1931 JTR(SC) 24
1931 AIR(PC) 111 ; 1930 58 LawReportsInd.App. 169 ; 1931 33 BomLR 950 ; 1931 34 LW 57 ; 1931 AllLJ 448 ; 1931 MWN 601
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
BHAGAT SINGH - Appellant
Versus
THE KING-EMPEROR - Respondents
.
Decided On : Feb. 27. 1931
The executive head possesses sole authority to determine the existence of an emergency and the necessity of an Ordinance for peace and good government. Such determinations are non-justiciable provided the Ordinance does not exceed the legislative powers of the legislature.
Act
Referred
:GOVERNMENT OF INDIA ACT
: S.72
(A) Government of India Act, 1915 - Section 72 - Power to promulgate Ordinances - Emergency and peace and good government - Determination of emergency - The executive head is the sole judge of whether a state of emergency exists, as the provision requires immediate action and the power to promulgate is vested in that office alone. (Paras 10-12)
(B) Government of India Act, 1915 - Section 72 - Peace and good government - The executive head is the sole judge of whether an Ordinance conduces to the peace and good government of the territory - The power is absolute, subject only to the restriction that it cannot do what the legislature would be unable to do. (Para 14)
(C) Government of India Act, 1915 - Section 84(a) and Section 65 - Repugnancy - If an Act could be passed by the legislature in the same terms as the Ordinance, the point regarding repugnancy vanishes. (Para 15)
Facts of the case:
Petitioners were convicted by a special tribunal constituted under an Ordinance promulgated by the executive head under statutory powers for cases of emergency. The petitioners challenged the validity of the Ordinance on the grounds that no emergency existed, it was not for peace and good government, and it was repugnant to the constitution of the High Court.
Findings of Court:
The petition for special leave to appeal was dismissed as the objections regarding the existence of an emergency and the purpose of the Ordinance are matters for the executive head's determination. The argument regarding repugnancy was rejected as the legislature possessed the power to enact similar laws.
Issues: Whether the executive head has the sole authority to determine the existence of an emergency and the necessity of an Ordinance for peace and good government, and whether the Ordinance was repugnant to existing judicial charters.
Ratio Decidendi: The determination of a "state of emergency" and whether an Ordinance is for "peace and good government" rests exclusively with the executive head, as these are matters of executive judgment requiring immediate action. Furthermore, an Ordinance is not void for repugnancy if the legislature would have had the power to pass a similar Act.
Result: Petition dismissed.
(B) Government of India Act, 1915 - Section 72 - Peace and good government - The executive head is the sole judge of whether an Ordinance conduces to the peace and good government of the territory - The power is absolute, subject only to the restriction that it cannot do what the legislature would be unable to do. (Para 14)
(C) Government of India Act, 1915 - Section 84(a) and Section 65 - Repugnancy - If an Act could be passed by the legislature in the same terms as the Ordinance, the point regarding repugnancy vanishes. (Para 15)
Facts of the case:
Petitioners were convicted by a special tribunal constituted under an Ordinance promulgated by the executive head under statutory powers for cases of emergency. The petitioners challenged the validity of the Ordinance on the grounds that no emergency existed, it was not for peace and good government, and it was repugnant to the constitution of the High Court.
Findings of Court:
The petition for special leave to appeal was dismissed as the objections regarding the existence of an emergency and the purpose of the Ordinance are matters for the executive head's determination. The argument regarding repugnancy was rejected as the legislature possessed the power to enact similar laws.
Issues: Whether the executive head has the sole authority to determine the existence of an emergency and the necessity of an Ordinance for peace and good government, and whether the Ordinance was repugnant to existing judicial charters.
Ratio Decidendi: The determination of a "state of emergency" and whether an Ordinance is for "peace and good government" rests exclusively with the executive head, as these are matters of executive judgment requiring immediate action. Furthermore, an Ordinance is not void for repugnancy if the legislature would have had the power to pass a similar Act.
Result: Petition dismissed.
Solicitors for petitioners: Douglas Grant & Dold. Solicitor for Crown: Solicitor, India Office.
Judgement
Petition for special leave to appeal from convictions by the Lahore Conspiracy Case Tribunal, Lahore, on October 7, 1930.
On May 1, 1930, the Governor-General, in exercise of the powers conferred on him by s. 72 of the Government of India Act, 1915, made and promulgated the Lahore Conspiracy Case Ordinance, 1930, which transferred the trial of a case, known as the Lahore conspiracy case, to a tribunal to be
Law Rep. 58 Ind. App. 169 ( 1930- 1931)
Bhagat Singh V. King-Emperor 48
constituted by the Chief Justice of Lahore and to consist of three judges of the High Court; the tribunal was given powers to deal with wilful obstruction to its proceedings. The promulgation of the Ordinance was accompanied by a statement of the reasons moving the Governor-General to the exercise of his powers.
