P L D 1955 FEDERAL COURT 240
(Appellate Jurisdiction)
Present : Muhammad Munir,
C. J., A. S. M. Akram, A. R. Cornelius, Muhammad Sharif and S. A.
Rahman, JJ
(1)
FEDERATION
OF PAKISTAN,
(2)
MUHAMMAD ALI,
(3)
CHAUDHRI MUHAMMAD ALI,
(4)
MAJOR GENERAL ISKANDER
MIRZA,
(5)
M. A. H. ISPAHANI,
(6)
DR. A. M. MALIK,
(7)
DR. KHAN SAHIB
(8)
GENERAL MUHAMMAD
AYUB KHAN,
(9)
GHYAS-UD-DIN
PAIHAN AND (l0) MIR
GHULAM ALI TALPUR Appellants
versus
Moulvi
TAMIZUDDIN KHAN-Respondents
Constitutional Civil Appeal No. 1 of 1955, decided in Pakistan
v, April 1955.
(On appeal from the judgment and order of the Chief Khan Court of Sind at Karachi,
dated the 9th February
1955, in -- Writ Petition No. 43 of 195--- P L D 1955 Sind 96). Indian Independence Act,
1947, Ss. 5. 6 (3), 8 (I), 223-A, C J Assent of Governor-General
necessary to all legislations of Constituent
Assembly, including those making provision as to the Constitution of the
Dominion under S. 8 (I)-Constituent Assembly acting under S. 8 (I) acts
as the "Legislature of the Dominion"-S.
223-A, Government of India Act, 1935, invalid for want of .such assent-Rule 62, Rules of Procedure of Constituent Assembly-Dominion Status-Independent Dominion History
fsand background-Governor-General part of Legislature-King's
Prerogative-Constituent Assembly,
whether sovereign-Contemporanea Expositio and argument ab incon venienti-Assent need not
be in writing.
The Constituent Assembly of Pakistan was dissolved by the Governor-General by a Proclamation dated the 24th of October,
1954 and a re-constituted Council
of Ministers was set up. The President
of the Constituent Assembly, Moulvi Tamizuddin Khan (respondent)
thereupon put in a Writ Petition (under
section 223-A, Government of India Act, 1935) in the Chief Court
of Sind against the Federation of Pakistan and the members
of the re-constituted Council of Ministers (appellants) praying that a writ in the nature of mandamus be issued against
the appellants restraining them from
implementing the Proclamation of the 24th October, 1954 and from
interfering with the exercise of
respondent's functions as President of the Constituent Assembly, and another
writ in the nature of quo warranto
with a view to determining the validity of appellants' appointment as members
of the Council of Minister.
The appellant's reply inter alia
was that the dissolution of the Assembly was valid and that the Chief Court has no jurisdiction to issue
the writs, because section 223-A was not validly enacted for want of assent of the Governor General to the enactment
(Government of India (Amendment) Act, 1954), inserting that section in the
Government of India Act,
1935.
The Chief Court issued the
writs prayed for, holding that the Acts of the Constituent Assembly, when it did not function as the Federal
Legislature did not require the Governor-General's assent. The Federation of Pakistan and the
re-constituted Council of Ministers appealed to the Federal Court.
Held, (Per Muhammad Munir, - C.
J., A. S. M. Akram, Muhammad Sharif and S. A. Rahman, JJ. agreeing ; Cornelius, J., contra).-The Constituent Assembly when it functions under subsection (I) of section
8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion
within the meaning
of section 6 of that Act, and under subsection (3) of the latter section
the assent of the Governor General is necessary to all legislations by the Legislature of the Dominion. Since section 223-A of the Government of India Act
under which the Chief Court of Sind assumed jurisdiction to issue the writs did not receive such assent, it was not yet
law, and that therefore that Court had no jurisdiction to issue the writs.
In view of this conclusion,
the Court did not go into the other issues in the case.
The main conclusions
supporting the above opinion were :
The position of the Constituent
Assembly is that it is the Legislature of the Dominion when it makes laws for the constitution of the
Dominion and the Federal Legislature when it functions under the limitations imposed upon it by the Government of India Act, 1935.
The Crown is a constituent
part of Parliament in the United Kingdom and of all Dominion Legislatures either because it is
expressly so stated in the constitutional statutes or because the Crown appoints the Governor-General who is
empowered to give or withhold assent to the legislation of the Dominion. The same was the position, under the Government of India Act, 1935,
i. e. the Governor-General, was a part of the Federal Legislature. It is this common restriction that exists on the
Dominion legislation which subsection (3) of section 6, Indian Independence
Act, 1947 intended to enact when it
provided that the Governor-General of the Dominion shall have full power to assent in His Majesty's name (including the power to withhold assent)
to the laws of the Legislature of the Dominion.
The restrictions are illustrative of the constitutional position that assent
to the Dominion legislation by the Crown or its representative is indispensable and has in no instance
ever been dispensed
with by the Crown. [ibid]C
The provisions in Constitutions
of other Dominions relating to assent do not create in tile Crown or to its representative a new right, but
confirm an existing right and merely provide the manner in which that right is to be exercised. Thus if the right
to withhold assent to Dominion
legislation
is inherent in the . Crown .and the statute that legislates on that right merely says that a bill after it has been passed by the popularly elected
House or Houses shall be presented for - assent to the Governor-General, , who will give assent to that bill or withhold
it there from,
the statute does not create the right to withhold assent but
merely describes the manner in which that right is to be exercised. Similarly the provisions in the Government of India Act which give to the Governor-General
the right to withhold assent from legislation do not confer on, or create a new right in, the Crown ; on the contrary,
they implicitly recognise such right and regulate the manner in which it is to be exercised. 1t is
for this reason that fiction. of making the Crown a constituent of the legislature is resorted to, because neither
the King nor his representative, the Governor-General, is a member of the legislature like other members:
The King or the Governor-General is a part of the
Legislature only in the sense that all bills passed by the Legislature are presented to him, so that he may exercise
his right of giving or withholding assent.
Thus subsection (3) of section 6 produces the same result by giving to
the Governor-General full power to assent in His Majesty's
name to any law of the Legislature of the Dominion.
It makes the Governor-General
a constituent part of the legislature inasmuch as the right, to give assent necessarily includes in it the right to
withhold assent. Every bill must therefore be presented to him to provide
him an occasion to exercise
that right, and unless a bill is so presented a constituent part of the Legislature does not function
and the proposed
legislation does not become law. There is, therefore, no distinction between
those constitutions where the Crown is a constituent part of the Legislature and the Legislature of the
Dominion of Pakistan whose functions are being
exercised by the Constituent Assembly
and to whose legislation assent is enacted by subsection
(3) 'of section 6 as a necessary condition.
"The powers of the
Legislature of the Dominion" in subsection (1) of section 8 ' refer back
to the powers of the Legislature of
the Dominion defined in section 6, which the Constituent Assembly was to
exercise in its capacity of Legislature of the Dominion.
The provisions
of section 6 are applicable to the powers given to the Constituent Assembly by subsection (1) of section
8 and the restriction as to the Governor-General's assent
to legislation by the
Legislature of the Dominion, whatever may be the character of that legislation,
is applicable when the Constituent
Assembly exercised the powers of the Legislature of the Dominion under subsection (1) of section
8. That subsection does not say that the constitution of the Dominion
shall be made by the
Constituent Assembly. It assumes that the powers of the Legislature of the Dominion include the power to make
provision as to the constitution of the Dominion, declares that those powers
shall be exercisable in the first
instance by the Constituent Assembly
and directs that references in the Act to the
Legislature of the Dominion shall be taken as references to the Constituent Assembly. The plain words of subsection (1) of section
8 that "reference in this Act to '
the Legislature of the Dominion shall be construed accordingly" have the
effect of substituting the
'Constituent Assembly for the. words "the Legislature of each of the new
Dominion" in subsections (1) and
(3) of section 6. That being the position, there can be no escape from the conclusion that the Governor-General's
assent to the laws made by the, Constituent Assembly is an necessary as his assent
to any future Legislature of the Dominion
brought into existence by the Constituent Assembly to replace
itself.
Legislation is the exercise
of a high prerogative power and even where it is delegated by statute or charter to a legislature, in theory it is always subject to assent whether
that assent be given by -the
King or by a person nominated by
the King. In the British system there is not a single instance to the contrary. That necessity was
enjoined in the case of Pakistan so long as it continued to be a Dominion, though it was open to that
Dominion, if the Governor-General gave assent to a bill of secession to repudiate its Dominion
status. The force of the words `full power to assent' would be realised if a situation arose where a
bill of secession came up before :the Governor-General for assent. So far as His Majesty was
concerned he had given full powers to his Governor-General to assent
to any legislation of the Dominion ; but the Governor-General, though he was a representative of the King, was also the
representative of the Dominion in the sense that he was a person
in whom the majority party of the Assembly had confidence. He would, therefore, have no hesitation, and would also have the
requisite authority to give assent. If, however, he withheld assent, his' immediate recall by His
Majesty would have been successfully insisted upon by the Assembly
and the assent could then have been obtained from his successor.
The word `law' in subsection
(3) of section 6 has been used in a general sense, namely, any proposed
legislation which has not as
yet received the assent of the Governor General.
