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Miscellaneous Cases Nos. 72 to 77, 91 to 95, 100 to 102, 105, 106, 109, 110, 119 and 120 of 1950 and 2 of 1951 decided on 23rd February‑1951.
It is now settled law that if the Government can satisfy that the order under which a detenu is detained for the time being is valid it does not matter whether the orders passed prior to the last order were valid or invalid.
46 Cr. L. J. p. 559 rel.
Decisions of the Courts of the Indian Republic are not binding on Pakistan Courts but that should not prevent one from referrifig to the legal principles enunciated by them.
------S.2 first Proviso‑Delegation to Provincial Government of powers to extend operation of Bengal Special Powers Ordinance (VI of 1946)‑Ultra vires the Provincial Legislature.
The delegated legislation contained in the proviso to section 2 of East Bengal Ordinance Temporary Re‑enactment Act (VI of 1950) is ultra vires of the Provincial Legislature and the orders made thereunder are illegal.
The power to extend the life of the Act by another six months after its expiry on the 15th of September, 1950, is clearly a legislative power, and this legislative power has been delegated by the proviso to a body other than the one prescribed by the Government of India Act as adapted to Pakistan. Therefore, it is out and out a case of delegated legislation and not a case' of conditional legislation.
The three principal organs of a modern democratic State are the Legislature, the Executive and the Judiciary. Sovereign as they are in their .own spheres, the Constitution from which they derive their authority is above all and advisedly, the constitution prescribes and limits the powers of these respective bodies and each of these has certain essential functions to perform. It is settled law that the Legislature cannot delegate their powers and functions to others, for such delegation would be in contravention of the constitution of the State. It cannot be reasonably argued that the delegated power given to the Government by the proviso in question to re‑enact an Act which expired after the 15th September, 1950 is not a legislative power. If the legislature had fixed the life of the Act at, one year and provided for the Provincial Government to determine at the end of 6 months whether the Act should be in operation for a further period of 6 months, it might have been argued that it was a piece of conditional legislation, but that is not the case here. The legisla ture has, made a mandatory provision in the 1st paragraph of section 2 that the Act shall remain in force for 6 months and as to the period of 6 months subsequent to that it is left to the Government to decide.
On a reference to the first proviso of section 2 of the East Bengal Ordinance Temporary Reenactment Act 1950, it is more than clear that the legislature after the expiry of a period of six months mentioned by them in their legislation in the first para graph reserve to itself no further opportunity of examining the provisions of the Act, and satisfying themselves whether these provisions of an Act enacted by them to be in force for 6 months should die a natural death after the expiry of the said period of 6 months or whether they should be re‑enacted for a further period of 6 months and this they left to the Provincial Government. By empowering the Government in this manner and ‑to this extent by the first proviso to section 2; the legislature has abdicated from its own power and. delegated its own function to a body other than a body constituted by the Government of India Act as adapted to Pakistan for the performance of that very function which it is its essential duty to discharge. By doing so, in effect, they have setup a parallel body to do what the legislature is required to do under the constitution.
The Act as it is without the proviso confers upon Government very wide powers. The duty of the Court must be always to protect the liberty of the subjects and that it can, only do by seeing to it that the Government exercise its powers within the four corners of the statute, that the order is made within the ambit and scope of the Act, and that every formality required by the legislation or for legislation, is complied with before the subject is deprived of his liberty. Moreover if the powers to determine the duration and the power to execute a statute are both transferred to the Government which have already been given very wide powers by the very Special Powers Ordinance, 19‑16, ‑it would be really giving to the same body both the powers to legislate and to execute and that will be‑' in clear contravention of the constitution.
53 C. W . N. (F, R.) at p. 91 ; 53 C. W. N. 728 rel.
5 I. A. 178 ; 7 A. C. 829 ; 49 C. W. N. 178 (1944) ; 53 C.W.N. 545 ; (1931) A. C. 494, considered.
(d) Bengal Special Powers Ordinance, 1946, S. 10‑A " Satisfied "‑Whether Court could go into reasons for satisfaction.
The Court cannot go into the question whether the satisfac tion of the Provincial Government is based on reasonable grounds or not.
55 C. W. N. 3 D. R. 25 rel.
S. 10‑B‑"After considering all the circumstances "‑Whether fact of considera tion should be indicated in order for further detention.
The Act empowers the Government to determine as to whether the detenu should be further detained after the expiry of certain period of detention, after considering all the circumstances of the cases although they are to disclose such grounds as in their opinion will enable the detenu to make a representation, they are not bound to disclose the further circumstances considered by them for further detention. It is open to the Government to detain further even on the same grounds as before if they appre hend that after the expiry of certain period, on grounds of public safety and maintenance‑ of public order, they should be further detained.
S. 10‑C Disclosure of grounds‑Government sole judge of sufficiency for representation.
According to the provisions of section 10‑C the Government is bound to disclose such grounds and‑ such., particulars or facts as are, in the opinion of the Government, sufficient to enable the detenus to make a representation against the order' and it is the Government and the Government alone who is the sole judge of deciding as to what grounds and what particulars are sufficient to enable the detenus to make a representation. In section 10(c) the words, " in the opinion of such authority " relate both to " the grounds " and the " particulars ".
H. Rahman, Birendra Nath Chowdhury, B. A. Siddiky, Siris Chandra Dutt, Birendra Path Chowdhury, Syed Abdul Ghani, and Sabita Rajan Pal for Petitioners.
M.Asir, Assistant Government Pleader with Syed A. B d Hussain, for Opposite Party.
