P L D 1957 Supreme Court (Pak (PLP)

CORNELIUS, J.‑

This appeal is brought before the Court on special leave granted to the appellants, Dwarkadas and Mithoomal, against whom certain action has been commenced under the Sind Control of Goondas Act, XXVIII of 1952. The point raised in the appeal is as to the validity of this Act, which is challenged on the following grounds. This law was enacted in 1952 by the then Governor of the Sind Province, in the exercise of powers derived from section 92‑A of the Government of India Act, 1935. Section 92‑A was added to that Act, which was the Constitution Act at that time, by an Order of the Governor‑General XIII of 1948, which he purported to make under section 9 of the Indian Independence Act, 1947. By subsection (5) of the latter section, it was pro vided that "No order shall be made under this section . . . by the Governor‑General after the 31st day of March 1948, or such earlier date as may be determined, in the case of either Dominion by any law of the Legislature of that Dominion." By an Act of the then Constituent Assembly, namely, the Indian Independence (Amendment) Act, 1948, the date "1949" was substituted for the date "1948", and thereby the power vested in the Governor‑General under section 9 was extended for a period of one year. It was during this extended period that the Governor‑General made Order XIII of 1948, adding section 92‑A to the then Consti tution Act. In the Original Government of India Act, provision similar to that contained in section 92‑A had been made in section 93, which section itself was omitted by Order XXII of 1947 made by the Governor‑General of British India under the same section viz., section 9 of the Indian Independence Act. It will be convenient at the stage to reproduce the particular provisions in section 9 which are relevant in relation to these two Orders. The powers were given to the Governor General for the purpose of making "such provision as appears to him to be necessary or expedient‑(a) for bringing the provisions of this Act into effective operation. (b).......... (c) for making additions to, and adaptations and modifications of, the Government of India Act, 1935 and the Orders‑in‑Council, rules and other instru ments made thereunder, in their application to the separate new Dominions;" The central question for determination in this case turns on the meaning to be attached to the words "in their applica tion to the separate new Dominions." The contention of Mr. Fazlur Rahman, appearing for the appellants, is that these words must be confined in their meaning to the function of adapting the Act so as to make it intelligible and directly applicable to each of the two new Dominions separately. On the other side, the contention is that these words must be given their full meaning, and since the Governor‑General was expressly given discretion to act to the extent that appeared "to him to be necessary or expedient", the function was by no means of a purely mechanical nature, but involved also the possibility of changes of substance being made in the then Constitution Act for the purpose of adapting it to the individual requirements of the two new Dominions, considered as distinct units. The substance of the provisions contained in the old section 93 which was replaced in 1948 by the new section 92‑A was the conferment of power upon the Governor of a Province to assume, in certain circumstances which will be mentioned immediately, all or any of the powers vested in or exercisable by any Provincial body or authority. Such action was only to be taken when the Governor was satisfied that the Govern ment of the Province could not be carried on in accordance with the provisions of the Government of India Act, 1935. In brief, the power was one of suspending the Constitution in special circumstances. The section required that the Governor should act throughout in his discretion, and additionally, it was made obligatory that the imposition of a section 93 regime should be with the concurrence of the Governor‑General also acting in his discretion, i.e., without consulting his Ministers. But by section 8, subsection (2), proviso (c) it was provided that the field of discretion or individual judgment which had previously been reserved to the Governor‑General and the Governors of Provinces should cease to exist as from the appointed day, via., the day on which the Partition took effect. This feature furnishes a clue to one principal differ ence between the old section 93 and the new section 92‑A. The latter section speaks of a Governor being directed to assume powers in his Province "on behalf of the Governor General" where the expression "Governor‑General" necessarily means a Governor‑General acting on the advice of his Ministers, in other words, the Central Government. Thus by the making of a proclamation under section 92‑A, the result created would be that the elected representatives of a Province would cease to share in the responsibility of govern ing the Province, and in the place of their advice tendered to the Governor through his Council of Ministers, there would be substituted directions from the Central Government being in itself a representative government chosen from among representatives elected from all Provinces including the Province to which section 92‑A might for the time being remain applied. It follows that the application of section 92‑A to a Province would not necessarily mean the imposition of purely authoritarian rule, for the will of the people of the Province could still gain expression through the presence of its representatives in the Central Legislature and also in the Central Cabinet. For this reason, it is impossible to accept the argument of Mr. Fazlur Rahman that by the insertion, or rather the re‑insertion of section 92‑A into the Government of India Act, something was done which was contrary to the con ception of a "responsible democtratic Constitution of a contrary within the (British) Commonwealth of Nations." The difference which an Order under section 92‑A made to a Province lay in a change of advice rather than of agency. For, the Government of India Act by its expression made the Governor the single representative of executive power in his Provinces while at the same time, directing that he should act in accordance with the advice of his Council of Ministers. (This is true of the period after partition upto that time there was a division of responsibility by the delimitation of functions of the Governor in his discretion and his individual judgment). In a section 92‑A regime, the Governor remains still the single executive head of the Province, but where the Council of Ministers had been dissolved as was usually the case, and their advice was not available, direction from the Central Government which was always to be constituted on the basis of popular representation was substituted for that advice. This state of affairs could only be brought about where a grave emergency arose, or the provisions of the Constitution regarding the establishment and the maintenance of popular representative Government in the Province could not be effectively carried out. That such emergencies do arise in the histories of countries which are governed on a democratic pattern, no one in Pakistan at least can truthfully deny. Consequently, the contention that the insertion of a provision such as that in section 92‑A constituted a denial of democracy cannot be accepted. While we are on this part of the case we may usefully refer to the Government of India (Amendment) Act, 1955, which was passed by the Constituent Assembly of Pakistan on the 10th October 1955. By this Act, section 92‑A was repealed and in its place, a new section 93 was inserted in the Government of India tact, 1935, containing substantially the same provisions with certain additional provisions including one for the exercise of the powers of the Provincial Legisla ture by or under the authority of the Federal Legislature. The new section was in many respects an elaboration of section 92‑A and it is of interest further to note that it has been included in substantially the same form as Article 193 of the Constitution of Pakistan which was passed into law on the 2nd March 19S