The
legislation of the, Constituent Assembly under subsection (1) of section, 8 is
a part of the government of the
Dominion within the meaning of section 5 arid 'the whole scheme of the Government of India Act proceeds on the
assumption that the Governor-General represents the . Crown when he assents in Her Majesty's name to the laws, of the Federal
Legislature. Therefore it seems
to me to be an impossible proposition to assert that the .making of laws is not
a part of the government of the Dominion,
and that being so no reason whatsoever has been suggested
why the making of constitutional laws should not
be a part of the Government of the Dominion. If the Governor-General represents the Crown for the purposes
of the government of the Dominion when he
gives assent to the laws passed by the Federal Legislature, it must a fortiori
follow that he represents the Crown
for the same purpose when he assents to constitutional laws, because in a State like ours it
is impossible to conceive of a Government without there being a constitution.
Rule 62 of the Rules of Procedure of the Constituent Assembly, which provides
that when a bill is passed
by - the ,Assembly a copy thereof shall be signed by the President and it shall
become law on being published in the official
Gazette of Pakistan
under the authority of the President, is a mere
rule of procedure which cannot
amend the Constitution Act.
The rule of Contemporanea
expositio and argument as inconvenient does not apply to the present case
inasmuch as there
is no doubt as to the true meaning
of sections 6 and 8 as a whole, and there is no
estoppel.
As for the question
whether the Constituent Assembly is a sovereign body it is a mistake
to suppose that sovereignty in its larger sense was
conferred upon the Constituent Assembly, or that it could function outside the limits
of the Indian Independence Act. The only power given
to that Assembly was the,
power to make laws, constitutional or federal. In the former case, it exercised
the power to make provision as to the constitution of the Dominion
which had been included in the generality of the powers conferred by section 6 on the Legislature of the
Dominion, and in the later. it acted as the Federal Legislature with all the limitations to which that Legislature was subject. Apart from these powers, it had no other power and
it lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body in the State. It had, of course, legislative sovereignty as the
Legislature of the Dominion
but then the Governor-General was a constituent part of the Legislature.
Every. Act passed by it required the Governor General's assent, consistently
with the position that prevails
throughout the Dominions,. the Colonies. and the Possessions, settled or ceded or conquered, where the Crown
still retains to itself or has delegated to its representative the high prerogative right of assenting to bills.
Any attempt to construe
the Governor-General's power to withhold
assent, as a veto on legislation proceeds on a misapprehension and cannot
be made a ground for the inference that that power is an infringement of the legislative sovereignty of the Legislature of the Dominion
and - thus of the Constituent Assembly.
We are not concerned
with the consequences, however beneficial or disastrous they may be, if the undoubted
legal position was that all
legislation by the Legislature of the Dominion under subsection (3) of section 8 needed the assent of the
Governor-General. If the result is disaster, it will merely be another instance
of how thoughtlessly the Constituent Assembly proceeded with its business and by assuming for itself the
position of an irremovable legislature to what straits it has brought
the country.
The Governor-General is
appointed by the King or Queen and represents, him or her for the purposes of the government of the Dominion
(section 5 of the Indian Independence Act). The authority of the representative of the King extends to the exercise
of the royal prerogative in so far as
it is applicable to the internal affairs of the Member, State or Province, even
without express delegation, subject
to any contrary statutory or constitutional
provisions.
History
and background of Dominion Status discussed from pp. 258to 267. Incidents of an Independent Dominion indicated
from pp. 306 to 313.
Assent need not
be in writing.
M. A: Khuhro
v. The Federation of Pakistan P L D 1950
Sind 49, dissented from.
Khan Iftikhar
Hussain Khan of Mamdot v. The Crown (1951) F C R 24-P L D 1930 F C 15, not applicable.
Stockdale v. Hansard 1839-9-A
' & E 1, Ndlwana v. Hofmeyer
1937 A D 229 and Campbell v. Hall XX How-St.
Tr. 239 ref.
Per A. S. M. Akram, J.-Reading section 6 (3) and the 1st part of
section 8 (1) together the conclusion
which I am able to draw is that the Governor-General has full power to give
assent to any kind of law proposed by
the Legislature of the Dominion and that the Constituent Assembly which in the first instance
is to make provision -for the constitution of the Dominion
is to exercise the power
of the Legislature of the Dominion for that purpose. As a result, the assent of
the Governor-General ' becomes
necessary for the validity of even constitutional laws. In my opinion the words "full power to
assent" in the context carry with them full liberty to refuse -assent as power' conferred
does. not mean liability imposed or, obligation. created.
In the interpretation of laws and statutes plain words, should,
as a rule, be given their plain meaning and a laboured construction should not
be put ; upon them to bring into prominence some kind of a remote signification.
The effect of conferring
Dominion Status was that certain rights and liabilities as between the Dominion and the United Kingdom came into
existence, for instance, if the Dominion by its legislation negated allegiance to the Crown or severed'
connection with it, such a legislation perhaps
could not be considered as legally valid or justified. The expression, "Independent Dominion" has, therefore, been
purposely used in the Independence Act in order to give to the Dominion
a freedom of choice either to remain or to refuse to remain within the British
Commonwealth of Nations.
I am of the view that in the
absence of any express or implied provision in any enactment to the contrary, the assent of the
Governor-General is necessary before any constitutional measure framed
under section 8 (1) of the Independence Act, 1947;
can pass into law.
Per
Cornelius, J. (Contra).-The Indian Independence ,Act, 1947, possessed in
several respects the same character
as the Statute of Westminster, 1931, but with one major difference.......................... the
extent of freedom accorded to
the countries which, as Dominions, were to replace the Indian Empire, was in very material degree
greater than that which the older Dominions had gained in 1931. That, in my view, is the circumstance which justifies the application of the special
description "Independent Dominions" to the two new States which were brought into existence by means of this highly effective instrument.
The Governor-General owes nothing
to the British Sovereign except his warrant of appointment, issued upon the recommendation of the Government of Pakistan. No duty of any kind is prescribed which he owes to Her Majesty, except that of being
"faithful", appearing in the oath which Her Majesty is pleased to accept. The appointment, by its terms
affirms and emphasises that the Governor-General's
duty, or as it might be termed "allegiance", is to the Constitution,
as in existence from time
to time.
The Constituent Assembly was,
as a body, not a creation of the British Parliament. It is, in my opinion, to be regarded as a body created
by a supra-legal power to discharge the supra-legal function of preparing a Constitution for Pakistan. Its powers in
this respect belonged to itself inherently,
by virtue of its being a body representative of the will of the people in
relation to their future mode of
Government. In relation to constitutional provisions, it (Constituent Assembly) exercised the powers of the British
Parliament, which were in that respect, untrammelled by any laws.
With respect to the necessity of assent by the Governor.
General to laws of a constitutional nature passed by the Constituent Assembly, this
doubt arose at a very early stage. The Court is indebted to the learned Advocate-General of Pakistan for the assertion,
made on more than one occasion, that the Late Ministry
of -the Government of Pakistan (by which was meant the body of permanent officials constituting the staff of the Ministry under the Law Minister) had consistently advised
the Minister that -such
assent was sine` qua non. On the other hand, the Constituent Assembly had throughout maintained the view that assent was not necessary, and acting on that view had made
and promulgated a rule, No. 62 in the Rules
of the Constituent Assembly, to give formal
expression to that view.
The major limb (Constituent
Assembly) of the three great limbs of the autonomous State of Pakistan had clearly expressed in 1948 its
view on this question, which has now assumed so high an importance. I place the Constituent Assembly
above the Governor-General, the Chief Executive of the State, for two reasons, firstly that the Constituent
Assembly, was a sovereign body, and secondly
because the Statutes under and in accordance with which the Governor- -General
was required to function, were within the competence of the Constituent Assembly
to' amend.
The second great limb of the
State, namely the Executive 'Government of the Federation, has never, until after the event of the 24th October 1954,
shown any sign, of doubt on this point.
The
Government of Pakistan, composed of the Governor General and his Ministers, ,
have, throughout the relevant period,
been aware that the Constituent Assembly had formally declared that its constitutional laws became law under its own Rule 62, without
the need of the Governor-General's assent.
In illustration of the view of
the third great limb of the State, His Lordship referred to the three cases : M. A. Khuhro v. The Federation of Pakistan 1950-51 F C R 24= P
L D
1950 F C 15. Khan Iftikhar Hussain Khan of Mamdot v. The
Crown, P L D 1950 Sind 49, ex-Major-General Akbar Khan and Faiz Ahmad
Faiz v. The Crown P L D
1954 F C 87 and observed
For the first seven years of
Pakistan's existence, the three great limbs of this new "autonomous community" exhibited complete harmony
of view in regard to the point this Court is now. called upon to decide.
The Constituent Assembly.............. was a supra-legal body, not acting in its constitution-making
capacity within the
Constitution. It was not to be presumed that,' in this capacity, its
proceedings and decision were subject
to the qualified negative of the Governor-General, who was a statutory authority, owing existence - to
the interim Constitution.
