Judgement

Appeal by special leave from a judgment dated June 2, 1919, of a Commission appointed under the Martial Law Ordinance, 1919, and sitting at Lahore.

By the judgment appealed from twenty of the appellants were convicted of an offence under s. 121 of the Indian Penal Code—namely, of waging war or attempting to wage war against the King or abetting the waging of war against the King, and were sentenced to death and forfeiture of property ; the remaining appellant was convicted under s. 412 of the Code of receiving property stolen by dacoits. The offences were committed upon the occasion of a serious riot at Amritsar on April 10, 1919.

The facts and the terms of the enactments material to the arguments appear from the judgment of their Lordships.

Special leave to appeal was granted on August 18, 1919.

1920. Feb. 16 Sir John Simon K.C., Sir Reginald Acland K.C., Dube and Palat for the appellants. The Commission was not competent to try the appellants for the offences of which they were convicted. The appellants were not taken while committing any offence ; they were arrested on April 12 and on later dates, the rioting having ended on April 10. Ben. Reg. X. of 1804 and Ord. I. of 1919 apply only to persons taken in arms or while actually committing the offences referred to in the Regulation. Ord. IV. of 1919 upon its true construction did not apply to persons other than those referred to in the Regulation, its effect was merely to provide that the Commissions should have jurisdiction to try not only offences under the Regulation committed on or after April 13, as was the case under Ord. I., but any offence under the Regulation committed after March 30. If the words " any person for any offence " in Ord. IV. are to be construed in their widest sense the Ordinance was ultra vires. First, it was so under s. 65, sub-s. 2, of the Government of India Act, 1915, since it affected “part of the unwritten laws or constitution .... whereon may depend in any degree the allegiance of any person to the Crown.” A subject has a fundamental right to be tried for an alleged offence by the ordinary course of law. Not only were the ordinary Courts superseded, but under Ord. I. of 1919, s. 4, the powers of a general Court-martial under the Indian Army Act, 1911, given to the Commissions were to be exercised without the protection allowed to the accused persons by ss. 78 and 80 of that Act; those sections provide for the attendance of a Judge-Advocate and give a right of challenge. The object and effect of s. 65, sub-s. 2, was to prevent the Indian Legislature from interfering with those constitutional rights which bind the subject and the Crown the one to the other, a reciprocity referred to in the maxim " Protectio trahit subjectionem et subjectio protectionem " Calvins Case. ((1608) 7 Rep. 1, 5.) That view is strongly supported by the judgment of Norman J. in In re Ameer Khan. (( 1870) 6 Beng. L. R. 392, 450 et seq.) It is not suggested that an infraction of constitutional right justifies a modification of the duty of allegiance, but the words of the sub-section are wide, they are " whereon may depend in any degree the allegiance of any person." Secondly, if the wider interpretation of Ord. IV. is adopted, the Ordinance was ultra vires under s. 65, sub-s. 3, since it undoubtedly purported to empower the Commissions to sentence to death European-born subjects. The legislative power exercised was a purely derivative power, and the Ordinances made under it, like by-laws, are inoperative unless strictly within the power conferred. This is not a case merely of the partial repugnancy of an enactment so as to make applicable the Government of India (Amendment) Act, 1916, s. 2. It is a matter of fundamental incompetence of the Legislature. Even if the incompatibility with s. 65, sub-s. 3, was merely a matter of repugnancy, the Ordinance is bad because the repugnant part of it is not severable R. v. Faversham Fishmongers Company. ((1799) 8

T. R. 352,