88, Sub-section (1) of the Government of India Act have not been complied with. Section 88, Sub- section(1) runs thus: If at any time when the Legislature of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the Governor-General, promulgate any such Ordinance if an Act of the Provincial Legislature containing same provisions would under this Act have been invalid, unless, having been reserved for the consideration of the Governor-General, it had received assent of the Governor-General. The preamble to the Ordinance is as follows: Whereas the Legislature of the Province is not in session, and the Governor of Madras is satisfied that immediate action is necessary for the purpose of amending the Madras Maintenance of Public Order Act, 1947; And whereas the instructions of the Governor-General have been obtained in pursuance of the proviso to Section 88, Sub-section (1), of the Government of India Act, 1935; Now, therefore, in exercise of the powers conferred by Section 88, Sub-section (1) aforesaid, the Governor hereby promulgates the following Ordinance.

(3.) Mr. A.K. Pillai, learned Counsel for some of the petitioners developed his contention on this point in the following manner: The Legislature of a Province must be deemed to be in session till it is dissolved or prorogued. The Legislature of the Madras Province was prorogued only on 24 May, 1948. The Ordinance was promulgated on the next day, that is, 25 May, 1948. The action of the Governor under Section 88 must be taken not in his individual discretion but on the advice of his Ministers. The Governor cannot seek or obtain the advice of his Ministers or instructions from the Governor-General till the Legislature ceases to be in session. Having regard to the short interval between the prorogation of the Legislature and the promulgation of the Ordinance, it was extremely improbable, if not impossible, that the Governor should have obtained the advice of his Ministers and then obtained instructions from the Governor-General, after the prorogation of the Legislature. At the beginning of the hearing, there was some doubt as to when exactly the two Chambers had last met, but the learned Advocate-General informed us that the Legislative Assembly met last on 28 April, 1948, and the Legislative Council met last on 3 May, 1948, and the meeting of both Chambers stood adjourned sine die.