With reference to the argument ab inconvenienti His Lordship observed
: -
The present is not a case where a mere "departmental construction", or even a judicial
or legislative construction is put forward, as a caution
against lightly disturbing .that which has been accepted and acted upon as settled law for a period, leading to
development of vested rights. The rule of stare
decisis is altogether too small in its content to fit the case. Here, the
greatest organs and agencies of the
State have been consciously and unanimously holding a certain belief, and have been acting upon it, in numerous respects
affecting the most fundamental rights of the entire people, It is difficult to imagine a law which affects so large
a proportion of the public as does a law
designed to grant adult suffrage, and to determine the composition of
Provincial Legislatures on that
basis. The Delimitation of Constituencies (Adult Franchise) _Act, 1951, was procured
by the Federal Government, was passed
by 'the Constituent Assembly, was put into operation by the combined labours of the Federal and
Provincial Governments, and has borne fruit in the shape of new Legislative Assemblies, which have been, busy ever since passim;
.new laws and in other
ways; regulating the lives of the
people. It is beyond conception to tabulate all the vested . rights and interests which have been developed in
conseclimice of this law. And there are many other laws which have produced 'extensive effects, which cannot possibly be ascertained with exactness. These circumstances should; in my
opinion, furnish an argument of almost insuperable character, in favour of. upholdihg what has been
the practice hitherto in regard to assent to constitutional laws,
The effect of section 6 (3)
read with section 8 (1) and section 5 of the Indian Independence Act, 1947 was stated
thus by His Lordship The Constituent Assembly
being designed to be a sovereign body and to exercise sovereign power,
including power to alter the Constitution subject to which the Governor-General was intended to act,
it would clearly be inconsistent with that design and purpose if the "qualified negative" of assent by the
Governor-General were imposed upon its constitutional
laws. Secondly, it being within the complete power of thg Constituent Assembly
to determine the constitution of
the "Legislature of the ~ Dominion", or Union Legislature, and to determine the scope of its legislative
competency as well as the mode in which its laws should be enacted, the British Parliament could'
not affect to prescribe the requirement of assent, as an essential formality, in respect of the laws made by such a
Legislature. This would be to usurp the functions
of the Constituent Assembly. To impose such a requirement upon laws of a constitutional nature made by the Constituent Assembly would be a direct
affornt to the position and authority of
that body. Hence the careful use of expressions in section 8,- Indian
Independence Act, to indicate that the necessary
powers of legislation should be exercisable by the Constituent Assembly. The words signify the courtesy owed by one sovereign
body to another. There was no direct
imposition of obligations, but the need being indicated, it was indicated also
that the Con- stituent Assembly, as previously agreed
upon by the plenipotentiaries in the negotiations between' the United
Kingdom Government and the representatives of the Indian people, might fulfil
the need.
Section 5, Indian Independence Act, cannot operate
to confer any right to grant assent beyond that conveyed
by the relevant words
in section 6 (3). Therefore, to draw the right of assent from section 5 seems
to me to be impossible.
In the context, (of section 6
(3) "any law" must mean "any law requiring assent for it to
become operative", i.e., any
Bill passed by the "Legislature of the Dominion", which under any
provision of law required to be presented
to the Governor-General for his assent, and to receive
assent before it could
become operative.
The term "Legislature of
the Dominion", cannot be, and was not intended to be, regarded as equivalent, at any time, to the
Constituent Assembly.
Neither the British Sovereign nor
the Governor-General, as such, was a part of the Constituent Assembly.
His Lordship arrived
at the conclusion
There is nothing in section 6
(3), Indian Independence Act, or in the status of Pakistan as a Dominion which creates the obligation that
all laws made by the Constituent Assembly, of a constitutional nature,
require the assent of the Governor-General, for their validity and operation.
Per S. A. Rahman,
'J,. (agreeing with the. leading
judgment).-After a comparison of 'sections 6 and 8 the inference seems to be irresistible
that during the interregnum prior to the promulgation of a fresh' constitution, . the Constituent Assembly in fact functions as the Legislature of the Dominion. It is only thus that full meaning
can be given to the words 'of subsection (1) of section
8 "references in this Act to the Legislature of the Dominion
shall be construed accordingly" and to the provision contained in subsection (3) of section 8. The plenary law-making powers of the
Legislature of the Dominion mentioned
in section 6 had to be divided
into two compartments for transitional period,
in order to keep the legislative machinery of the Government of India Act, 1935, in working order,
with all its limitations, side by side with the enactment of a new
Constitution. For the purpose of functioning
as the Federal Legislature under the Government of India Act, 1935, the
Constituent Assembly as the
Legislature of the Dominion, should be deemed to have placed the incident limitations on itself, under the provisions of subsection (6) of section
6 read with subsection (3) of section 8. I confess I am unable to
follow the process of reasoning which seeks to give a different meaning to "Legislature of the
Dominion" occurring in subsection (3) from that possessed by the expression in other subsections of section
6. The attempt seems to be directed towards investing the Constituent Assembly
with all the powers under section 6, without attracting the restriction (if restriction it really be) regarding
assent, provided for in the same section. The two submissions made that subsection (3) is confined
to the Federal Legislature functioning under the Government of India Act, 1935, and that the sub section would also be
applicable to laws passed by the future Legislature of the Dominion, appear to me to be mutually contradictory. The word `law' or
`laws' - used in subsection (3) obviously includes
laws of a constitutional character as a reading
of the whole of section 6
shows and must clearly mean enactments passed by the Legislature and awaiting
assent of competent
authority.
The words "full power"
(in section 6 (3) ) amply connote discretion to give or withhold assent, beside
indicating freedom from extraneous control,
in full measure. The presumption is implicit in the subsection that all such laws shall
be submitted to the Governor-General for his assent.
A reading of sections
5 and 6 together, would lead to the inference
that henceforth the prerogative of the Crown as respects assent, would,
in the case of each new Dominion, be exercised by the Governor-General as representing His Majesty.
Op the doctrine of
"Departmental Construction" as applied to the interpretation of statutes
His Lordship observed A practice in
contravention of a constitutional
provision'
contained in a statute, can
never ; abrogate or repeal a rule of strict law, with which alone the Courts
are concerned.
Faiyaz Ali, Advocate-General of
Pakistan and Kenneth Diplock, Q. C. Abdul Haq, Advocate, Federal Court, with
them) instructed by Iftikhar-ud Din, Attorney for Appellants.
L I. Chundrigar and Nazir Ahmad
Khan (Mahmud Ali, Sharifuddin Pirzada and Manzar-e-Alam with them) instructed
by M. Siddiq, Attorney for Respondents.
Dates of hearing: March 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18,
and 21, 1955.
JUDGMENT
MUHAMMAD MUNIR, C. J.--This is a constitutional appeal from the
judgment of the Chief Court of Sind,
dated the 9th February, 1955, directing writs of mandamus and quo warranto to issue against the appellants, the
Federation of Pakistan and certain Ministers of the Central Government, on the application of the
respondent Mr. Tamizuddin Khan. The application was heard by a Full Bench of five Judges of whom Mr. Justice
Hassanally Agha retired during the hearing
and, therefore, gave no opinion. The remaining four Judges were unanimous in
their findings. The leading judgment
was written by Constantine, C. J., with which Muhammad
Bachal, J., agreed,
while Vellani and Muhammad
Bakhsh A. Memon,
JJ., delivered separate
judgments.
Pakistan came into existence
as an independent Dominion and a member of the British Commonwealth of Nations on the 15th August, 1947,
with a provisional constitution of the Federal
pattern, under the Indian Independence Act, 1947 (10 & 11 Geo. VI,
Ch. 30) hereinafter also referred to
as the Act of 1947. Under that Act,
until a new Constitution was framed., the Government
of Pakistan was to be carried on under the Government of India Act, 1935 (26
Geo. V, Ch. 2), hereinafter referred
to wherever necessary
as the Act of 1935, subject to such adaptations and modifications as were consequential on her attaining the
status of an independent Dominion. A
Governor-General was to represent His Majesty for the purposes of the
government of the Dominion. The functions of the Legislature of the Dominion,
including the making of a constitution,
were to be performed by a Constituent Assembly which had also to function as
the Federal Legislature under the
adapted Act of 1935. At the relevant time the respondent wad the President of that Assembly. The Assembly
had not made any constitution when on 24th October, 1954, it was dissolved by the
following proclamation of His Excellency the Governor-General
:-
"The Governor-General having considered the political crisis
with which the country is faced, has with
deep regret come to the conclusion that the constitutional machinery has broken
down. He, therefore, has decided to
declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has
lost the confidence of the people and can no longer, function.
The ultimate authority vests in the people who will decide all issues
including constitutional issues
through their representatives
to be elected afresh. Elections will be held as early as possible.
Until such time as elections
are held, the administration of the country will be carried on by a reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view to giving
the country a vigorous and stable administration. The invitation
has been accepted.
The security and stability of
the country are of paramount importance. All personal, sectional and provincial interests must be subordinated
to the supreme national
interests."
The reconstituted Council, of
Ministers which was announced in an extraordinary issue of the Gazette
of Pakistan, on the 26th
October, 1954, consisted of :-
(1) Mr. Muhammad
Ali,
(2) Ch. Muhammad
Ali,
(3) Major-General Iskander
Mirza,
. (4) Mr.
