P L D 1954 Sind 193 (PLP)

CONSTANTINE, C. J.‑The same question of law arises in these four applications under section 491 Cr. P.. C. Sind Act 28 of 1952, under which the applicants were convicted and sentenced, was enacted by the Governor of Sind by virtue of the powers conferred upon him by proclamation under section 92‑A of the Constitution Act. It is contended on behalf of the Applicants that section 92‑A is invalid and constitutes a nullity in law. Section 92‑A was inserted by the Governor‑General in, the Constitution Act by section 2 of the Governor‑General's, Order 13 of 1948 by way of amending the previous Governor‑General's Order 22 of 1947. The power to make such orders rests upon subsection (1) of section '9 of the Indian ‑Independence Act 1947. This subsection reads as follows :‑ "9 (1) The Governor‑General shall by order make such provision as appears to him to be necessary or expedient‑ . . (a) for bringing the provisions of this Act into effective operation; (b) for dividing between the new Dominions, and between the new provinces, to be constituted under this Act, the powers, rights, property, duties and liabilities of the Gover nor‑General in Council or, as the case may be, of the relevant provinces which under this Act, are to cease to exist; (c) for making omissions from additions to, and adapta tions and modifications of, the Government of India Act, 1935, and the Orders in Council, Rules and other instruments made there-under, in their. application to the separate new Dominions (d) for removing difficulties arising in connection with the transition to the provisions of this Act; (e) for authorizing the carrying on of the business of the Governor‑General in Council between the passing of this Act and the appointed day otherwise than in accordance with the provisions in that behalf of the Ninth Schedule to the Government of India Act, 1935; (f) for enabling agreements to be entered into, and other acts done, on behalf of either of the new Dominions before the appointed day; (g) for authorising the continued carrying on for the time being on behalf of the new Dominion, or on behalf of any two or more of the said new provinces or services and activities previously carried on behalf 'of British India as a whole or on behalf of the former provinces which those new provinces represent; (h) for regulating the monetary system and any matters pertaining to the Reserve Bank of India; and (i) so far as it appears necessary or expedient in connec tion with any of , the matters aforesaid, for varying the constitution, powers or jurisdiction of any legislatures, Court or other authority in the new Dominions and creating new legislatures, Courts or other authorities therein." Section 9 further provides that any order is subject to the same powers of repeal and amendment as the laws of the legislature of Pakistan, and that no order could be made by the Governor‑General after the 31st day of March 1949. Mr. Fazlur Rahman argued that the section must be construed in a narrow sense so as to authorise only subsidiary or ancillary modifications of the Government of India Act made necessary by the transition from an undivided India to two separate Dominions. Mr. Rahman sought to support this argument by reference to, the other clauses of subsection (1) of section 9 which, he contended, were also concerned with purely ancillary and subsidiary matters. "We think, however, that the words in their application to the separate two Dominions, mean that the power of making orders given by this clause extended to making orders applicable to the separate new Dominions and not to making orders applicable to undivided India. As regards the argument‑ that from other clause of the subsection, it should be presumed that clause (c) had a restricted meaning, we may point out that clause (a) had a wide significance, since whatever the Governor‑General thought necessary or expedient for bringing the provisions of the Indian Independence Act into effective operation, could be dealt with by order according to, clause (a). In our opinion, the plain grammatical meaning of clause (a) of subsection (1), of section 9 is wide enough to cover the addition to the Government of India Act 1935 made by the Governor General's Order in inserting section 92‑A. Mr. Fazlur Rahman based another contention upon proviso (c) to subsection (2) of section 8 of the Indian Independence Act. This subsection (2) (so far as material) provides that the provisions of the Government of India Act 1935 and of orders, rules and instruments made there- under shall, so far as applicable, and subject to any express provisions of the Independence Act and with such omissions, adaptations and modifications as may be specified in orders of the Governor‑General under the next succeeding section, have effect. Proviso (c) provides that so much of the said provisions as requires the Governor‑General or any Governor to act in his discretion or exercise his individual judgment as regards any matter, shall cease to have effect as from the appointed day. Various provisions were scattered about the 1935 Act regarding discretion or individual judgment of the Governor- General or Governors. The Governor‑General's Order 22 of 1947 deleted inter alia sections 45 and 93 which had conferred power upon the Governor‑General in the case of section 45 and upon the Governors in the case of section 93, to issue proclamations superseding the normal constitution. In section 93 the Governor in issuing proclamations, was to act in his discretion subject to the discretion of the Governor- General. Section 92‑A, however, does not speak of any discretion or individual judgment on the part of the Governor -General. Moreover, according to section 90 of the Constitu tion Act, there shall be a Council of Ministers to aid and guide the Governor‑General in the exercise of his functions and according to section 17(1) of the Constitution Act, all the executive actions of the' Federal Government shall be expressed to be taken in the name of the Governor‑General, and finally section 10 (4) of the Constitution Act provides that the question whether any and, if so, what advice was tendered by the ministers to the Governor‑General shall not be inquired into by any Court. We think it clear that the reason why discretion an individual judgment were deleted, is that in exercise of discretion and individual judgment the Governor‑General and the Governor were controlled by his Majesty's Government in the United Kingdom, and hence independence require the deletion. As the Constitution now stands, the use of section 92‑A (unlike the use of the former sections 45 and 93) is not repugnant to independence. Mr. Fazlur Rahman argued that the Governor in exercising his powers of legislation is acting on behalf of the Governor‑General, and hence the maxim delegatus delegare non pot est applied. To this the short answer is that no where is it provided that the Governor‑General shall himself exercise the powers of the provincial legislature. In other cards, the Governor‑General is not delegates and there is no reason why the Governor‑General in exercise of his powers, should not order that the Governor of the Province should exercise the powers of the Provincial legislature. Mr. Fazlur Rahman argued that since section 1 of the Indian Independence Act stated that the two Dominions were set up and since the word "Dominion" according to him necessarily implied democratic institutions, therefore, section 92‑A was repugnant to the Indian Independence Act. To this the answer is that the expression "Dominion" is used with reference to the idea contained in the historic declaration of 1926 that the Dominions are autonomous within the British Commonwealth, equal in status, in no way subordinate. It is true that a system of Government responsible to the elected assemblies applies in all the Dominions, but the chief connotation of the word "Dominion" is independence of Her Majesty's Government in the United Kingdom. The Indian Independence Act has left it to the sole discretion, of the legislature of the Dominion to frame its future Constitution, and in a legal sense that legislation is unfettered by any constitutional theory of democracy. For these reasons, therefore, we consider that the order of the Governor‑General inserting section 92‑A was valid. Hence the Governor of Sind had the power to enact Sindh Act 28 of 1952. The only objection raised by Mr. Fazlur Rahman related to this constitutional issue. We, therefore, dismiss these four applications. We certify under section 205 of the Government of India Act 1935 that these four cases involve a substantial question of law as to the interpretation of the Government of India Act and as to the interpretation of the Indian Independence Act 1947, and of the Governor‑General's order relating to section 92‑A of the Government of India Act. A. H. Applications dismissed.