The terms of the Government of India Act, 1915, s. 72, as amended by the Act of 1919, Sch. II., Part II., appear from the judgment of the Judicial Committee.
The twelve petitioners, who had originally been charged with others before a magistrate on July 4, 1929, were tried by the Tribunal constituted under the Ordinance, and consisting of Hilton, Abdul Quadir and Tapp JJ.
On October 7, 1930, judgment was delivered convicting the petitioners of offences under s. 121 (waging war against the King), and s. 302 (murder) of the Indian Penal Code, also s. 120 B. read with the Explosive Substances Act. Three of them were sentenced to death, seven to transportation for life, and two to terms of rigorous imprisonment.
During the progress of the proceedings one of the petitioners had applied unsuccessfully to the Tribunal to consider and record a finding upon the question whether it had jurisdiction. There had also been unsuccessful applications to the High Court under ss. 491b and 561 of the Criminal Procedure Code by way of habeas corpus.
1931. Feb. 11. Pritt K.C. (with him Horace Douglas and C. Sidney Smith) for the petitioners. The power under s. 72 is subject to three conditions (1.) there must be an emergency ; (2.) the Ordinance must be for peace and good government; (3.) it must be one within the legislative power of the Indian Legislature. The prosecution did not show that any emergency existed. There was no emergency. The statement by the Governor-General accompanying the promulgation does not indicate the contrary. Secondly, the Ordinance was not one for peace or good government. Thirdly, it exceeded the power of the Indian Legislature, which by s. 65 and s. 84 (a) cannot legislate so as to affect Imperial legislation or the prerogative of the Crown. The letters patent of the Lahore High Court were issued by the Crown under s. 113 of the Act, and they expressly provide for the High Court hearing appeals in criminal cases.
Dunne K.C. and Wallach for the Crown referred to art. 37 of the letters patent, which provides that they are to be subject to, among other powers, that of the Governor-General under s. 72; otherwise counsel were not called upon.
At the conclusion of the argument their Lordships intimated that they would advise that the appeal should be dismissed, and that the reasons would be delivered later.
Feb. 27. The reasons for the report of their Lordships were delivered by
VISCOUNT DUNEDIN. This case does not fall within the strict rule that has been again and again Laid down that this Board does not and will not act as a tribunal of criminal appeal, because here the objection, if it were good, would go to the root of the jurisdiction. But it is subject to the ordinary criterion which is applied to all petitions for special leave to appeal, to wit, that leave will not be granted where upon the face of the application it is plain that on the merits it is bound to fail.
Now the only case that is made here is that s. 72 of the Government of India Act did not authorize the Governor-General to make the order he did constituting a special tribunal for the trial of the offenders
Law Rep. 58 Ind. App. 169 ( 1930- 1931)
Bhagat Singh V. King-Emperor 49
who, having been convicted, are now petitioners here. Sect. 72, as amended in 1919, is as follows " The Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, 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."
The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition It connotes a state of matters calling for drastic action, which is to be judged as such by some one. It is more than obvious that that some one must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.
Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this Board declaring that once the Ordinance was challenged in proceedings by way of habeas corpus the Crown ought to prove affirmatively before a Court that a state of emergency existed, or (6) by a finding of this Board —after a contentious and protracted inquiry—that no state of emergency existed, and that the Ordinance with all that followed on it was illegal.
In fact, the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it.
It was next said that the Ordinance did not conduce to the peace and good government of British India. The same remark applies. The Governor-General is also the judge of that. The power given by
s. 72 is an absolute power, without any limits prescribed, except only that it cannot do what the Indian Legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it.
It was urged that there was repugnancy between the Ordinance as passed and the constitution of the High Court of Lahore, and that the terms of s. 84 (a) make void the ordinance because of such repugnancy. But, as soon as it is admitted, as counsel candidly did admit, that an Act might be passed by the Indian legislature under the powers of s. 65 in the same terms as the Ordinance the point as to repugnancy vanishes.
Their Lordships must add that, although the Governor-General thought fit to expound the reasons which induced him to promulgate this Ordinance, this was not in their Lordships opinion in any way incumbent on him as a matter of law.
Their Lordships, for these reasons, have humbly advised His Majesty that this petition should be dismissed.