A. H. Espahani, ,
(5) Dr. A. M. Malik,
(6) General Muhammad Ayyub Khan,
(7) Mr. Chyasuddin Pathan, and
(8) Mir Ghulam Ali Talpur.
Dr. Khan Sahib was included
in the Council a few days later.
On the 7th November, 1954, the
respondent put in an application, Writ Petition No. 43 of 1954, on the Extraordinary Special Jurisdiction
Side of the Chief Court of Sind. The respondents to this petition were the present appellants, namely, the Federation of Pakistan, the aforesaid members
of the Council of Ministers,
and the Estate Officer of the Government of Pakistan. After stating the facts leading to the setting
up of the Constituent Assembly
and the coming into force of the Act of 1947,
the application alleged that the 4th appellant, Major-General Iskander Mirza,
had informed the respondent on the 26th October, 1954,
that the Constituent Assembly had been dissolved ; that the respondent and members of the
Constituent .Assembly had been forcibly prevented from entering the premises
of the Constituent Assembly Building
in Karachi on the 27th October, 1954
; that on the 30th October, 1954,
the Estate Officer of the Government of Pakistan has addressed a letter to the respondent intimating to
him that as he had ceased to be the President of the Constituent Assembly the allotment in his name of Bungalow No.
3, Bath Islands, had been cancelled with effect from the 8th November, 1954,
and requesting him to vacate
the said premises
by 8th November, 1954 -,. that the appellants were contending that in
pursuance of the alleged proclamation the Constituent Assembly
had been dissolved
and were interfering with the duties
of the ,respondent as the President of the Assembly
and preventing him from exercising his functions
; that for the reasons stated
in the application the alleged proclamation and the appointment of appellants 2 to 16 as members of the Council of Ministers were unconstitutional, illegal,
ultra vires, without jurisdiction, inoperative and
void ; that in any case the inclusion of appellants 4, 5, 7, 8 and 10 in the Council
was contrary to the provisions of the Act of 1935 inasmuch as they were not the members of the Federal Legislature ;
and that there resided in the respondent a legal right to the performance of legal duties 13y the
appellants which was of a public nature. The application concluded with the prayer that a writ in the nature of mandamus
be issued against the appellants, their
agents, servants and all persons claiming and acting through or under them
restraining them from implementing or otherwise giving
effect to the proclamation of the 24th October, 1954, and. from interfering, directly or indirectly, with the exercise of
the respondent's functions and duties. as the President of the Constituent Assembly ; and ,that another writ in the nature
of quo warranto be issued
against appellants 4, 5, 7, 8 and 10 with a view to determining the validity of
their appointment as members of the Council
of Ministers. A joint reply to this application was filed by the Advocate
General of Pakistan
on behalf of appellants, raising
some preliminary objections and
opposing the application on the
merits. The reply alleged that the Sind Chief Court had no jurisdiction to issue either of the writs
; that the dissolution of the Assembly was valid ; that the writs prayed for could not, in any case
should not, issue'; and that the grounds mentioned in the proclamation for the dissolution of the
Assembly were true, and if any proof was needed the appellants were prepared to show that the constitutional
machinery had broken down, that the Constituent
Assembly had lost the confidence of the people, and that it could no longer
function in accordance with the
provision of the -Act of 1947. In the arguments before the Chief Court several questions which the application and the reply gave rise to were debated, but the main points which received the attention of that
Court and which were argued before us on behalf of the appellants were :-
(1) that
since the Government of India (Amendment) Act, 1954, by which on 16th July,
1954, section 223-A,
which empowered the High Courts
to issue writs to mandamus
and of quo warranto, was inserted in the Act of 1935, had not
received the assent of the Governor-General, it was not law, and that
therefore .the Sind Chief Court had
no jurisdiction to issue the writs ;
(2) that
the prayer for a writ of quo warranto must also fail on the ground that section
10-A of the Act of 1935, which
imposed on members of the Council of Ministers the qualification of being members of 'the Federal Legislature, and
which was inserted in that Act by the Government of India (Fifth Amendment) Act, 1954, was not law because that
Amendment Act also had not received the assent of the Governor-General ;
(3) that
the Governor-General was competent to dissolve the Constituent Assembly and in
the circumstances had rightly dissolved it ; and
(4) that the direction to issue either
of the writs should not be exercised
in favour of the respondent.
The Chief Court held' that the
Acts of the Constituent Assembly, when it did not function as the Federal Legislature, did not require the
Governor-General's assent and that the dissolution of the Assembly
was illegal. It, therefore, issued the writs prayed for.
In order to appreciate the
nature of the issues raised and the implications flowing from their determination one way or the other it is necessary to preface this judgment with some observations of a general character
before stating the precise constitutional position that the Act of 1947 brought
about and deciding
the main issue, the determination of which is in my opinion sufficient to dispose of the appeal. The words democracy,
democratic institutions, sovereignty, political sovereignty, legislative sovereignty, independent dominion etc., have been freely
used in the arguments before
us. I, therefore propose-to give a general idea of these terms but only
to the extent that it, is necessary for the purpose
of this judgment.
DEMOCRACY AND ENGLISH
POLITICAL INSTITUTIONS
The word `Democracy' is now
used at least in three different senses. It is the name given to a philosophy of life, to the means requisite
to live up to that philosophy and lastly to the principles which determine those means. In the first
sense democracy is a subjective attitude. by which the members of the community secure to every one his rights, look
upon all fellow citizens without distinction of colour or race .as brethren in a
common enterprise and give spontaneous support to
projects which enhance the-civic
excellence and promote the general welfare. It is thus a way of life; based contrary to the ancient Greek,
conception, upon -the fundamental assumption of equality of" all .individuals and of their equal rights of life, liberty of action, thought
and expression and pursuit of
happiness. It is. essentially an attitude towards life, and a definite conception of man's place in society,
and of the ends of life. As a mode of government, democracy involves a study of the basic principles on which political institutions ought to be founded as well
as of the actual mechanism to be employed
in particular conditions. The basic idea on which
such form of government rests is that of
self-rule of the people of freely elected
representative institutions
and of an executive responsible to the people. The fundamental institution in
modern democracy is the constitution,
whether this be a written or an unwritten one. The constitution performs
three functions : it expresses the consent by which
the people actually establish the state itself
: it sets up a definite form of government ; and it grants and at the same time limits the power which that Government possesses. It is
the people who give the constitution and the appointed ruling agency is held in its administration within the rigid
limits of its letter, subject
to the right of the people at any time by appropriate means to enlarge
or constrict the power it had granted.
Since democracy is that form
of government which represents the common will, political institutions under that form of government, whatever
may be the form of the constitution, must be based on principles without which democratic ends cannot be realized. In
no modern state can the people now
like the City States of ancient Greece, directly assume legislative functions,
the number of population ahd size of
the country making it impossible for them to meet in an assembly for purposes of legislation. Therefore in a
nation of any size it is necessary to find some means by which people could rule without taking part in every immediate
step of the process of authority. Thus
the principle has now been firmly established of choosing a certain number of
agents or representatives, who are
numerous enough to speak for the whole people and few enough to meet at one place. The first essential of
democratic constitution therefore is that the entire people must be represented
in the Legislature by their nominees
to be elected periodically by them. The
object being that the popular
will should be reflected in the Legislature, the only means known to
_modern democracy of achieving
this result is election of the people's representatives who on being elected constitute the popular assembly, whether it be called
by the name of Parliament, the House of Commons,
House of Representatives, the House of
People or by any other name.
The second and by far the most important requirement of a democratic constitution is the need for periodic accountability of the representatives to their electors. In modern times within
a few years political
events of great and unanticipated importance may happen in a country and the
mental horizon of the whole people
may change by a sudden international or domestic event, the importance and implications of which may not have been present
to the minds of the people when
elections were hold. It is, therefore, necessary that old
representatives should seek re-election either
because of their having ceased to reflect in the Legislature the progressive or
changing outlook of the people or
because of their having ceased to represent the views of the people on a particular issue. The principle, therefore, is fundamental that in every
democratic constitution there
must . exist a provision
for holding elections
after. a few years, so that the House may continue to be
representative of the varying aspirations and needs of the people. It is
unnecessary to discuss here the
position of a representative after he has been elected, whether he is an agent
or trustee of the people or a mere
messenger. . The basic principle is that no -representative body can continue indefinitely and that its composition must admit of change from time to time by means of an appeal
to the people. An irremovable
Legislature is the very antihesis of democracy and no democratic constitution is known in the world
where elections are for, life
or for an indefinitely long time.
It may incidentally be
mentioned here that in the Act of 194 7 there was no express provision for the dissolution of the Constituent
Assembly, and it was alleged before us by Mr. Chundrigar on behalf of the respondent that the only way
to get rid of the Assembly if it did not dissolve itself, may force or revolution, thus admitting
that extra legal acts like revolution, coup d'etat and other unconstitutional acts become legal
concepts where the people, deprived of political sovereignty which in a democracy is their birthright, seek to assert
that right against
an indissoluble Assembly.
.
This is what Sir William Blackstone said in 1765 about a perpetual Legislature
"Lastly, a Parliament may
be dissolved or expire by length of time. For if either the legislative body were perpetual ; or might last for
the life of the Prince who convened, them, as formerly ; and were so to be supplied, by occasionally filling
the vacancies with new representatives ; in these
cases, if it were once corrupted, the evil would be past all remedy ;
but when different bodies succeed
each other, if the people show cause to disapprove of the present, they may
rectify its faults in the
next." (Commentaries on the Laws of England, Book I, Chapter
2, p. 189.)"
