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1944 Supreme(SC) 34
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT SIMON L.C., LORD ROCHE, LORD PORTER, LORD GODDARD AND SIR MADHAVAN NAIR.
KING-EMPEROR - Appellant
Versus
BENOARI LAL SARMA - Respondents
On appeal from the Federal Court of India
Decided On : Nov. 6. 1944.
Solicitor for appellant: Solicitor, India Office. Solicitors for amici curiae: Lambert & White.
The executive head is the sole judge of an emergency. Provisions allowing administrative bodies to activate a legislative framework or assign cases to special courts constitute valid conditional legislation, not an illegal delegation of legislative power, and can validly modify judicial jurisdiction.
Headnote:(A) Government of India Act, 1935 - Section 72 of Schedule IX, Section 102, Section 223, Section 311(6) - India and Burma (Emergency Provisions) Act, 1940 - Special Criminal Courts Ordinance, No. II of 1942 - Sections 1(3), 5, 10, 14, 16, 26 - Validity of Ordinance - Emergency powers - Delegated legislation vs. Conditional legislation - Jurisdiction of High Court - Ousting of revisional and appellate powers - Discretion of executive authority in selection of court for trial - Whether an ordinance providing for special courts and leaving their activation and case-assignment to provincial authorities is ultra vires the legislative power of the executive head in cases of emergency - Held: Intra vires.
(B) Emergency Powers - The determination of whether an emergency exists is the sole prerogative of the executive head. The provision that an ordinance shall come into force in a province only upon a declaration by the provincial government does not imply the absence of an existing emergency but represents foresight in state protection.
(C) Conditional Legislation - Leaving the local application of a statute to the judgment of a local administrative body does not amount to the delegation of legislative power. If the legislation contains the complete framework, the act of bringing it into operation under specified conditions is conditional legislation, not delegated legislation.
(D) Jurisdiction of High Court - An ordinance made by the executive head under emergency powers has the force of law as an Act of the legislature. Consequently, it can validly alter or repeal the revisional jurisdiction of the high court. (E) Executive Discretion - The power to direct whether a case be tried by a special court or an ordinary court is a matter of policy and not of law. There is no constitutional limitation prohibiting the law-making authority from conferring such discretion upon an executive authority.
Facts of the case:
Fifteen police constables were convicted by a special magistrate under an ordinance. The convictions were set aside by the high court and affirmed by the federal court on the ground that the ordinance was ultra vires the executive head. The ordinance allowed provincial governments to decide when to bring the law into force and which cases to refer to special courts, while ousting the high court's revisional jurisdiction.
Findings of Court:
The ordinance is not ultra vires. The executive head is the sole judge of the emergency. The arrangement for provincial activation is conditional legislation. The ousting of high court jurisdiction is valid under the governing act. The discretion to assign cases to special courts is a valid exercise of legislative power.
Issues: Whether the executive head was empowered to enact the ordinance; whether the ordinance constituted an invalid delegation of legislative power; whether the ousting of high court jurisdiction was valid; and whether the discretion given to provincial authorities to select cases for special courts was legally permissible.
Ratio Decidendi: The court held that the executive head's opinion on the existence of an emergency is non-justiciable. Conditional legislation, where the legislature sets the framework and an administrative body determines the timing or location of application, is valid. Since ordinances have the force of legislative acts, they can modify judicial jurisdiction. The choice of court for trial is a policy matter and does not violate constitutional principles.
Result: Appeal allowed. The judgment of the federal court set aside and the ordinance declared not to be ultra vires.
Legal Category Hierarchy
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constitutional law
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emergency powers
- ordinance making power
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delegated legislation
- conditional legislation
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emergency powers
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administrative law
- executive discretion
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crime and sentencing
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practice and procedure
- special courts
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jurisdiction
- appellate and revisional jurisdiction
-
practice and procedure
Judgement
Appeal (No. 1 of 1944), by leave of the Federal Court of India, from a judgment of that court (June 4, 1943), which affirmed by a majority a judgment and order of the High Court at Calcutta (April 21, 1943), passed in the exercise of its criminal re visional jurisdiction. By their judgment the High Court, on the sole ground that certain provisions contained in the Special Criminal Courts Ordinance, No. II., of 1942, were ultra vires the Governor-General of India, set aside the convictions of the fifteen respondents to this appeal, all police constables, by the special magistrate at Jessore (being a special court constituted under the ordinance) on charges of, inter alia, rioting, assault on a police officer and committing prejudicial acts tending to cause disaffection in the police force. A sentence of two years rigorous imprisonment was imposed on each of them. The High Court ordered the respondents to be released and re-arrested and tried in the ordinary courts according to ordinary process of law.
The question for determination in this appeal was whether or not the Governor-General was empowered by s. 72 of the Government of India Act, 1935, as set out in sched. IX thereof, read with the India and Burma (Emergency Provisions) Act, 1940, to enact Ordinance No. II. of 1942.
By s. 72 of the Government of India Act, 1935, read with the India and Burma (Emergency Provisions) Act, 1940 "The Governor-General may, in cases of emergency, make and " promulgate ordinances for the peace and good government 14 of British India or any part thereof, and any ordinance so made shall....have the like force of law as an Act passed by the Indian legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian legislature, and may be controlled or superseded by any such Act.”
By the Special Criminal Courts Ordinance, No.II of 1942 s. 1, sub-s.3 —It shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded."
"5. A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct . . . ."
"10. A Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct . . . ."
"14. If any question arises whether, under any order made under s. 5 or s. 10, an offence is triable by a Special Judge or a Special Magistrate, the question shall be referred for decision to the authority which made the order and the decision of that authority shall be final."
"16.—(1) A Summary Court shall have power to try such offences or classes of offences, or such cases or classes of cases as the District Magistrate, or in a Presidency-town the Chief Presidency Magistrate, or a servant of the Crown authorized in this behalf by the District Magistrate or Chief Presidency Magistrate, may by general or special order direct
"Provided that no person shall be tried by a Summary Court for an offence which is punishable with imprisonment for a term exceeding two years, unless it is an offence specified in sub-s.1 of s.260 of the C