.‑These are 21 petitions (two petitions being from the same person) under section 491 of the Code of Criminal Proce dure for the release of 20 persons who are being detained in different jails of East Bengal in pursuance of orders purporting to be made by the Government of East Bengal. As the points involved in all the cases are more or less the same and they were heard together, it will be convenient to deal with all the cases in one judgment.
(After setting out the grounds for detention in each case, the judgment Proceeded‑)
This Court issued rule in all the above cases on the Chief Secretary to the Government of East Bengal and the Superintendents of the jails concerned to show cause why the above detained persons should not be set at liberty.
The Government of East: Bengal have appeared through Mr. Asir, Assistant Government Pleader. In all the above cases the persons concerned have at present been detained under orders purported to have been passed under section 10‑A of the Bengal Special Powers Ordinance, 1946 (i.e. the Bengal Ordinance VI of 1946) which has been enacted and continued in operation by the East Bengal Government Ordinance Temporary Enactment and Re‑enactment Act 1948. (East Bengal Act XII of 1948) which was further enacted and continued to be in operation by the East Bengal Ordinance Temporary Enactment and Re‑enactment Act 1949, i.e, East Bengal Act I of 1949, which has been further enacted and continued in operation by the East Bengal Ordinance Temporary Re‑enactment Act, 19510 i.e., East Bengal Act VI of 1950.
The relevant subsection of section 10‑A of the Bengal Special Powers Ordinance 1946, according to which the above persons have been detained are in these terms :‑.
" 10‑A(1)‑ The Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order it is necessary so to do, may make an order‑
(a) directing that he be detained ;
(4) As long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be removed to and detained in such place and under such conditions, including conditions as to maintenance, dis cipline and the punishment of offence and breaches of discipline, as the Provincial Government may from time to time by general or special order specify '
Section 1 of the East Bengal Ordinance Temporary Re‑enactment Act, 1950 (East Bengal Act VI of 1950) runs as follows :‑
" 1, (1) This Act may be called the East Bengal Ordinance Temporary Re‑enactment Act, 1950.
2. It extends to the whole of East Bengal.
3. It shall be deemed to have come into force on the 16th day of March, 1950."
In section 2 of the East Bengal Ordinance Temporary Re enactment Act 1950 (Act VI of 1950) there is an enactment to the following effect Temporary re‑enactment of the provision of certain Ordinances.
" 2. The provisions of each of the ordinances specified in the schedule, which temporarily enactment and continued in opera tion under the East Bengal Ordinances Temporary Enactment and Re‑enactment Act, 1949, shall, subject to the East Bengal Repealing Act, 1949, in so far as it relates to the East Bengal Nursing Council Ordinance, 1948, have effect as if they had been re‑enacted in an Act of the Provincial Legislature and shall continue in operation for a period of six months with effect from the dates on which they were due to expire under the provisions of the said East Bengal Act I of 1949.
Provided that the Provincial Government may, by notifica tion in the Official Gazette direct that the provisions of any of the Ordinances specified in the said Schedule, shall continue in operation for a further period not exceeding six months if, in the opinion of the Provincial Government it is necessary in the public interest to do so."
In accordance with the above first proviso of section 2 before the expiry of the provisions of the Bengal Special Powers Ordi nance on the 15th of September, 1950, the East Bengal Govern ment issued the following notification by virtue of which the duration of the provisions of the Bengal Special Powers Ordinance, 1946 was extended for a further period of six months and this notification was published in the Extraordinary Issue of the Dacca Gazette of Friday the 8th September, 1950 :‑‑
"Dacca‑No. 2098 H. S.‑8th September, 1950.‑ Whereas it is necessary in the public interest to continue in operation the provisions of the Bengal Special Powers Ordinance, 1946 (Bengal Ordinance VI of 1946) ; '
Now, therefore, in exercise of the power conferred by the first proviso to section 2 of the East Bengal Ordinances Temporary Re‑enactment Act 1950 (East Bengal Act VI of 1950), the Governor is pleased to direct that the provisions of the Bengal Special Powers Ordinance, 1946 (Bengal Ordinance VI of 1946), as re‑enacted and continued by the said Act, shall continue in operation for a further period of six months with effect from the 16th September, 1950.
By order of the Governor
Aziz Ahmed, Chief Secretary.
Although in cases of these detenus we have been taken through all the orders together with the grounds thereof it is not necessary; to refer to them all except to the last orders and to the grounds thereof under which the present petitioners are now being detained in Jails, for, it is now settled law that if the Government can satisfy us that the order under which a detenu is detained at present is valid it does not matter whether the orders passed prior to the last order were valid or invalid. Vide the case of Basanta Chandra v. The Emperor, reported in 46 Cr. L. J. at p. 559. In the latter case it was held by their Lordships of the Federal Court of India that if at any time before the Court directs the release of the detenu a valid order directing his deten tion is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. So, in each case, we have confined and shall confine ourselves only to the last order of the Government under which the petitioners before us are at the present moment being detained and examine whether the said last order is valid or invalid. We may quote the last order No. 2247 H. S. dated the 16th September, 1950 passed in the case of the first detenu, A. K. R. Ahmed :‑---
Government of East Bengal.
Home Department.
Special Branch.
No. 2247 H. S.
Dated Dacca, the 16th September, 1950.
Whereas the person known as A. K. R. Ahmed son of Abdul Gafur of Hossaindi; Gazaria P. S. Munshiganj, District Dacca of Dacca Town is detained in the Comilla Jail under Order No. 421‑H. S. dated the 16th March, 1950.