The requirement of periodic
accountability of a representative Assembly
to the electors is so basic that in the United Kingdom the Crown,
which since long has ceased to exercise its discretion in opposition to the advice
of the Ministry, will be considered to be justified
in exercising its reserve powers of withholding assent or
.directing dissolution if Parliament ever attempted to prolong its own life indefinitely. The reason for it
is that in a democratic constitution the ultimate or political sovereignty resides in the people, while
the popular assembly, where the constitution does not impose any limitation on its powers, exercises legislatives
sovereignty only during its term. Since sovereignty
as applied to States imports the supreme, absolute, uncontrollable power by
which a State . is governed, and
democracy recognises all ultimate power as resting in the people, it is obvious
that in the case of a conflict
between the ultimate
and legal sovereign, the latter must yield. An irremovable Legislature, therefore,
is not only a negation of democracy but is the worst calamity that can befall a nation because it tends to perpetuate
an oligarchic rule which, while it has
none of the advantages, has all the disadvantages of a dictatorial rule. An
oligarchy, while it lacks the
determination, the singleness of purpose and the clarity of vision of a
dictator, is subject to all the temptations to which a dictator may be exposed.
- If, therefore, the Constituent Assembly was an
irremovable Legislature, it was a form of oligarchy and not a body of
representatives subject to periodic
accountability. The reason for it may be' that the framers of the Act of 1947 expected that constitution would be framed
within a reasonable time and that the Constituent Assembly would thus dissolve itself. They may not have imagined
that the Assembly to which they were confiding
all legislative powers would not complete the constitution even for seven years and, on the contrary, would assume the role of an irremovable and irresponsible Legislature.
As Government is the responsibility of the executive
in a constitution, it- is an indisputable corollary of the democratic principle
that the executive must be responsible to the Legislature for
its acts. The executive discharges
its duty of day to day administration without the popular Assembly enquiring into it but there may
come an occasion, and this sometimes does happen, when on some important issue, executive or legislatve, ` there
ensues a conflict between the executive
and the Assembly. In such a case, if the Assembly does not support the
executive, the Government must take
it to mean that it has ceased to be the representative of the House, and on the principle of responsible Government must
make way ,for those who have the support of the Assembly. The same is the effect of a general vote of no
confidence, which is intended to declare to
the Government that it no longer enjoys the confidence of the House. In that
case, too, the Government, if it
wishes to stay on, has one means of asserting its will against the will of the Assembly. , If it is sure that the
Assembly itself has ceased to be representative of the people and that in fact the Government has the
popular support on that issue, it may ask for a dissolution of the House however
recently the House might have been elected,
though this course will constitutionally not be adopted where
elections were held on the specific issue on which the Government insists to, take a particular stand. To meet such a
situation and to enable the popular will
to be reflected in the Assembly it is necessary that, apart from the provisions
relating to periodic dissolution;
there should exist in the constitution some power competent to dissolve the Assembly,
if, before the expiry of a normal life, it
adopts on a particular issue an
attitude which is not the attitude
of the electors. Every democratic constitution, therefore, written
or unwritten, gives
to the Head of the State the power
to dissolve the Assembly in the
contingency just mentioned.
The next basic fact in a
democracy of the British pattern, which has a constitutional monarch at the head; is that of ministerial
responsibility. This doctrine proceeds on the assumption that the sovereign himself belongs to no party,
that he does nothing on his own individual responsibility, and that every act, of his is backed by
ministerial advice. If there be no clash between the Government and the Assembly, and a measure
be brought up by Government which the sovereign feels would be resented or disliked by the people, he is
entitled to dismiss the Ministry, to form a
Ministry from amongst the members of the opposition, and then on the advice
of the new Ministry, to order dissolution. This power
undoubtedly rests in the British Monarch, though it has not been exercised since the time of William IV,
the established convention now being that by dismissing a Ministry, which represents the House of Commons whose life has
not yet expired, the Monarch must
be deemed to have taken active interest in party politics, and thus foregone
his claim to the respect and
affection which every one in the realm owes to him because of his aloof and
lofty' position. It will have been
noticed that the principles mentioned above can operate in full force only where there are organised parties in
the country and at least two parties in the Legislature, namely, the Treasury Benches and the Opposition, so that in case
the existing Government be dismissed the Opposition may be called upon to form a new Government.
Another means possessed by the British
Monarch of appealing to the electorate against the House
of Commons and the Government which enjoys the confidence of that House
is that of withholding his assent to a bill. This power was last
exercised in the time of Queen Anne and is now stated to be as dead as the dodo. But as late as the reign of King George
V. there were suggestions, when the
House of Commons twice passed the Irish Home Rule Bill, that the Sovereign
could withhold his assent from the
bill and appeal to the country. The King was himself inclined to accept this view and Sir William Harcourt had to tell
him in a personal interview that, if he dissolved the House of Commons, in the ensuing elections Sir William would not
mention the issue of Home Rule but that elections would be fought on the issue
"Is the country governed
by the King or by the people?" and that every Minister would then attack
the King personally.
Thus the necessary mechanism in
a normally functioning democratic constitution of the British principle
consists of :-
(1) a free and
independent electorate,
willing to give, when necessary, what is called an "electoral mandate";
(2) a popularly
elected Legislature ;
(3) an executive
responsible to the Legislature ;
(4) the Head of the State, with a legal right not only to dissolve the legislature but also to withhold assent to bills The question in what
circumstances these powers of the King are to be exercised is an entirely different question and has
nothing to do with the legal powers of the King, though clearly defined conventions have come to be recognised which the
King can, ignore only if he wishes to
take the responsibility of ceasing to be a constitutional monarch. But these
conventions 'cannot be enforced by
the Courts, though they will undoubtedly be taken cognizance of in the interpretation of written constitutions.
The only issue that the Court is required to determine in such cases is whether the legal power
existed or not, and not whether it was properly and rightly exercised, which is a purely political issue.
POSITION OF ME DOMINIONS
As the principal argument
which is to be found in the judgment of the learned
Judges of the. Chief Court
of Sind and which has been reiterated before-us is founded
on the conception of an
`independent dominion' and the
alleged sovereignty of the Constituent Assembly, it becomes necessary to ascertain the meaning of the
words `independent dominion' and to have a clear comprehension -of the powers that the Governor-General of a ,Dominion exercised in 1947, when the Indian Independence Act was passed.
For that purpose we shall have to go far back in history and to trace the origin
and subsequent development of the
British Empire itself.
Up to the date. of the passing.
of 'the Statute of Westminster in 1931 there was no distinction between a Colony and a Dominion. Section
18 of the Interpretation Act, 1898, had a colony - as "Any part of His Majesty's Dominions exclusive. of the
British Islands and of British' India, and where parts of such Dominions are both under a Central
and a local Legislature, all parts under the Central
Legislature shall, for the purposes, of this definition, be deemed
to be one colony."
By section 11 of the Statute
of Westminster the definition of a colony was not to include in any Act of the Parliament of the United
Kingdom passed after the commencement of the Statute, a dominion or any province or state, forming part of a
"dominion" which was defined by section 1 of the Statute as meaning the Dominion of Canada, the Common wealth
of Australia, the Dominion of New Zealand,
the Union of South
Africa, the Irish Free state and
Newfoundland.
Colonies in America
and other parts.
of the globe were obtained
in three ways :-
(1) by treaty
of cession ;
(2) by conquest ; and
(3) by taking
possession and peopling
them where they were
found uninhabited.
On the well-recognised doctrine
of. Constitutional Law that all acquisitions of sovereignty by a subject
are on' behalf of the Crown, all ceded or conquered colonies
were under the Common Law of
England held of the Crown. The relationship between such colonies and countries
which, the King did not hold in right
of his British Crown, as for instance, the German territories, was of a fundamentally different character because those territories during
the union of the two Crowns had no connection with England or its laws.
Where a colony was acquired by treaty, the King could not legally
disregard or violate
the articles on which .the country was ceded and such
articles were sacred and inviolable according to their true intent and meaning. Subject to this qualification, there
-was hardly any distinction between a colony
acquired by treaty or by conquest. Thus in the case of a territory, whether
acquired by conquest or treaty, the
King, subject to the terms of the treaty, possessed an exclusive prerogative power over it and could entirely change
or newmodel, the whole or part of its laws and political form of government and govern it by Letters Patent or orders-in
Council. But because a country acquired
by British arms became a dominion of the King in right of his Crown, it was
necessarily subject to the
Legislature of Great Britain and consequently the King's legislative powers
over it, as conqueror, were subordinate to his own authority in Parliament, so that the King could not make
any new change contrary to fundamental principles or exempt the
inhabitants from the power of Parliament.
The King could preclude himself from the exercise of his prerogative
legislative authority in the first
instance over a conquered or ceded territory by promising to vest it in an , elected Assembly of the inhabitants and
the Governor or by any other measure of a similar nature by which the King did 'not claim or - reserve to himself that
important prerogative. But the grant of representative institutions, without the reservation of a power of concurrent legislation, precluded the exercise of the prerogative only while the legislative institutions continued to exist.
