JUDGMENT

Zafrulla Khan, J. - (Varadachariar J. concurring.) (Cases Nos. 13 to 21 of 194,3), These appeals have been preferred by the Bengal Government against orders passed by the Calcutta High Court directing the release of nine persons who were being detained Under Rule 26, Defence of India Rules. The detention orders had been passed on various dates in the years 1940 and 1942. By a judgment given on 22nd April of this year, See Keshav Talpade v. Emperor ('43) 30 A.I.R. 1943 F.C. 1 this Court held Rule 26, Defence of India Rules to be ultra vires in that it went beyond the rule-making power conferred on the Central Government by the Defence of India Act. Immediately after this judgment was pronounced, the applications, out of which these appeals have arisen, were filed Under Section 491, Criminal P.C., praying for the release of the detenus concerned on the ground that their detention was illegal. On 28th April, the Governor-General promulgated an Ordinance, 14 of 1943, whereby the rule-making power of the Central Government under the Defence of India Act was made wider so as to cover the terms of Rule 26 as it had all along stood. The section was so worded as to make this change operative as from the date of the Defence of India Act itself. By another section of the Ordinance it was provided:

For the removal of doubts it is hereby enacted that no order heretofore made against any person Under Rule 26, Defence of India Rules, shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made Under Section 2, Defence of India Act, 1939.

2. When the Habeas Corpus applications came on for hearing, reliance was placed upon the Ordinance as an answer to the applications, with the result that the validity of the Ordinance itself was challenged. Other questions were also raised in support of the applications. The various contentions have been summarized by Mitter J., as follows:

(I) That the whole of Section 2, Defence of India Act, both in its original and amended forms, is ultra vires the Indian legislature. (II) That the portion of Clause (x) of Section 2(2) of the said Act which has been added by the, amendment made by the Ordinance is ultra vires the Indian Legislature and accordingly of the Governor-General's powers Under Section 72 of Schedule 9. The corresponding portions of Rule 26, Defence of India Rules, are bad and consequently the orders of detention in the cases we have before us are bad (III) That the Governor-General has no power to repeal or amend directly any Act of the Federal Legislature by an Ordinance made and promulgated Under Section 72 of Schedule 9, Government of India Act, 1935. (IV) That it is only the Central Indian Legislature that has the power to repeal or amend an Act of the Central Indian Legislature passed under the provisions of Section 102, Government of India Act. (V) That the Governor-General has no power to legislate by such an Ordinance on any subject enumerated in List II of Schedule 7, Government of India Act. (VI) That in any event the Governor-General has no power to give retrospective operation to such an Ordinance. (VII) That in any event the Ordinance (14 of 1943) cannot affect proceedings which were pending at the date of its promulgation. (VIII) That Section 3 of the Ordinance (14 of 1943). has no independent existence apart from Section 2 of the said Ordinance and must stand or fall with that section. (IX) That Rule 26, Defence of India Rules, had no existence in the eye of law on 29th September 1939, when the Defence of India Act was passed and so does not exist even now either in its original or amended forma. (X) That even if Rule 26 be not ultra vires the detention of the nine persons whose cases are before us was improper.

3. On questions I, II, IV, V, VI and VII, the three learned Judges