And whereas having considered the material against the said person the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order for the purpose of continuing his deten tion :‑ ‑
Now, therefore, in exercise of the powers conferred by clause (a) of subsection (1) and subsection (4) of section l0A of the Bengal Special Powers Ordinance, 1946 (Bengal Ordinance No. VI of 1946) as enacted and continued in operation by the East Bengal Ordinance Temporary Re‑enactmet Act, 1950 (East Bengal Act VI of 1950) the Governor is pleased to direct :‑--
(a) that the said person shall, subject to the provisions of section 10B of the said Ordinance as so enacted and continued in operation, be detained until further orders ;
(b) that, subject to the provisions of clause (a) of this para graph the said person shall .until further orders‑, continue to be detained in the Comilla Jail and
(c) that during such detention the said person shall be subject to the conditions laid down in the East Bengal Security Pris oners Rules, 1950.
By order of the Governor
Sd. Illegible,
Assistant Secretary to the Government.
of East Bengal.
Similar orders were passed on the other detenus as well.
In some cases as stated above the detenus have been represented by Counsel Mr. H. Rahman, in one by Mr. S. C. Dutta, in some by Mr. B. N. Choudhury, in one by Mr Abdul Ghani, in another by Mr. S. R. Pal and some were not represented by any lawyer. We, however, called upon Mr. Asir who has appeared on behalf of the Government of East Bengal to produce the original records covering the detention of each of the 20 persons. Mr. Asir has in the case of each one of these petitioners produced the original orders and grounds thereof of the Government of East Bengal.
Mr. H. Rahman has appeared on behalf of the petitioner in Miscellaneous Case Nos. 72 and 77 and has challenged the legality of the first proviso to section 2 of the East Bengal Ordinance Tem porary Re‑enactment Act 1950 (East Bengal Act VI of 1950) and all the learned Advocates who have appeared for some of the detenus have also adopted his argument. It has been strenuously argued that the first proviso to section 2 of East Bengal Ordinance Tempo rary Re‑enactment Act 1950 (East Bengal Act VI of 1950) to the effect that the operation of the Act for a period of six months mentioned in the first paragraph of section 2 may be extended by the Provincial Government for a further period of six months, is ultra vires of the Provincial Legislature, for the East Bengal Legislature cannot delegate this power to direct that the Act should continue in force for a further period of an external authority:
It is said that to extend the life of an Act beyond the prescribed period, is clearly a legislative power and the Provincial Legislature has no power by the proviso to delegate this power to the Govern ment.
It is also pointed out that providing for the extension of the Act by a notification of the Provincial Government is providing for a different mode of legislation from that contemplated by the Government of India Act as adapted to Pakistan. In this connec tion we have been referred to section 60 of the Government of India Act, as adapted to Pakistan, according to which the Pro vincial Legislature means His Excellency the Governor and the Legislative Assembly of the Province So, it is contended that the proviso in question the Provincial Legislature has created entirely anew body, namely, the Provincial Government, for legislation. It is also said that legislative procedure laid down in section 73 and other subsequent sections of the Government of India Act as adapted to Pakistani have been substituted by a Special Procedure and that the creation of such an external body by a subordinate legislature like the East Bengal Legislature is in contravention of the provisions of the Government of India Act as adapted to Pakistan. Consequently, the extension of the life of the Act made by such an authority in accordance with the terms of the proviso by a mere notification, is ultra vires. In support of his argument Mr. Rahman has strongly relied on the cage of Jatindra Nath Gupta v. The Province of Bihar and ors. reported in 53 Calcutta Weekly Notes (F. R.) at page 91 and also on the case of Badal Bose and ors. v. The Chief Secretary, Government of West Bengal reported in 53 Calcutta Weekly Notes at page 728 in which the decision of the case of Jatindra Nath Gupta, v. Province of Bihar reported in 53 C. W. N. (F. R.) at page 91 was followed by their Lordships of the Calcutta High Court.
In the case of Jatindra Nath Gupta v. The Province of Bihar and others reported in 53 Calcutta Weekly Notes (F. R.) at page 91 the Bihar Legislature enacted a statute, namely, the Bihar Maintenance of Public Order Act which became law on the 15th March, 1547. It was provided by section 1 subsection (3) of that Act that the Act should remain in force for a period of one year from the date it came into force. There was proviso to the above subsection as follows :‑---
"Provided that the Provincial Government by' notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification".
Before the expiry of a whole year and before the provisions of the Bihar Maintenance of Public Order Act, 1947 were extended according to the above proviso, a resolution was passed by the Bihar Legislative Assembly and agreed to by the Bihar Legis lative Council extending the life of the Act for a further period of one 'year and during the latter period the Govern ment passed orders detaining certain persons. So; it was con tended before the Federal Court that after the expiry of one year the Bihar Government's above statute was riot validly extended for a period of one year and therefore the detention of these persons was illegal. It was argued in that case that according to the proviso the Bihar Legislature had delegated their legislative function to a body other than one prescribed by the Government of India Act. On behalf of the Bihar Government it was contended that it was not a case of delegation of legislative power, but that it was a case of conditional or contingent legislation which was permissible under the well‑known rule enunciated by their Lordships of the Privy Council in the case of the Queen v. Burah, reported in 5 Indian Appeals at page 178 (1878) and the subsequent case, namely, the case of Russell v. Queen reported in 7 Appeal cases at page 829 in the year 1831 and other cases. In the case of Jatindra Nath Gupta v. The Province of Bihar and others reported in 53 C. W. N. (F. R ) at page 91 the Federal Court of India held, Fazl Ali, J. dissenting that the proviso allowing the Act to be extended by a resolution of both Houses was void as it amounted to delega tion by the Bihar Legislature of their power to Legislate and so, the orders under which the appellants were detained, were not valid orders. Therefore, their Lordships directed them to be set at liberty.
