BASANT CHANDRA GHOSE Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by a detenue against an order of the High Court at Patna dismissing his application under Section 491 of the Criminal Procedure Code. The appellant was arrested on March 27, 1942, under an order dated March 19, 1942, purporting to be made by the Governor of Bihar in exercise of the powers conferred by Rule 26 of the Defence of India Rules. The application under Section 491 was filed on April 28, 1943. For one reason or another, the hearing of the application was delayed till February, 1944, and in the meanwhile, Ordinance III of 1944 was promulgated on January 15, 1944. The application was dismissed by the High Court; but, on appeal, this Court held that the new Ordinance (Ordinance No. III of 1944) did not take away the power of the High Court to deal with the matter and accordingly remitted the case to the High Court with a direction that the petition be restored to the file and disposed of in due course of law. The order of this Court was passed on May 23, 1944. On July 3, 1944, the Governor of Bihar passed two orders, Nos. 3928-C and 3929-C. By the first, he cancelled the order of detention dated March 19, 1942, and by the-second, he directed the detention of the appellant on the ground that it was necessary so to do "with a view to preventing him from acting in a manner prejudicial to the maintenance of public order and the efficient prosecution of the war." When the application again came on for hearing before the High Court, reliance was placed by the Advocate General of Bihar on the order of July 3, 1944, and he contended that it was unnecessary in the circumstances to enquire into the validity of the order of March 19, 1942. Objection, was taken on behalf of the detenue to this course and the validity of the orders of March 19, 1942, a July, 3, 1944, was questioned on various grounds. These contentions were discussed at considerable length by the learned Judges of the High Court and they held that the objections were untenable; the petition was accordingly dismissed. Hence this appeal.

(2.) Two constitutional points were urged before us. The first was to the effect that Ordinance No. III of 1944 was ultra vires the Governor General in so far as it purported to authorise detention on the ground that the detenue was likely to act in a manner prejudicial to the efficient prosecution of the war. It was contended that legislation relating to the prosecution of war was not within the ambit of any of the lists in Schedule VII to the Constitution Act and that therefore neither the Indian Legislature nor the Ordinance-making authority was competent to legislate in respect of that topic. It was recognised that "preventive detention for reasons of State connected with defence" was a subject specified in entry No. 1 in List I, but it was urged that it could not be assumed that the prosecution of the war was necessarily a matter of defence and that the war may in certain circumstances be a war of aggression or conquest. We are of the opinion that there is no force in this contention. The reference to "to the efficient prosecution of the war " in the Ordinance as well as in the Order of detention must be understood in the light of the circumstances in which the Ordinance came to be passed. The language of Clause 3 of the Ordinance is only a repetition of the language of Section 2(i) of the Defence of India Act and that Act begins; by referring to the proclamation of the Governor General under Section 102 of the Constitution Act to the effect that the security of India is threatened by the war. Events of which the Court is entitled to take judicial notice were happening in 1942, 1943 and 1944 with reference to which it could clearly be postulated that the efficient prosecution of the war was necessary for the defence of India.

(3.) It was next contended that Clause 11 of the Ordinance was invalid in so far as it precluded certain matters being adduced in evidence. It was said that this was in effect an attempt to repeal pro-tanto certain provisions of the Indian Evidence Act, 1872, and it was not within the power of the Governor General to do so by an Ordinance. This contention is misconceived. It was admitted that it was within the power of the Governor General to enact such a provision to be in force during the time that the Ordinance itself was in force. What was contended was that he had no power to affect the provisions of the Evidence Act permanently. Clause 11 of the Ordinance does not purport to do so. Its words are general. The utmost that could be said is that if the prohibition enacted by it were sought to be enforced after the expiry of the Ordinance, a question might arise as to whether the prohibition would then remain in force. But that is no ground for holding that the clause is invalid even in so far as it prohibits certain things being done during the currency of the1 Ordinance. Objection was also taken to the validity of Sub-clause (2) of Clause 11. It was contended on the authority of Chester v. Bateson (1920) 1 K.B. 829 that such a provision could not be said to be for the peace and good government of British India and could not therefore be held to be authorised by Section 72 of the Ninth Schedule to the Constitution Act, It is unnecessary for the decision of this case to deal with this question even if it were open to the Court to examine the correctness of the decision of the Governor General as to the requirements of any particular situation.