If an inhabited country was
discovered and peopled by English subjects, they were supposed to possess themselves of it for the benefit
of their Sovereign and such of the English laws then in force as were applicable and
necessary to their situation were immediately enforced on the principle that wherever an Englishman goes he carries.
with him as much of English law and liberty
as . the nature of the situation will allow. In the case of such
colonies the Crown never had the prerogative
of legislation. The distinction, between ceded or conquered territories and
settled colonies was clearly brought
out by the Privy Council in Sammut v. Strickland, (1938 A C 678) where Lord
Maugham L. C. delivering the judgment of the Board said
"The line of distinction here
has always been based on the circumstance that English settlers wherever they went carried with them the
principles of English Law, and that English common law necessarily applied
in so far as such laws were applicable to the conditions of the new colony.
The Crown clearly had no
prerogative right to legislate in such a case. Where, however, the territory was acquired by cession or
conquest, more particularly where there was an existing system of law, it. has always been considered that there was an
absolute power in the Crown, so far
as was consistent with the terms of cession (if it was a case of that kind), to
alter the existing system of law,
though until such interference the laws remained as they were before the
territory was acquired by the
Crown.".
But it was a common
characteristic of all colonies, ceded, conquered or settled, ,that they were subject
to the legislative sovereignty of Parliament. .
I have already observed that
the King cannot vary from any treaty which he has entered into on the Acquisition of a country
and may preclude
himself from the exercise of his prerogative powers of legislation
in the first instance over an acquired or ceded territory by vesting it in an
elected Assembly of the inhabitants
and a Governor. It is, therefore the most important principle that though the King may keep in his own hands
the power of regulating or governing inhabitants, he cannot infringe or depart from the provisions of the Charter by
which he has, though voluntarily, granted
them any liberties or privileges. Thus in every
question which arises between the King and his
colonies respebting the prerogative, the first consideration is the Charter
granted to the inhabitants. If that be silent on the subject,
it cannot be doubted
that the King's
prerogatives in the colony
are precisely those prerogatives which he may exercise in the mother country.
Where the Colonial Charter affords no
criterion or rule of construction, the Common Law of England with respect to the rule or prerogative is the,
common law of the territory. Rut whether a, colony was ceded or conquered territory
to which representative legislative institutions were granted by Letters Patent or Order-in-Council or a settled
colony governing itself under a constitution granted to it by Parliament, the King in no instance
delivered himself or was divested of the prerogative to withhold assent to colonial legislation. And this prerogative
has always been considered to be so material
to the existence of the King's real or formal sovereignty, that there can
scarcely be imagined a case in which
such power could not be exercised. True, the King did not exercise this power himself, but only through his
agent or representative, but that the power was exercised by the Governor or the Governor-General on
the King's behalf has always remained undoubted: In every sense of the term the Governor-General has remained a
constituent part of the, local Legislature.
STATUTE OF, WESTMINSTER DOMINIONS
In exercise of its right
to legislate for the colonies settled, ceded or conquered-the British
Parliament provided a constitution for the Dominion of Canada in 1867,
for the Commonwealth of Australia in
1900, for South Africa in 1909, for New Zealand in 1852; and for Newfoundland in 1809. In the case of Ireland the
Constitution framed by Dail Eireann, sitting as a Constituent Assembly, was recognised by 'the Irish
Free State Agreement to which statutory effect was given by the Irish Free State Constitution
Act, 1922. These constitutions defined
the Legislative powers of the Legislatures in these Dominions
and worked under a Governor
or a Governor-General who represented the King and exercised on
behalf of the King the power of giving assent to or withholding assent from bills or of reserving them for the
signification of His Majesty's pleasure. The Governor-General or the Governor
had also the power to prorogue, adjourn
or dissolve the
Legislature of which he himself as representative of- the King was a necessary constituent. Though originally
these Dominions were subjected to British control through the Governor-General,
and the British Parliament had the
authority to legislate for them, the development of the system of responsible Government in them was so
steady and consistent that they began to claim for themselves complete autonomy and an equal status with Great
Britain. Accordingly, an Imperial Conference
was held in London on the 25th October, 1926, in order to investigate some of -
the questions affecting interimperial relations. This Conference was attended by the representatives of Great Britain,
Canada, Australia, New Zealand, Union of South Africa, Newfoundland, the Irish Free State and India. Among the
resolutions passed at the Conference was one which defined the mutual position and relation of Great
Britain and the Dominions. It stated "They (Dominions) are autonomous communities within the
British Empire, equal in status, is no way subordinate one to another
in any respect of their domestic or external affairs,
though united by a common
allegiance to the Crown,
and freely associated as members
of the British Commonwealth of Nations."
It was recognised at the
Conference that every self-governing member of the Empire was the master of its own destiny and that in
fact, if not always in form, it was subject to no compulsion whatever.
Regarding the position of the Governor General it was declared :-
"In our opinion
it 'is an essential consequence of the equality
of status existing
among the members
of the British Commonwealth of Nations that the Governor-General of a Dominion
is the representatives of the Crown holding in all essential respects
the same position in relation to the administration of public affairs
in the Dominion as is held by His Majesty
the King in Great Britain,
and that he is not the representative or agent of His Majesty's
Government in Great Britain or of any Department of that Government."
The attention of the Conference was also called
to various points
in connection with the operation of the Dominion Legislation which, it was-suggested, required
clarification, the particular points involved being
(a) the practice
under which Acts of the Dominion Parliaments were sent each year to London, and it
was intimated, through the Secretary of State for Dominiori Affairs, that
"His Majesty will not be advised to exercise his powers of
disallowance" with regard to them ;
(b)
the reservation of Dominion legislation, in
certain circumstances, for the signification of His Majesty's pleasure which was signified on a advice tendered by His Majesty's Government in Great
Britain ;
(c) the
difference between the legislative competence of the Parliament at Westminster
and of the Dominion Parliament in
the Acts passed by the latter operated, as a general rule, only within the territorial area of the Dominion concerned and ;
(d)
the operation of legislation passed by
the Parliament at Westminster in relation to the Dominions. In this connection special
attention was called to such statutes as the Colonial Laws Validity
Act. It was suggested that in future
uniformity of legislation as between Great Britain and the
Dominions could best be
secured , by the enactment of reciprocal statutes based upon consultation and agreement.
The Conference gave .to these
matters the best consideration possible but came to the conclusion that the issues involved were so complex
that there would be grave danger in attempting any immediate pronouncement other than a statement of certain
principles which underlay the whole question of the operation
of the Dominion Legislation. It felt that for the rest it would be necessary to obtain expert guidance as preliminary
to- further consideration by the Governments in Great Britain and the Dominions. With regard to the disallowance and reservation of Dominion Legislation the Conference placed on record
that, apart from the provisions embodied in the Constitutions or in specific statutes
expressly providing for reservation, it is recognised that-it was the right of the Government of each
Dominion to advise the Crown in all matters relating to its own affairs. Secondly, that it would not
be in accordance with constitutional practice that any advice should be tendered to His Majesty by His Majesty's
Government in Great Britain in any matter
appertaining to the affairs of the Dominion against the view of the Government
of that Dominion:
On the question raised with
regard to the legislative competence of members of the British Common wealth of Nations other than Great
Britain and in particular to the disability of those members to legislate
with extra-territorial operation; the Conference thought
that it should similarly
be placed on record that the constitutional practice was that . legislation by the Parliament at Westminster applying to a Dominion would only be passed
with the consent of the Dominion concerned.
The Conference recommended that steps should be taken by Great Britain and the Dominions to set up a committee to enquire
into, report upon, and make recommendations con- cerning :-
(1) the
statutory provisions requiring reservation of Dominion Legislation for the
assent of His Majesty or authorising the disallowance of such legislation ;
(2) (a) the
position as to the competence of Dominion Parliaments to give their legislation extra-territorial operation ;
(b) the practicability and most
convenient method of giving effect. to the principle that each Dominion Parliament should have power to
give extra-territorial operation to its legislation in all cases where such operation is ancillary to
provision for the peace, order and good government of the Dominion ;
(3) the principles embodied in or .underlying the Colonial Laws Validity Act, 1869, and the extent
to which any provisions of that Act ought to be repealed, amended, or
modified in the light of the relations
between the various members of the British Commonwealth of Nations, At the
Imperial Conference of 1930 the
report of the Conference of 1929 on the operation of the Dominion Legislation was considered and it was
recommended that a statute be passed by the Parliament at Westminster embodying certain
specific provisions. Accordingly in 1931
there was passed by the Parliament of
the. United Kingdom a statute called the Statute of Westminster which gave
effect to the resolutions of the
Imperial Conference of 1930. This statute referred
to the declarations and resolutions set forth in the report
of the Imperial Conferences held in 1926 and 1930, and attended
by the delegates of the .Government in the United Kingdom, the Dominion , of Canada,
the,
Commonwealth of Australia, the
Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, and
considered it to be meet and proper to set out by way of Preamble that the. Crown is the symbol of the free association
of the members of the British Commonwealth
of Nations, and that as they were united by a common allegiance to the Crown it would
be in accordance with established constitutional position of all the members of the Commonwealth in relation to one another
that any alteration in the law touching the succession to the throne
or the Royal Style and Titles shall hereafter require
the assent as well of the Parliaments of all the Dominions as of the Parliament of the United
Kingdom, and .enacted the resolutions of the
Imperial Conferences in 12 sections. Section ,2 of that Act declared that the
Colonial Laws. Validity Act, 1865„ was, not to apply to any law made after the commencement' of the Act by the. Parliament of a Dominion,
that no law and no provision of any law made after the commencement of the Act by the Parliament of a Dominion
shall be void or inoperative on the . ground that it was repugnant to the law of England
or to provisions of any existing or future Act of the Parliament of the
United Kingdom or to any order, rule or regulation made under any such Act and
that the powers of the Parliament of a Dominion
shall include. the power to repeal or amend any such Act,
_
order, rule or regulation in so far as the same was a part of the law of the Dominion.
