Find a Lawyer

Criminal Miscellaneous No. 3162 of 1965, decided on 10th December 1965.

r. 206 read with Defence of Pakistan Ordinance (XXIII of 1965), S. 3‑President of Pakistan whether cannot delegate or entrust to Central Government function of framing Rules under Ordinance‑Rule 206, whether in excess of authority delegated to Central Government ‑ Constitution of Pakistan (1962), Art. 30.

In a writ petition the contention was that the Defence of Pakistan Rules were framed under section 3 of the Defence of Pakistan Ordinance, 1965 by the Central Government, which was an executive authority whose function was to execute and implement the laws as framed by the Legislature of the country, and since the function of rule‑making was legislative in nature in the form‑of subsidiary legislation, it could not be delegated or entrusted to the Central Government, particularly when there was no constitutional provision empowering the President to make such a delegation. It was further argued that assuming the President had the implied power to make such. a delegation, it could not be exercised in excess of authority so delegated, and since there was nothing in the Ordinance itself to indicate that the Central Government could frame rules regarding grant of bail, rule 206 of the Rules was as such ultra vires of the Central Government:

Held, there is always a provision regarding subordinate or ancillary legislation whereby the Legislature delegates powers to‑an outside authority or agency to frame rules for the purposes of carrying out the objects of the Act itself and every Act passed by the Legislature itself contains such a provision to which the Defence of Pakistan Ordinance 1965, which is more or less on the pattern of Defence of India Act, 1939, is no exception. A constitutional power may be held to imply a power of delegation of authority which is necessary to effect its purpose and to this extent delegation of power may be taken to be implicit in the exercise of that power. This is on the principle that everything necessary to the exercise of a power is implied to the grant of the Power. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:

(a) by the authority mentioned in the Act, and

(b) that they are within the scope of the power delegated therein.

Judged by the above standard there is no gainsaying the fact that the Defence of Pakistan Rules, 1965 were framed by the authority, i.e., the Central Government, mentioned in the Defence of Pakistan Ordinance, 1965, within the scope of the delegated powers. The scope has been mentioned in sections 3 and 4 of the Ordinance. Considered in the context of the scheme of things, envisaged by the Ordinance and the Rules framed there under, rule 206 of the Defence of Pakistan Rules is within the scope of the rule‑making powers of the Central Government and is not in any way in excess of its delegated powers.

In re: Art. 143, Constitution of India etc. A I R 1951 S C (Ind.) 332; Brohi's Fundamental Law of Pakistan, p. 184; Sobho Gyanchandani v. Crown P L D 1952 F C 29; Aftab Nasir v. Fazal Bibi P L D 1965 Lab. 550; Mahabir Sahu v. Emperor A I R 1947 Pat. 16; V. M. S. Md. & Co. v. State of Madras A I R 1953 Mad. 105; East & West Steamship Co. v. Pakistan P L D 1958 S C 41; M. R. Rafi‑ud‑Din and others v. Chief Settlement and Rehabi litation Commissioner P L D 1964 Lab. 539; Muhammad Sher v. Union Council of Dhudial P L D 1965 Lab. 206 and Haji Ghulam Zamin and another v. A. B. Khondkar and others P L D 1965 Dacca 156 ref.

Delegation of legislative powers‑Scope.

Raja Muhammad Muzaffar for Petitioners.

Aslam Riaz Hussain Assistant Advocate‑General assisted by Kh. Saeed‑ul‑Hassan for the State.

Date of hearing: 10th December 1965.

This is a petition for bail under section 498 read with section 561‑A, Cr. P. C., filed on behalf of Humayun Khan Head Constable and nine Foot Constables of Jhang Police, who have been challaned under rule 47(a) of the Defence of Pakistan Rules. Their bail applications were rejected in the, first instance by the Cantonment Magistrate before whom they are standing trial, and subsequently by the Additional Sessions Judge, Lahore, vide his order dated 20th November.1965. They have now approached this Court.

2. Two similar petitions were heard and dismissed by me yesterday in the presence of the learned counsel for the petitioners; who sought an adjournment on the plea that he wished to challenge the constitutionality of the Defence of Pakistan Rules whose contravention was alleged against the petitioners and wanted time to look up some authorities. Consequently, I adjourned the case which has been argued before me today by the learned counsel on behalf of the petitioners and the learned Additional Advocate‑General assisted by Kh. Saeed‑ul‑Hassan on behalf of the State.

