Judgment

MEHR CHAND MAHAJAN, C.J.I. : This is an appeal on a certificate under Article 132 (1) of the Constitution against the judgment of the High Court of Judicature at Madras dated the 20th February 1953, holding that section 14 of the Fugitive Offenders Act, 1881, is void as it offends against the provisions of the Constitution being discriminatory in its effect.

2. The respondents, husband and wife, were apprehended and produced before the Chief Presidency Magistrate, Egmore, Madras, pursuant to warrants of arrest under the provisions of the Fugitive Offenders Act, 1881. Mr. Menon is a barrister-at-law, and was practising as an advocate and solicitor in the colony of Singapore. Mrs. Menon is an advocate of the Madras High Court and was until recently a member of the Legislative Council of the Colony of Singapore. Both of them came to India some time after July 1952. On the 22nd August 1952 the Government of Madras forwarded to the Chief Presidency Magistrate, Madras, copies of communications that passed between the Government of India and the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return of the Colony to Singapore the Menons under warrants issued by the Third Police Magistrate of Singapore. Mr. Menon was charged on several counts of having committed criminal breach of trust and Mrs. Menon was charged with the abetment of these offences.

3. The Menons when produced before the Presidency Magistrate, questioned the validity of their arrest. They pleaded their innocence and contended that being citizens of India, they could not be surrendered at the warrants related to matters of a civil nature and had been given the colour of criminal offences merely for the purpose of harassing them out of political animosity and with a view to prejudice the court against them and were issued in bad faith. It was further urged that the provisions of the Fugitive Offenders Act under which action was sought to be taken against them were repugnant to the Constitution of India and were void and unenforceable.

4. The Presidency Magistrate expressed the view that by retaining the India Extradition Act, 1903, and with it Chapter IV, the President of India may have intended to give effect to the Fugitive Offenders Act, 1881, but the omission to adapt or modify it suitably it had became impossible to give effect to that intention, the provisions of the Act as they are, being inconsistent with and repugnant to the sovereign status of the Indian Republic. In view, however, of the provisions of section 432, Cr. P. C. as amended by Act XXIV of 1951, he referred to the decision of the High Court the following questions of law.

(1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th January 1950 when India became a Sovereign Democratic Republic; and

(2) Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and/or inoperative.

5. The High Court held that section 14 of the Fugitive Offenders Act was inconsistent with the fundamental right of protection of the laws guaranteed by Article 14 of the Constitution and was void to that extent enforceable against the petitioner. The second question referred having thus been answered in favour of the respondents, it was not thought necessary to return any answer to the first question. As above stated, a certificate under Article 132(1) of the Constitution for leave to appeal to the SC against this decision was granted to the State of Madras. The Union of India was allowed to intervene at their request.

6. The learned Solicitor-General who argued the case on behalf of the Intervener as well as on behalf of the State of Madras conceded that the Fugitive Offenders Act, 1881, was not adapted by any specific order of the President, and that the Parliament in India had not enacted any legislation on its lines. He, however, contended that the omission to ada