The Colonial Laws Validity Act which was declared by
the Act not to be applicable to any law made by the Parliament of a Dominion had declared in section 2 .that any
Colonial Law which was or shall be in
any respect repugnant to the provisions of any Act of Parliament extending to
the Colonies to which such law may
relate or repugnant to any order or regulation made under the authority of such Act of Parliament, or having in the
Colony the force or effect of such Act, shall be read subject to such Act, order or regulation, and shall to the
extent of such repugnancy, but not otherwise,
be. and remain absolutely, void and ineffective. Section 3 of the Statute gave
to the Parliament of a Dominion full
powers to make laws having extra-territorial operation. Section 4 declared that no Act of Parliament of the
United Kingdom passed after the commencement of the Act shall extend,
or be deemed td extend,
to a Dominion as part of the law of that Dominion
unless it was expressly
declared in that Act that that Dominion had requested, and consented to, the enactment thereof. Section 5 dealt with
the powers of the Dominion Parliaments in relation to merchant shipping and 'section 6 with their powers in relation
to Courts of Admiralty. Sections 7 and
8 enacted that nothing in the Act was to be deemed to apply to the repeal,
amendment or alteration of the
Constitutions of the Dominion- of Canada, the Commonwealth of Australia and New Zealand or the distribution of
legislative powers between the Parliament of Canada and the Legislatures of the Provinces of
. that Dominion.
Some important
constitutional practices which had been firmly established between the Dominions and the United Kingdom before the passing of the Statute of
Westminster have to be fully understood with a view to appreciating the constitutional position
existing at the time of the passing
of that Statute. The first of these relates to the position of the
Governor-General. Originally under the Constitution Acts of the Dominion the Governor-General had substantial powers of interference in the administration of the
Dominion. He was not a representative of the Dominion but a person appointed by the British
Government who was responsible to that Government. Under the Constitution he exercised his powers of control by withholding his assent from and reservation of bills or by dissolving the Legislature, powers
which were expressly
vested in him. These powers
could be exercised
by him even in opposition to the advice of the Ministry, But by 1926, when the Imperial
Conference met in London, his position had become that of a constitutional
Governor General; he had ceased to be an agent of the British Government and become a representative of
the King, exercising in relation
to the affairs of the Dominion the same powers as were exercised by the King in the United Kingdom.
In other words, the principle of ministerial' responsibility hack been firmly
established in the Dominions. This constitutional position was affirmed by the
ruling of 3rd December, 1915, in
the New South Wales constitutional crisis of 1926 when in reply to a request for instructions regarding some
appointments to the Legislative Council, Mr. Amery, the Secretary of State, informed the Governor that , established
constitutional principles require that the
question should be settled between the Governor and the Ministry. Consequently
I do not feel able to give you (i.
e. the Governor) any instruction". He re-affirmed this attitude in the
House of Commons on March 15th, 1926, and said
"Since there seems to be some misconception as to the position of the Secretary
of State in relation to matters of this kind, I should like
to take this opportunity of making it clear that; in my view, it would not be proper for the Secretary of
State to issue instructions to the Governor with regard to the exercise
of his constitutional duties."
Stating his final conclusion on
the issue, which was conveyed by his letter, dated the 14th July, 1926, to the Attorney-General, he said
that if Ministers at home purported to intervene in the internal affairs of New South Wales, that would be wholly
incompatible with the status of New South
Wales within the Empire, and that the matter in dispute as to the Legislative
Council appointments was essentially
one to be settled in New South Wales, and not in London. (pp. 127 and 128
of Evatt's `The King And His Dominion Governors', 1936 Edition).
After the post-Statute-of-Westminster controversy between Sir Philip
Game and the Lang Ministry
of New South Wales in 1932, Sir Alexender. Hore-Ruthven, Sir Philip Game's successor, announced
on his arrival that "The Governor can advise
his advisers. He can suggest.
He can warn. But as long as Ministers are chosen representatives of the people,
he must defer to their
advise and assist them to the best of his ability
in their deliberations, no matter what may be his private view or personal conviction." (Evatt, The `King And His Dominion Governors', p. 152). These are only two
of the several incidents in the history of Dominion Government which confirm
the principle that the, position of
'a GovernorGeneral or a Governor qua ' a Dominion Government is precisely the same
as that of the British Monarch qua the Government in London.
A much more important
constitutional incident of the office of the Governor-General is that his appointment and dismissal actually rest
with the Dominion Government and not with the home Government, and that if he ever comes in conflict with the
Government of the Dominion, that Government
can successfully insist on his recall by the King. Speaking generally, he has
ceased to possess
the right of exercising the reserve powers
of the King against the wishes of the Dominion
Government. Stating the position as it exists after the Imperial
Conferences of 1926 and 19'30, Evatt at pp. 192 and 193 of his book "The King And His Dominion Governors" says "Other aspects
of these decisive declarations are of supreme importance, but, for
present purposes, it has to be noted that the decisions of the two Conferences assert the general
principle that the King proceeds
upon the advice of responsible Ministers. Moreover, the general doctrine
of Ministerial responsibility in its application to the affairs
of a Dominion does not except from its operation, but definitely includes, the appointment of the King's
representative therein. Such matter thus becomes a Dominion affair, and a very important and vital one The declarations of 1926
and 1930, despite
their great significance in the other respects, do not contain
any final solution
of the various
problems of the reserve. power,
although it is recognised that the general principle of Ministerial responsibility (illustrated by the
Harcourt decision in the Tasmanian case of 1914) governs the actions
of the King and Governor-General alike ; and also that
in the appointment of the latter
the relevant Ministers are those of the Dominion concerned".
And Jenks states at p. 21 of the Cambridge
Law Journal (1927) Vol. 3, "Who then is to advise
the King upon the appointment of the Governor
General, say, of Canada, Australia, or New Zealand
? The answer (I may be wrong)
seems as a matter of principle to me to be reasonably plain, namely, that, just as the King in matters
affecting the United Kingdom takes the advice of his Prime Minister,
in London, , so in matters affecting
Canada he will take the advice of his Prime
Minister in the Dominion,
and in the case of Australia that of his Prime Minister in the Commonwealth of Australia, and so forth. And I see .no
difficulty in applying the principle in that way". Resuming the discussion at p. 196 of his book Evatt
again says : "For paragraph VI of the Report of the 1930
Conference certainly secures to the Dominion Ministers direct access to
the King himself for the purpose of the King's.
acting on their advice in relation to the appointment of the Governor-General, His Majesty's Government in Great Britain
being neither interested nor concerned in such
appointments. And the new method of appointing the Governor-General, exclusively upon the advice of Dominion
Ministers, has been adopted in appointments since 1930".
The Strickland-Holman controversy of 1916 which resulted in the recall
of Sir-Gerald. Strickland,
: the Governor of New South
Wales, in something like disgrace is a very apt illustration of the power of the Dominion Government to insist
on the recall of a Governor who does 'not act
according to the advice of the Ministry. The implications of the
Imperial Conference Resolutions and Declarations are thus stated by Evatt :-
"Now Jenks logical inference
from the 1926 Report, that the appointment of a Governor-General is . exclusively a matter of Dominion
concern, seems to justify the further inference-equally logical-that the termination of the appointment of a Governor-General is also a matter exclusively of local or Dominion concern.
So far as the position
of strict law is concerned, it is well-established that, in the absence of a controlling statute, a person _ holding such a position
as that of Governor or Governor-General holds it at the pleasure
of the Crown. It would seem, therefore, that Dominion Ministers must possess sufficient
constitutional authority to approach His Majesty directly, i.e., without any intervention by Ministers in
Britain, for the purpose of advising the King that the appointment of the Governor-General should be terminated. This
course was apparently the procedure
adopted when the De Valera Government of the Irish
Free State secured
the termination of Mr. McNeill's appointment as
Governor-General in the year 1932".' (The King And His Dominion
Governors.
Under the Constitutions of the Dominions
the Governor General
had the power of withholding his assent from bills or reserving them . for the signification of His Majesty's pleasure. But before
the Imperial Conference of
1926 he had ceased to exercise these powers in opposition to the wishes of the Dominion Government, unless under
some Act of the British Parliament he was bound to reserve a particular bill for the signification of His Majesty's pleasure. This was is consonance with the principle of ministerial responsibility, according to which his discretionary powers in all
matters were to be exercised in accordance with the advice
of the Dominion Ministry. His position had, therefore, become
precisely that of a constitutional monarch
in the United Kingdom, and this was
recognized by the representatives of the United Kingdom who took part in the
deliberations of the Imperial
Conferences in 1926 and 1930. The resolutions of those Conferences relating to the position of the Dominions and the
powers of the . Governor-General were therefore a factual statement of the constitutional position.