In the case of Badal Bose v. The Chief Secretary to the Government of West Bengal reported in 53 C. W. N. at page 728 where the order was passed under the West Bengal Security Act 1948, detaining the persons concerned, there was a provision for the duration of the Act in section 1 subsection (4) of the Act in the following terms :‑
"It shall in the first instanc6, remain in force for a period of one year; provided that if a resolution in that behalf is, before the date on which under this subsection it would otherwise have ceased to operate, passed by the Provincial Legislature, it shall continue in force for a further period of one year from such date"
In accordance with the above proviso on the 5th March, 1949, before the first year of the Act expired, a resolution was passed by the West Bengal Legislative Assembly extending the life of the Act for a further period of one year and during this second year of the Act, orders of detention were passed on certain persons. It was contended on behalf of the detenus that the resolution passed by the West Bengal Legislative Assembly could not extend the life of the Act which was originally to be in force for one year. It was argued that the West Bengal Legislature which consists of His Excellency the Governor and the Legislative Assembly according to the Government of India Act, could not delegate their power to the Assembly. Harries, C. J. who delivered the judgment in that case referred to the relevant sections of the Government of India Act and also to different cases both English and Indian that were cited in the case of Jatindra Nath Gupta before the Federal Court and after making elaborate review of the decisions of those cases held that the power to extend the life of the West Bengal Security Act, beyond the period of one year, was a legislative power and that it was ultra vires of the Legislature to transfer such a power to some other body.
On behalf of the Provincial Government Mr. Asir has contend ed that the above decisions of the Federal Court of India and the Calcutta High Court are not binding on us and secondly, that these two cases are distinguishable from the present case. He has also urged that the legislation in question is only a conditional or limited legislation, it being left to the discretion of the Government to continue it in operation for a further period of six months, if in the opinion of the Provincial Government it is necessary to do so in public interest. We are fully conscious of the fact that the decisions of the Indian Republic are not binding on us but that should not prevent us from referring to the legal principles enunciated, by them.
Mr. Asir's arguments have been the same as those on behalf of the Government of Bihar in the above case of Jatindra Nath Gupta v. The Province of Bihar and others reported in 53 C. W. N. (F. R.) at page 91 and as those advanced by the West Bengal Government in the above case of Badal Rose v. Chief Secretary, Government of West Bengal reported in 53 C. W. N. at page 728. He has relied also on the cases cited in these two cases by the learned Advocates for the Provincial Governments. It is unfortunate that we did not have very much of assistance from him so for as the present cases are concerned. We regret to hear from him that he, on his turn, did not have much assistance from the Provincial Government who briefed him in these parti cular cases. He has, however, under the circumstances, tried to do his best. He has referred to the above two cases and tried to distinguish them from the present cases and as among others, relied on the following cases:
(i) The case of the Queen v. Burah reported in 5 1. A. at page 178
(ii) The case of Russell v. Queen reported in 7 A. cases at P. 829.
(iii) The case of Minister of Health v. The King (on the pro secution of Yafee) reported on (1931) A. cases at page 494,
(iv) The case of Sushil Kumar Sinha v. The Government of Bengal reported in 53 C. W. N. p. 545.
(v) The case of Benoarilal v. The King Emperor reported in 49 C. W. N. at p. 178 (1944).
He has, pointedly drawn our attention to the fact that in the case a of jatindra Nath Gupta v. The Province of Bihar and ors not only the question of duration of the legislation was stressed but also the question of its modification by the Provincial Government and therefore, it was held that two together, i. e, the power to Extend the duration of the Act and the power to modify, went to constitute the entire legislative power; but in the present cases it is said there is no question of modification of the Act by the Provincial Govern ment and all that the Provincial Government is required to do is to extend the entire act for a further period for six months without any modification. The same was the argument of the Advocate General appearing for the Provincial Government in the case of Badal Bose v. The Chief Secretary to the Government of West Bengal reported in 53 C. W. N. p. 728 before their Lordships of the Calcutta High Court, but Harries, C. J. observed that their Lordships of the Federal Court of India clearly held that even if these two powers were severed and only the power to extend the life of the Act was transferred to a body other than the legislative body prescribed by the Government of India Act, such a power being legislative power could not be delegated. Mr. Asir has also contended that in the case of Badal Bose, Harries, Chief Justice, observed that not only the decision but even the obiter dicta of the case of jatindra Nath Gupta v. The Province of Bihar reported in 53 C. W. N. (F. R.) at p. 91 were binding on the Calcutta High Court as the Federal Court of India was the Supreme Court of the land and that is why Harries, C. J. followed the ruling of that case. We have very carefully gone through both these two cases and we are unable to agree with Mr. Asir that Harries, C.J. accepted the decision of the case of jatindra Nath Gupta only because it was a decision of the Federal Court or because they were obiter dicta of the Federal Court. There are observations in the case of Badal Bose v. The Chief Secretary, Government of West Bengal reported in 53 C. W. N. p. 728, which clearly go to show that their Lordships of the Calcutta High Court were clearly of opinion that the power to extend the life of an Act is clearly a legislative power and that such a power could not be delegated by the legislative to a body not prescribed by the Government of India Act. Harries, C. J., quoted among others, the following observations of Kania, C. J. Mahajan, J. and Mukherjea, J. with approval and mentioned that even if only the power delegated to the legislature was to extend the life of a statute, not the power to modify, even then it would be delegation of legislative power. In the case of Jatindra Nath Gupta v. The Province of Bihar, Kania, C. J., of the Federal Court inter alia observed.