3. It was contended by the learned counsel for the petitioners that the Defence of Pakistan Rules were framed under section 3 of the Defence of Pakistan Ordinance, 1965 by the Central Government, which was an executive authority whose function was to execute and implement the laws as framed by the Legislature of the country, and since the function of rule‑making was legislative in nature in the form of subsidiary legislation, it could not be delegated or entrusted to the Central Government, particularly when there was no constitutional provision empowering the President to make such a delegation. It was further argued that assuming the President had the implied power to make such a delegation, it could not be, exercised in excess of authority so delegated, and since there was nothing in the Ordinance itself to indicate that the Central Government could frame rules regarding grant of bail, rule 206 was as such ultra vires of the Central Government, which justified invocation of section 498, of the Criminal Procedure Code.

4. In support of these contentions, reliance was placed on A I R 1951 S C (Ind.) 332, Brohi's Fundamental Law of Pakistan page 184 and Sobho Gyanchandani v. Crown (P L D 1952 F C 29). It was argued that since the Constitution of the Islamic Republic of Pakistan was based on the American pattern, of which the doctrine of separation of powers formed the corner stone, delegation of legislative powers to the executive in the absence of any specific constitutional provision being contrary to the very concept of the Presidential system of Government, would not be permissible.

5. As against the above contentions of the learned counsel for the petitioners, it was argued by the learned Assistant Advocate‑General that Article 30 of the Constitution invested the President with unfettered powers of legislation by Ordinances and he could "make and promulgate such Ordinances as appear to him to be necessary to meet the emergency. The only restriction on these powers was the one contained in clause (8) of Article 30 of the Constitution which makes their scope co‑extensive with that of the Central Legislature and since Article 30 invested the Central Legislature with the exclusive powers of legislation for the whole or any part of Pakistan in respect of matters pertaining to the security of Pakistan, the promulgation of the Defence of Pakistan Ordinance was within the legistative competence of the President. It was further argued that the delegation of powers of subordinate legislation was not some thing extraordinary and has always been there as would be clear from similar provisions in the Defence of India Rules framed under section 2 of the Defence of India Act, 1939. Reliance was placed on Aftab Nasir v. Fazal Bibi (P L D 1965 Lah. 550), Brohi's Fundamental Law of Pakistan, page 188, A I R 1947 Pat. 16 and A I R 1953 Mad. 105.

6. The scope of delegation of legislative powers has been discussed by Mr. A. K. Brohi in his famous book "Fundamental Law of Pakistan" and in fact most of the authorities cited by both sides have been referred to and discussed in that book. The d question of excess of delegation has also been discussed in East and West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41). These authorities were also referred to and discussed by a Division Bench of this Court in M. R. Rafi‑ud‑Din and others v. Chief Settlement and Rehabilitation Commissioner (P L D 1964 Lah. 539) and also in Muhammad Sher v. Union Council of Dhudial (P L D 1965 Lah. 206), Muhammad Yaqoob Ali, J., being common to both the Division Benches. The question of delegation of legislative power was also considered by a Full Bench of the East Pakistan High Court in Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 156).

7. It is not disputed that Article 30(4) of the Constitution gives the President vast and 'unfettered power of legislation in time of emergency through Ordinances, in spite of the fact that the National Assembly of Pakistan may not only be in existence but also in Session. He can make and promulgate such Ordinances as appear to him to be necessary to meet the emergency. This may be an extraordinary provision but is made to be invoked in extraordinary circumstances, and further that the legislative competence of the President does not exceed the legislative competence of the National Assembly of Pakistan which under Article 131 includes the power to make laws for the whole or any part of Pakistan in relation to the security of Pakistan. While invoking his powers under Article 30(4) the President of Pakistan promulgated the Defence of Pakistan Ordinance 1965. Section 3, subsection (t) of the Ordinance under the heading 'emergency powers', refers to the rule‑making powers, and reads as follows:‑

"3(l) The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community."

Section 4 of the Ordinance reads as follows:

"4. Any rule made under section 3, and any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Ordinance or in any instrument having effect by virtue of any enactment other than this Ordinance."

Section 14 of the Ordinance deals with jurisdiction of the ordinary Courts during the period of emergency and reads as follows:‑

"14(1) Except as may be provided in this Ordinance or in any rule made there under or in any order made under any such rule by the Central Government or the Provincial Government or by an officer not below the rank of Collector empowered under subsection (4) or subsection (5) of section 3 to make such order, the ordinary criminal and civil Courts shall continue to exercise jurisdiction.

(2) Any provision in any such rule or order as aforesaid to the effect that the decision of any authority, not being a Court, shall be final or conclusive shall be a sufficient excepting provision within the meaning of subsection (1)."

