The Central Reserve Police Force Act, 1949, was not ultra vires the Government of India Act, 1935, and was a valid law when the Constitution of India came into force.

( 1 ) THESE are two appeals, one by the State of West Bengal and the other by the Union of India. The appeals are against the judgment and order of Mr. Justice Sabyasachi Mukharji dated the 18th April, 1972.

( 2 ) THE learned Judge held that the Central Reserve Police Force Act, 1949, was ultra vires the Government of India Act, 1935, and as such was not law in force within the meaning of Article 372 of the Constitution. He, therefore, directed the two appellants the Governments or rather the Union of India and the State of West Bengal to forbear from giving effect to the Central Reserve Police Force Act, 1949, in West Bengal and further directed them not to enforce the said Act in the State. He issued a writ in the nature of mandamus accordingly and made the Rule absolute. It is against this judgment that the appeals have been filed. Although there are two separate appeals, they are from the same judgment and order. I, therefore, propose to deal with the questions in the appeals in one judgment.

( 3 ) THE learned Judge also found a point in favour of the respondent No. 1 in these appeals and that is whether he has any locus standi to maintain this application. He held that he had the locus standi. No question, however, has been raised in these two appeals by the State of West Bengal and the Union of India regarding the question of locus standi. The appellants want a decision on the merits of the application and on the main point whether the Central Reserve Police Force Act, 1949, was ultra vires the Government of India Act, 1935 and was not the law enforced within the meaning of Article 372 of the Constitution. I, therefore, will not deal with the point of locus standi in these appeals.

( 4 ) THE central question in both the appeals is whether the Central Reserve Police Force Act, 1949, is a valid law. The Act was passed by the Constituent Assembly by virtue of Section 8 (1) of the Indian Independence Act, 1947. Under Sub-section (2) of Section 8 of the said Act, the Constituent Assembly while exercising the powers of legislation had only the powers that the Federal Legislature had under the Government of India Act, 1935. Under Article 372 of the Constitution, all existing laws in force prior to the Constitution were to continue until repealed, altered or amended by competent legislature or other competent authority. Therefore, in order to be law in force, the said law must have been a valid law validly passed when it was enacted. The core of the question, therefore, is whether the federal legislature had the powers under the Government of India Act, 1935, to enact the Central Reserve Police Force Act, 1949, There is a further Article in the Constitution, namely, Article 372-A of the Constitution which gives power to the President to adopt laws.

( 5 ) THE provisions of the Government of India Act, 1935, is, therefore, material for this purpose. Section 100 of the Government of India Act, 1935, deals with the subject-matter of Federal and Provincial Laws. It provides :--"100. (1) Notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the "federal Legislative List" ). (2) Notwithstanding anything in the next succeeding Sub-section, the Federal Legislature, and, subject to the preceding Sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the "concurrent Legislative List" ). (3) Subject to the two preceding subsections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any matters enumerated in List II in the said Schedule (hereinafter called the "provincial Legislative List" ). (4) The Federal Legi