"The power to extend the operation of the Act beyond the period mentioned in the Act is prima facie a legislative power.
It is for the legislature to state how, long a particular legislation will be in operation. That cannot be left to the discretion of some other body."
In another passage Kania, C. J. observed "For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority which was not the legislative authority of the province.
Mahajan, J. observed on this point :‑--
"The Act in a mandatory form stated that it shall be in force for one year only. That being so the power given in the proviso to re‑enact it for another years is legislative power and does not amount to conditional legislation."
Mukherjea, J. observed:
"It cannot also be supported on the ground that what it delegates is a mere non‑legislative function. The duration of a statute is a matter for determination by the legislature itself. From the language of subsection (3) of section 1 and that of the proviso, it is difficult to say that the legislature fixed the duration of the Act at two years from the date of the commence ment and left it to the Provincial Government to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year or more."
In the present case from the wording of the first paragraph of section 2 of the East Bengal Ordinance, Temporary Re‑enact ment Act, 1950, it is clear that its mandatory provision is that the Act shall continue only for a period of six months. As to whether it shall continue or shall not continue for a further period of six months after the expiry of the said 6 months, that is after the 15th September, 1950, is made un certain and problematic and will entirely depend, according to the first proviso of section 2 on the opinion of the Provincial Government as to whether it is necessary to continue or to discontinue it.
The whole question is whether the power that has been given to the Provincial Government to extend the life of the Act, viz., The Bengal Special Powers Ordinance 1946 (Bengal Ordinance Act VI of 1946) for a further period of six months by the 1st proviso to section 2 of the East Bengal Ordinance Temporary Re‑enactment Act, 1950 is a legislative or a non- legislative power. It, of course, cannot be disputed that although the Legislature cannot delegate its power to make law to any other authority, it does not preclude the Legislature from delegating any power, not the legislative which it may itself rightfully exercise, as Cooley observes in his book Consti tutional Limitation" (Vol. 1. Eighth Edition at p. 228) :‑---
"It may confer an authority in relation to the execution of a law which may involve discretion, but such authority must be exercised under and in pursuance of the law. The legislature must declare the policy of the law and fix the legal principles which are to control in given cases ; but an adminis trative officer or body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply.
It has also been observed by an eminent Judge:
"The legislature cannot delegate its power to make a law ; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or, intends to make, .its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation". (Agnew, J., in Lock's Appeal, 72 Pa. St. 491, 498):
In the light of the above we have also to determine whether the power given to the Government to continue the Act for a further period of six months is a power which relates to the execution of a law which involved discretion whether after the legislature has declared the policy of the law and fixed the legal principles the legislature has only conferred on the Provincial Government the power to ascertain the facts and condition to which the principles and policy shall apply. As a matter of fact, the latter argument has also been advanced by Mr. Asir when he contended before us that what was really trans ferred to the Government was non‑legislative power after the Legislature had completed its legislation. In support of the latter argument he has relied on the following cases :‑(i) The case of King Emperor v. Benoarilal Sarma reported in 49 C. W. N. at p. ‑178 (1944) (11). The case of Sushil Kaonar Sinha v. The Government of West Bengal reported in 53 C. W. N. at p. 545 and (iii) the case of Minister of Health v. The King (on the prosecution of Yaffe) reported in (1931) Case at p.494.
In the case of Benoarilal v. The King Emperor reported in 49 C. W. N. 178 (1944) the validity of an Emergency Ordinance by the Government of India was challenged, inter alia, on the ground that it provided for setting up of Special Criminal Courts for trial of particular kinds of offences, but the actual setting up, of the Courts was left to the Provincial Government who were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that this was not delegated legislation as in such case only the local application of the statute was to be determined by a local administrative body.
The case of Sushil Kumar Sinha v. The Government of West Bengal reported in 53 C. W. N. at p. 545 also has no application to the facts of the present cases. It is true that in this case the legislature em‑powered the executive to determine what an "essential commodity" is ; but this the legislature can do, for in this case it fixed the policy and the legal principles and all that it did was only to invest the executive with the powers to ascertain certain facts and. conditions to which the policy and principles shall apply.
Mr. Asir has also relied on the following passage of Max well on Interpretation of Statutes (Ninth Edition) at page 305 :
"Where parliament has delegated its legislative function to a Minister of‑the Crown without retaining any specific control over the exercise of that function by the Minister (such as a condition that an order made by the Minister should be laid before Parliament and be subject to annulment by Parliament) the Court has the right and duty to decide whether the Minister has acted within the limits of his delegated power. Where, however the power delegated to the Minister is a discretionary power, the exercise of that power within the limits of the discretion will not be open to challenge in a Court of law."
The last underlined sentence is only a quotation from the judgment of his Lordship Thankerton, J. in‑the case of Minister of Health v. The King (on the prosecution of Yaffee) 1931 (A. C. 494) at p. 533 of that case. That was a case in which section 40 of the Housing Act, 192.5 empowered the Minister of Health to make an order confirming, with or without modification, an improvement scheme made under the Act. The Corporation of Liverpool submitted to the Minister of Health for confirmation an improvement scheme in respect of an unhealthy area of a city. The Minister after holding a public inquiry made an order modifying the 'scheme. It was held that the scheme, whatever its defects, was an improve ment scheme, within the 'meaning of the Act, and any defects in the scheme had been cured by the order of the Minister. This case does not support the contention of Mr. Asir.