8. In exercise of the powers conferred by section 3 of the Ordinance, the Central Government framed the rules known as, the Defence of Pakistan Rules, and it would be advantageous to reproduce the relevant rules. Rule 41(6) defines the expression "prejudicial act". The allegations against the petitioners are covered by the last part(s) of the rule. Thus the prejudicial act alleged against the petitioners would mean an act which is intended or is likely otherwise to prejudice the efficient prosecution of war, or the security, the public safety or interest or the defence of Pakistan. The prohibition to do a prejudicial act is contained in rule 47(l)(a) which reads thus: "47(1)(a) No person shall, without lawful authority or excuse, do any prejudicial act. The doing of prejudicial act is made punishable under rule 47(5) which reads as follows: "47(5) If any person contravenes any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both."

provided that:

(a) . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . .

The (cognizance of contravention of the rules and mode of proceedings in that regard is given in rule 205, whereas rule 206 makes a special provision regarding bail and is reproduced below "206. Notwithstanding anything contained in the. Code no person accused or convicted of a contravention of these rules or orders made there under, if in custody, be released on‑ bail or on his own bond, unless:

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made there under as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention."

The last rule 208 envisages the authorities, officers or persons empowered by the Ordinance or the rules to make any order to take necessary steps including the use of force for securing compliance with the orders, or preventing any contravention of such order, Where there is no authority so empowered, the Central Government has been authorised to take the necessary steps including the use of force to secure compliance of an order or prevent breach of any provision, including the power to enter upon any land or any other property.

9. Apart from the issues of constitutionality of the rules raised by the learned counsel for the petitioners, the petitioners have no case on merits, as the allegations against them are fully covered by rule 41(6)(s) punishable under rule 47(5) and in fact no reasonable grounds were made out for the satisfaction of this Court to believe that the petitioners are not guilty of such contravention as envisaged by rule 206(a)(b).

10. Coming now to the constitutionality of the rules on the grounds of excess of delegation, it may be observed that the position as it finally emerges from the various authorities mentioned earlier can be assumed up as follows:‑

that there is always a provision regarding subordinate or ancillary legislation whereby the Legislature delegates powers to an outside authority or agency to frame rules for the purposes of carrying of the objects of the Act itself, and every Act passed by the Legislature itself contains such a provision to which the Defence of Pakistan Ordinance, which is more or less on the pattern of Defence of India Act, 1939, is no exception.

Most of the other authorities on the point deal with delegation of powers in peace‑time legislation, but authorities are not wanting which may be dealing with a similar or identical situation, as the instant one. Mr. Brohi has referred to some of these at page 188 of his book. Similar rules were framed by the Central Government under section 2 of the Defence of India Act, 1939, which very much corresponds to section 3 of the Defence of Pakistan Ordinance: Some regulations under the Defence of India Act were challenged in Mahabir Sahu v. Emperor (A I R 1947 Pat. 16), which conferred powers on the Secretary of State to intern any person "of hostile origin or association" and was held to be a valid law. Similarly, in Delhi Laws Act A I R 1951 S C 332, on which reliance was also placed by the learned counsel for the petitioner, the following view expressed by Mukarji, J., at page 397 was approved by Mr. Brohi.

"A constitutional power may be held to imply a power of delegation of authority which is necessary to effect its purpose and to this extent delegation of power may be taken to be implicit in the exercise of that power. This is on the principle that everything necessary to the exercise of a power is implied .in the grant of the power."

In the same case it was observed by Fazal Ali, J.

"Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it, is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation."

It further stated:

"Therefore, there are only two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self effacement."

In the words of Mr. Brohi, "the only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in‑each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:

"(a) by the Authority mentioned in the present Act, and

(b) that they are within the scope of the power delegated therein."

11. Judged by this standard there is no gainsaying the fact that the rules were framed by the authority, i.e., the Central Government in the instant case mentioned in the Defence of Pakistan Ordinance, within the scope of delegated powers. The scope has been mentioned in sections 3 and 4 as reproduced above. Constitution of Special Tribunal is also envisaged by section 9, Special Tribunals for the trial of offences punishable with death, transportation or imprisonment which may extend to seven years has been provided in section 9. As stated earlier, under section 4 of the Ordinance any rule made under section 3 or any order made there under shall prevail even if it is inconsistent with anything contained in any enactment. Rules 202, 203 and 204 invest police officers with powers of arrest of certain persons in certain circumstances. Rule 205 deals with the cognizance of contravention of rules and the mode of proceedings. Some contraventions have been made triable by a Court of Sessions or a Magistrate of First Class. Rule 206 deals with grant of bail. Considered in the context of the scheme of things, envisaged by the Ordinance and the rules framed there under, I am definitely of the view that rule 206 is within the scope of the rule‑making powers of the Central Government and is not in any way in excess of its delegated powers. The argument therefore, stands repelled.

12. In view of the foregoing discussion the petition is dismissed.

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.