EMPEROR Vs. HANMANT RAO

JUDGEMENT

(1.) I should like to make this observation. The power to entertain appeals here arises, not from the relation of this Board to the Court below, as a Court of criminal appeal, but as the Privy Council, advising the Sovereign with regard to the exercise of the prerogative. The prerogative is that remnant of the power of the Crown which remains to the Crown to interfere with Tribunals of Justice which does not exist in this country at all; it has passed away in the historic development of the constitution; it used to exist, and it does exist to some extent in the case of the Crown colonies, because they are managed directly by the Crown through ministers, but when one comes to self-governing dominions I should be very sorry to say that even the principles of Dillet's case could be applied to the constitution of Canada. The constitution of Canada and of Australia, taking those as illustrations, have so developed that they are virtually self-governing dominions, and it is a question, to my mind, as to whether the principles of Dillet ti case apply in the case of self-governing dominions. India is not yet in that state, but it has been publicly said that India is recognised by the Imperial Government as being on the way to becoming now under a self-governing dominion, and therefore even with regard to India, it is with the utmost care that we should pronounce any proposition that that disappearing fragment of the prerogative, of which I have spoken, remains. It follows, therefore, that unless you can prove that there was no proper trial at all, that the forms of all judicial procedure were disregarded, not merely according to local ordinances, but according to what I may call the unvarying character, which is common to all, we cannot interfere. If there was anything very very gross, it might come under the same category, but even then, the Crown has to be extraordinarily cautious in asserting the survivor even of that very restricted prerogative which existed fifty years ago, but which may not exist now. I think you will find that referred to in some of the words of Lord Watson in Dillet's case. What you have told us so frankly is that you cannot bring the case up to that; it is a mistake, if at all, in the exercise of its jurisdiction, by the Court in India; we are not a Court of criminal appeal, and cannot take cognizance of a mere mistake. It is not a case in which justice has been set at naught and, therefore, we have no jurisdiction. I should like to add this. I do not think it right for either counsel or Privy Council agents to encourage the bringing of such petitions as the one we have had before us to day; it is a waste of time of the Judicial Committee and, after the repeated intimations which their lordships have given, and the recent intimation of my noble and learned friend, Lord Dunedin, it is hardly respectful to the Tribunal.

(2.) [Sir George Lowndes, Will your lordships allow me to say this : I speak for all the members of the Bar who have practised in India and are now practising here. We do all we possibly can to discourage these applications, but we have been told by the Attorney General that, when we are instructed to appear on these petitions, we must do so. Your lordships would help us if you had a rule that no petition should be presented here without a certificate of counsel that it is within the rules of the Board. At present we are helpless lean tell your lordships as frankly as I can what the position is.]

(3.) [VISCOUNT HALDANE, We are much obliged to you for your suggestion.]