In our opinion, the present cases do not seem to be those where the legislature has only asked another body‑ to ascertain facts and conditions but what has been delegated by the Legislature to the Government is to determine whether the act shall expire, and stand repealed on the 15th September, 1950 as enacted by the Legislature in the first paragraph to section 2 of the East Bengal Ordinances Temporary Re‑enactment Act. 1950 or whether the Act is to remain alive and be re‑enacted for a further period of six months by a notification of the Provincial Government.
The three principal organs of a modern Democratic State are the Legislature, the Executive and the Judiciary, Sovereign as they are in their own spheres, the Constitution from which they derive their authority is above all and advisedly, the constitution prescribes and limits the powers of these respective bodies and each of these has certain ‑essential functions to perform. It is settled law that the Legislature cannot delegate their powers and functions to others, for such delegation would be in contravention of the constitution of the State. It cannot be reasonably argued that the delegated power given to the Government by the proviso in question to re‑enact an Act which expired after the 15th September, 1950 is not a legislative power. If the Legislature had fixed the life of the Act at one year and provided for the Provincial Government to determine at the end of 6 months whether the Act should be in operation for a further period of 6 months, it might have been argued that it was a piece of conditional legislation but that is not the case here. The Legislature has made a mandatory provision in the 1st paragraph of section 2 that the Act shall remain in force for 6 months and as to the period of 6 months subsequent to that it is left to the Government to decide.
On a reference to the first proviso of section 2 of the East Bengal Ordinance Temporary Re‑enactment Act 1950, it is more than clear that the legislature after the expiry of a al period of six months mentioned by them in their legislation in the first paragraph reserve to itself no further opportunity of examining the provisions of the Act and satisfying themselves whether these provisions of an Act enacted by them to be in force for 6 months should die a natural death after the expiry of the said period of 6 months or whether they should be re‑enacted for a further period of 6 months and this they left to 'the Provincial Government. By empowering the Government in this manner and to this extent by the first proviso' to section 2, the Legislature has, in our opinion, abdicated from its own power and delegated its own function to a body' other than a body constituted by the Government of India Act as adapted to Pakistan for the performance of that very function which it is its essential duty to discharge. By doing so, in effect, they have set tip a parallel body to do what 'the legislature is required to do under the constitution.
If the present piece of legislation were permissible the Legislature need hardly meet or deliberate or would meet or deliberate only if and when they please. To give an extreme case, if this Legislation enacted by the opinion of the Government is to be held valid, the necessary corollary would be that the same Legislature could meet only once in their life time after it has been constituted and pass only a of legislations, say, for a period of one day, or one month and enact that for its further duration for any further period, it will depend on the opinion and notification of the Government. If the present piece of legislation for a further period of six months were held valid, no one could reasonably say that the other piece of legislation for any further period of the life of the legislature mentioned above could be held invalid.
The present cases seem to be worse than the other two cases of Jatindra Nath Gupta v. The Province of Bihar and others reported in 53 C. W. N. (F. R.) 91 and Badal Bose v. Chief Secretary to the Government of West Bengal. It will appear from the provisos of the above two cases that in the case of Jatindra Nath Gupta v. The Province of Rihar and others reported in 53 C. W. N. (F. I., R.) at p. 91 the Provincial Government was empowered to extend the life of the Act, for a further period of one year only on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legis lative Council and in the case of Badal Bose. v. The Chief Secretary to the Government of West Bengal reported in 53 C. W. N. at p. 728 the Vest Bengal Security Act was. to continue in force for a further period of one year if a resolu tion to that effect was passed by the Legislature, and that only because these further extensions of the respective Acts were not extended by following the procedure prescribed for legis lation by the Government of India Act, i.e. it was not enacted by the legislature which consists of His Excellency and the Legislative Assembly, and the mode of legislation was only technically different from that prescribed by the Government of India Act, the extension of the statutes in each case far more than one year was held to be null and void. In the present cases it will be noticed that there is no provision whatsoever ‑in the proviso in question that the opinion or sense of the legislature is to be taken in any form before the life of the Act was extended for a further period of six months.
With due respect we agree with the above observations of Kania, C. J. Mukherjea, J. Mahajan, J of the Federal Court of India and also with Harries, C. J. of the Calcutta High Court and in our opinion the cases cited by Mr. Asir namely the case of the Queen v. Burah reported in 5. I. A. at p. 178 ; the case of Russell v. Queen reported in 7 A. C. at p. 829. the case of Benoarilal Sarma v. The King Emperor reported in 49 C. W. N. at p. 178 (1944) and the case of Sushil Kumar Sinha v. The Government of West Bengal reported in 53 C. W. N. 545 and the case of Minister of Health y. The King reported icy (1931) A cases at 494 (on the prosecution of Yaffe) do not help him at all. We do not like to discuss the case of Queen v. Burah reported in 59 A. at p. 178 (1878) and the case of Russell v. Queen reported in 7 A. C. at p. 829 as we take the same view of these decisions as taken by the majority of the learned judges of the Federal Court of India.