6. It is thus perfectly clear that the presence of a provision such as section 92‑A in the Govern ment of India Act, 1935, was not considered by the Constituent Assembly of Pakistan to which power was entrusted to provide a new Constitution for the country, as being contrary to its duty of ensuring that Pakistan should be "a democratic State based on Islamic principles of social justice, wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam should be fully observed." (Preamble to the Constitution). When confronted with the fact that the original section 93 had been removed from the Government of India Act, 1935, by the Governor‑General in exercise of power under section 9 of the Indian Independence Act, 1947, Mr. Fazlur Rahman urged that this action was rendered obligatory upon the Governor‑General in the light of proviso (c) to subsection (2) of section 8 of the Indian Independence Act, 1947, to which reference has already been made. The argument is unavailing, for the simple reason that that proviso itself is so worded as to ensure that any provisions in the Act conferring discretion or individual judgment should lose all their force upon the 15th August 1947. Therefore, whether such provisions were excised from the Act or not, the powers in discretion and individual judgment were in any case avoided. The further argument that a restricted meaning should be derived from the words "in their application to the separate new Dominions" appearing in clause (c) of subsection (1) of section 9 of the A Indian Independence Act as if the function conferred by that clause was a purely mechanical function of adapting the Government of India Act, 1935, to the effect that there were to be two new Dominions, in place of the single country, b viz., British India, is equally lacking in force. For by the division of the country into two parts, very great and far-reaching changes were effected, which went beyond the mere creation of two national territories where previously there was only one. Taking, for instance, the question of the necessity of a provision similar to section 93 in the original Act, it might well have appeared to the political leaders of one of the intended new Dominions that such a provision was unnecessary for their purposes, while to the other set of leaders to whom the other new Dominion was to be entrusted for Government, it might have appeared that such a provision was indispensable for their needs. The question would turn upon whether or not either of these sets of leaders felt that among the Provinces which they would be required to administer one or more showed signs of political instability or inter alia that the boundary of their country was so drawn as to require a greater measure of security against external danger. In such a case, the Governor‑General of British India might have thought it necessary or expedient or both to excise section 93 for the purpose of applying the Govern ment of India Act, 1935, to one of the new two Dominions, but to leave it in the Act with or‑without modifications in its application to the other new Dominion. It is unnecessary to labour the point further, for it seems to us to be perfectly clear that the power conferred by clause (c) to subsection (1) of section 9 of the Indian Inde pendence Act, 1947, was in no way exceeded by the Governor‑ C General of Pakistan when by his Order XIII of 1948, he inserted section 92‑A into the Act. The Indian Independence (Amendment) Act of 1948 was validated by the Constituent Assembly of Pakistan by the Validation of Laws Act, 1955, which was passed on the 1st October 1955. Mr. Fazlur Rahman does not deny that this Act effectively validated the Indian Independence (Amendment) Act, 1948, but contends that the validation must be confined, as to acts done thereunder, within the words of section 2 reproduced below:‑ "Anything done thereunder in accordance with the provisions thereof shall be deemed to have been validly done." As has been seen already, the insertion of section 92‑A is within the powers conferred by section 9, subsection (1), clause (c) of the Indian Independence Act, 1947. There seems no doubt that the Constituent Assembly itself was of that opinion, for it was seized, throughout its existence with the question of providing a new Constitution for Pakistan, in the place of the Government of India Act, 1935, and that its attention was, at or about the relevant time, closely applied to the provisions of section 92‑A must be deduced from the circumstances that on the 10th October 1955, a mere ten days after the passing of the Validation of Laws Act, the Constituent Assembly replaced section 92‑A in the Government of India Act by an enlarged version, elaborating its provisions and numbered as section

93. For these reasons, we see no force in this appeal which we hereby dismiss with costs. A.H. Appeal dismissed.