The Act as it is without the proviso confers upon Govern ment very wide powers. The duty of the Court must be always to protect the liberty of the subjects and that it can only do by seeing to it that the Government exercise its powers within the four corners of the statute, that the order is made within the ambit and scope of the Act and that every formality required by the Legislation or for Legislation, is complied with before the subject is deprived of his liberty. Moreover if the powers to determine the duration and the power to execute a statute are both transferred to the Government which have already been given very wide powers by the very Special Powers Ordinance, 1946, it would be really giving to the same body both the powers to legislate and to execute and that will be in clear contravention of the constitution. Cooley says in his book on "Constitution Limitations" Vol. I Eighth Edition at p. 224.
"One of the settled maxims in constitution law is, that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain ; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agency upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other‑ body for those to which alone the people have seen fit to confide this sovereign trust."
We may also quote the following from Locke on Civil Government 142.
"These are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every Commonwealth, in all forms of Government.
First, That they are to govern by promulgated establishes laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court and the countryman‑ at plough.
"Secondly, these laws also are to be designed for no other and ultimately but the good of the people.
"Thirdly. They must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies. And this property concerns only such Government where the Legislative is always in being or at least where the people have not ‑reserved any part of the legislative to deputies, to be 'from time to time chosen, by
"Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else or place it anywhere but where the people have."
So, on the point of legality of the enactment of the first proviso to subsection (2) of the East Bengal Ordinance Temporary Re‑enactment Act, 1950 (East Bengal Act VI of 1950) for the reasons stated above, we are of opinion that the power to extend the life of the Act by another six months after its expiry on the 15th of September, 1950, is clearly a legislative power, and that this legislative power has been delegated by the above proviso to a body other than the ore prescribed by the Government of India Act as adapted to Pakistan. Therefore, it is out and out a case of delegated legislation and not a case of conditional legisla tion. So, we must hold that this delegated legislation contained in the proviso in question is ultra vires of the Provincial Legis lature and the orders made thereunder are illegal.
It is next argued that even assuming the orders in question are intra vires, they are not good and valid orders as the pro: visions of sections 10‑A, 10 B and 10‑C of the Bengal Special Powers Ordinance, 1946 have not been complied with and that these orders are malafide. The arguments of all the learned Advocates may be summarised as follows :‑
(a). That there is no fulfilment of conditions prior to the detention of the detenus as required by the provisions of section 10‑A of the Bengal Special Powers Ordinance 1946‑ Stress is laid on the word "satisfied" and on the words prejudicial to the public safety and the maintenance of public order' in the sub section (1) of section 10‑A, and it is said that the satisfaction of the Provincial Government is limited and it must be in order to prevent a person from acting in any manner prejudicial to the maintenance of public safety and the maintenance of public order and that any other satisfaction will not do. If the grounds disclosed by the Government and served on the detenu do not relate to public safety and in the maintenance of public order the detention is ab initio void. Further, that even if with matters of public safety and maintenance of public order, other matters are mixed up even then the former order on the ground of public safety and public order would be invalid for in that case the mind of the Government cannot rest on the particular matter which are within the ambit and scope of section 10‑A of the Bengal Special Powers Ordinance 1946. It has been held not only by this Court in the case of Nirmal Kumar Sen v. The Crown, reported in 55 C. W. N. 3 D. R. 25, but it has also been repeatedly held by the Courts of Indian Republic that after the deletion of the words "the Provincial Government, if satisfied on reasonable grounds" the Court cannot go into the question whether the satisfaction of/ the Provincial Government is based on reasonable grounds or not. As we respectfully agree with this view taken in the above case by a Division Bench of this Court, it is not necessary to discuss this point at length.
The next branch of argument under this head is (b) that pro visions of section 10‑B of the Special Powers Ordinance have not been complied with for the purpose of the continuation of the detention of the persons concerned under the last order, for, section 10‑B runs thus :‑
"10‑B. An order made under section 10‑A shall be in force for six months or for the period subsequent to the date of issue of such order during which this Ordinance continues in operation, whichever is less, unless earlier cancelled by the authority making the order
Provided that nothing shall prevent the Provincial Government on the expiry of validity of any such order as aforesaid, after considering all the circumstances of the case from issuing from time to time a fresh order to the same effect and subject to the same limitations as to duration.
Here again stress is laid on the above words "after con sidering all the circumstances of the case" and it is pointed out hat in as much as in all these cases several orders were passed before the last order and in some of them practically on the same grounds as those under the previous orders these persons have been detained again, the Government have not considered the circumstances of each case for further detention under the last order, and that in such cases further consideration and satisfaction of the Government must be indicated in the present orders served on the detenus.
With regard to the non‑compliance of section 10‑B again, the Act empowers the Government to determine as to whether the detenu should be further detained after the expiry of certain period of detention, after considering all the circumstances of the cases although they are to disclose such grounds as in their opinion will enable the detenu to‑ make a representation, they are, in our opinion, not bound to disclose the further circumstances considered by them for further detention. Mr. Asir has rightly argued that it is open to the Government to detain them further even on the same grounds as before if they apprehend that after the expiry of certain period, on grounds of public safety and main tenance of public order, they should be further detained.
The third branch of argument under this head is (c) that the grounds served on the detenus are vague, indefinite and they are so vague and indefinite that they do not enable the detenus to make a proper representation if they wish to do so and that therefore, section 10-C of the Bengal Special Powers Ordinance 1946 has not been complied with by the Government. In this connection it is claimed that even‑the grounds of detention in some cases were not served on the detenus within reasonable time.
So it is strenuously urged that all the contentions above go to show that the Government have made malafide orders in all these cases. We may mention the following cases cited by Mr. H. Rahman in support of the above argument.
(1) the case of Rajdhar Kalu Patil appellant, reported in A. I. ‑R. 1948 Bon . 334 ;
(2) the case of Krishnaji Gopal Brahmepetr, reported in A. I. R. 1948 Bom. 360 ;
(3) the case of Durgadas and others v. Rex reported in A. I. R: 1949 All: 148 ;
(4) the case of Safatulla Khan v. The Chief Secretary to the Government of West Bengal and others reported in 55
We may at once say that these cases cited by the learned counsel do not help his clients or the other detenus, as, they have no application to the cases before us, as 'the relevant provisions of section 10‑C of the Bengal Special Powers Ordinance 1946 which are set out below are different from the provisions of law on which the decision of the above mentioned cases were based.
Section 10 C runs as follows :‑---
"Where an order is made in respect of any person under clause (a) of subsection (1) of section 10‑A, as soon as may be after the order is made the authority making the order shall communicate to the person affected hereby so far as such communication ‑ can be made without disclosing facts which the said authority considers it would be against the public interest to disclose the grounds on which the order has been made against him and such other particulars as are in the opinion of such an authority sufficient to enable him to make if he wishes a representation against the order arid such person may at time thereafter make a representation in writing to such authority against the order and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest practical opportunity of doing so."
We shall only discuss one of the above cases on which Mr. Rahman relied very strongly, namely, the case of Safatulla Khan v. The Chief Secretary to the Government of West .Bengal, reported in 55 C. W. N. 27. It is true that in this case their Lordships Harries, C. J. and Mitter, J. have held that a Court can order the release of a detained person if the grounds of detention served on that person are not sufficient, exact or precise to enable him to make an effective representation, that indefinite and vague grounds are not sufficient compliance with clause (5) of Art. 22 of the Constitution and. with section 7 of the Preventive Detention Act, that the authorities are bound to disclose the grounds and they cannot suggest that it is against public interest not to disclose the grounds ; and that all that the authorities can refuse to disclose are facts which would be harmful to public interest if they are disclosed. These observations of their Lordships have no application to the present cases as it will appear from the following relevant provisions of law in the Indian Republic on that they are quite different from the provisions of section 10‑C mentioned above. Section 7 of the Provincial Detention Act, 1‑950 reads as follows :‑
"(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, com municate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order, in a case where such order has been made by the Central Government, to that Government and in a case where it has made to State Government or an officer subordinate thereto, to the State Government.
(2) Nothing in subsection (1) shall require the authority to dis close facts which it considers to be against the public interest to disclose."
Clause (5) Art. 22 of the Constitution of Indian Republic runs thus :‑
" Clause 5 ; When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a repre sentation against the order."
The Clause 6 of Art. 22 may also be stated and it runs thus :‑-
"Clause 6. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
It will appear from the provisions of law that have been set out that according to above existing provisions of law in the Indian Republic the Government is bound to communicate to the detenu all the grounds on which the order of detention is made provided they do not have to disclose any facts which are considered to be against the public interest to do so. Provisions of section 10‑C are palpably different and Mr. Asir has rightly pointed out that according to the provisions of section 10‑C the Govern ment is bound to disclose such grounds and such particulars or facts as are, in the opinion of the .Government, sufficient to enable the detenus to make a representation against the order and it is the Government and the Government alone who is the sole Judge of deciding as to what grounds and what particulars are sufficient to enable the detenus to make a representation. We accept this contention of Mr. Asir, as in section 10 (C) in our opinion, the words, in the opinion of such authority" relate both to "the grounds" and the "particulars". We find that this view has also been taken by their Lordship Ellis, J. presiding over a Division Bench of this Court in the case of Nirmal Kumar Sen and others v. The Crown, reported in 55 C. NV. N. 3 D. R. 25 and we respect fully agree with that view.
With regard to the question of delay. Mr. Asir, has filed affidavits on behalf of the Government and it appears not only from the same but also from the original records that it cannot be claimed that there was any delay in serving the grounds of the last orders, for in some cases they were served along with the orders, in some very promptly, and only in some cases they were served a few weeks after the service of the orders. According to the affidavits it is clear that the Government had to cope with a large number, of cases of this description and it was necessary that the relevant papers should be scrutinised by responsible officials to decide what grounds and what particulars could and what could trot be safely disclosed to the detenus. In each case the Government has also filed affidavits stating that it has acted in good faith throughout in passing orders in the case of each of the detenus.
So, we find that sections 10‑A, 1,0‑B and 10‑C of the Bengal Special Powers Ordinance of 1946 have been complied with by the Government, that there has been no unreasonable delay in serving the grounds of detention and that there has been no malalde on the part of the Government. So, except that the orders in question are ultra vires, as stated above, they are other wise good and valid orders.
The result, therefore, is that as all the detained persons except Atulendra Nath Das were ordered to be detained by orders made after the expiry of the first period of six months, i. e., the 15th September, 1950, those orders are null and void and it must be held that the detained persons are unlawfully detained. Although in the Miscellaneous Case No. 74 of 1950 of Atulendra Nath Das the order of detention that was passed on the 13th of September, 1950 is legal as it was passed during the first period of six months and before the extension of the Act by the Government, because that order of the 13th September,' 1950 ceased to be effective on the 16th September, 1950, in his case Also it must be held that he is at present unlawfully detained.
So, all these rules are made absolute and the petitions of all the detenus are allowed and we direct that the detenus in question be set at liberty forthwith. Let the orders be sent down at once to the Superintendents of jails concerned.
On the prayer of Mr. Asir, a certificate under section 205 (1) of the Government of India Act as adapted to Pakistan is granted.
----‑I agree
A.H Rules made absolute.
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