In fact, the position was so clearly understood by all concerned that the Statute of Westminster said nothing about it and took for granted the well-recognized convention that the Governor-General was not in a position
effectively to interfere with the administration of a Dominion contrary to the wishes of
that Dominion. Thus, at the time the
Statute of Westminster was passed there were only a few legal restrictions on
the legislative sovereignty of the Dominion Parliaments. They could not
pass laws having extra-territorial operations
; any Dominion laws which were repugnant to the law of England were invalid ;
and the United Kingdom Parliament
could still legislate for, those Dominions. All these restrictions were removed
by -the Statute of Westminster.
PRE-INDEPENDENCE INDIA
Nowhere else is the common law principle that the acquisition of political power in a_ foreign land accrues
for the benefit , of the Crown better illustrated than by the history of the
Government of India. By the Charter
of 1600 A. D. granted
to it by Queen Elizabeth, the East India Company was authorised to make reasonable laws, constitutions, orders
and ordinances, not repugnant to English Law, for the good government of the
Company and the management of its affairs. But when consequent on the grant of the `Diwani' to the Company by the
helpless Moghal Emperor, Shah Alam,
on 12th August 1765, presistent scandals relating to -the conduct of the
officers of the Company began to
reach England, the British Parliameit stepped in and claiming the right to interfere
with the exercise
of political powers by the Company passed
the Regulating Act of 1773. The
subsequent Acts,, namely, the Amending Act of 1781, Pitt's India Act of 1784,
the Act of 1793, the Charter Acts of 1830 and 1833 and
the Act of 1854, were all based on the claim that the Company held the Indian
territories in trust for the Crown. By the Charter
Act of 1858, the British
Crown formally assumed responsibility for the- Government of India and
Lord Canning came to India as the
first Viceroy and Governor-General Eighteen. years later . Queen Victoria
assumed the title of "Empress of
India" by the Royal Titles Act of 1876. This addition to the Royal Titles was indicative of the sovereignty of the
Crown in India. The controversy between the Viceroy, Lord Northbrook, and the Secretary
of State, Lord Salisbury, during
Disraeli's Ministry resulted
in an emphatic pronouncement
by the latter that it was "not open to question that Her Majesty's Government are as much responsible to the
Parliament for the Government of India as, they are for any of the, Crown Colonies of the Empire", and section
33 of the Government of India Act, 1915,
imposed upon the Governor-General in Council a constitutional obligation of
paying true obedience to all such
orders as he received from. the Secretary of State, thus 'securing the supervision of British Parliament over Indian affairs.
The element of responsible
government in the Government of India was first introduced by the Act of 1919, which was passed on the
recommendations contained in the Montague Chelmsford Report. This Act introduced in the sphere
of Provincial Government the system of diarchy , which was based on the principle
that Ministers, without
being answerable for the Reserved
Departments
or for the policy
on the reserved side, were jointly responsible to the popularly elected Legislature in respect
of the Transferred Departments. The system was extended by the Act, -of 1935,
so as to cover, with some important exceptions, the whole field of Government. But though the element of responsibility
had been considerably enlarged, the basic constitutional position still was
that the ultimate responsibility . for the administration of Indian affairs still vested in the United
Kingdom Government. As the
Indian Independence Act 1947, brought about a complete change in the government and transferred all responsibility for the government of the Indo-Pakistan sub-continent to the two new Dominions, it is necessary, to have
a thorough grasp of the main principle which underlay the Act of 1935 in order to be able to appreciate the fundamental change
that wag effected by the Act
of 1947.
GOVERNMENT ,
OF INDIA ACT, 1935
Section 2 of the Act of 1935 asserted
that all rights,
authority and jurisdiction heretofore belonging to His Majesty the King, Emperor of India, which appertained and were incidental to the government of the territories in India for the time being vested
in him, and all rights,
authority and jurisdiction exerciseable - by him in or in relation to any other territories in India, were exercisable by His Majesty, except , in so far as it
was otherwise' provided by or under the Act, or as it was otherwise directed by His Majesty,
provided that any powers connected with the exercise of the functions
of the, Crown
in its relation with the
Indian States was, if not exercised by His Majesty,
to be exercised only by, or, by persons acting under the authority. of, His' Majesty's
representative for -the
exercise of those functions of the Crown. The said rights, authority and
jurisdiction were to include any
rights, authority or jurisdiction heretofore exercisable in, or in relation to,
any territories in India by the Secretary
of State, the Secretary of State-in Council,
the Governor-General, the
Governor-General-in Council, any Governor or any local Government, whether by any delegation from His Majesty
or otherwise. Sections 5 and 6 of the Act contained provisions for the establishment of a Federation and .the
accession of the Indian States to that Federation.
Section 8 defined the extent of the executive authority of the Federation and
section 9 provided for the
administration of the Federal affairs. The Council of Ministers to be set up
under subsection (1) of section 9
was to aid and advise the Governor-General in the exercise of his functions, except in so far as he was required by the Act to exercise
those functions or any of them in his discretion and the proviso to the
subsection stated that nothing in that subsection was to be construed as preventing the
Governor=General from exercising his individual judgment in any case whereby or under the Act he was
required so to do. Subsection (3) of that section declared that if any question arose whether any
matter was or was not a matter as respects which the Governor-General was under the Act required to act in his
discretion or to exercise his individual judgment,
the decision of the Governor General in his discretion would - be final and
that the validity of anything
done - by the Governor-General was not to be called
in question on the ground
that he ought or ought not to have acted in his discretion or exercised
his individual judgment. Under
section 10 the Ministers were to be chosen or dismissed, by the
Governor-General in his discretion.
Section 11 enumerated some of the functions of the Governor-General which were.
to be exercised by him in his
discretion, while section 12 defined his special responsibilities in the discharge of which he was to exercise his
individual judgment. Under section 13 the Secretary of State was, with the approval of the Parliament, to issue an
instrument of instructions to the Governor-General but the validity
of anything done by the Governor-General was not to be called
in question on the ground
that it was done otherwise than in accordance with that instrument.
Where the Governor-General acted
in his discretion or in exercise of his individual judgment, he was placed by section 14 udder the general
control of the Secretary of State. Chapter III made provision for a Federal Legislature. The Governor-General had the
power to summon, prorogue and dissolve the House of Assembly, one of the three constituents of the Federal
Legislature. When a bill was passed by the chambers (the
Council of State and the House of Assembly) it had to be presented to the Governor General
who . was in his discretion to declare either
that he assented
in His Majesty's name to the
bill or that he withheld assent there from or that he reserved the bill for the signification of His Majesty's
pleasure, and a bill was not to become an Act unless and until within 12 months from the date on which it
was presented to the Governor General, he made
known by public notification that His Majesty had assented thereto. An
Act assented to by the Governor-General
could be disallowed by His Majesty within 12 months from the date of the Governor-General's assent.
Under sections 42 and 43 the
.Governor-General had the power to promulgate ordinances during the recess of the Legislature, and with respect to certain subjects at any time.
In any such" case he acted
either in his discretion or in exercise
of his individual judgment. He could
also enact Acts in relation
to matters in which he was
required to act in his discretion or in exercise
of his individual judgment.
By section 45 he had the power to assume to himself all or any of the powers
vested in or exercisable by. any
Federal body or authority if he was satisfied that a situation had arisen in which the government of the Federation could' not be carried on in accordance with the provisions of the Act, and in this matter he was to act in his discretion.
The position in the Provinces
was similar to that at the Centre. The Governor was appointed, like the Governor-General, by His Majesty by
a Commission under the Royal Sign Manual. He was also to have a Council of Ministers and in certain specified
matters was required to act in his discretion
or in exercise of his individual judgment, and when so. acting he was subject
to the general control of the
Governor-General. He had the power to summon, prorogue or dissolve the Assembly. He could withhold assent to
bills of the Provincial Legislature or, reserve them for the consideration of the Governor-General,
who could either assent to the bill or withhold his assent therefrom
or reserve it for the signification of His Majesty's
pleasure thereon. Apart from this, His Majesty
had the power to disallow
Acts passed by the. Provincial Legislature. The Governor
could either in his discretion or in exercise of his individual judgment promulgate ordinances during the recess
of the Legislature, and with respect to certain subjects
at any time. He could also enact Acts concerning matters, which were within his discretion or his individual judgment. If at any time he was satisfied that a situation had arisen
in which the government of the Province could not be carried on in accordance with the provisions of the Act, he
could by proclamation assume to himself all or any of the powers vested
in or exercisable by any Provincial body or authority.
As the scheme underlying the Government of India Act was that of a federal pattern
of government the Act had defined in List . I matters
with respect to which the Federal Legislature could make laws, in List II matters with respect to which the Provincial
Legislature could, make laws and in List
III matters in "which the Federation and the Provinces, subject to certain
restrictions, were both competent to
make Laws. Residual powers were to be assigned by the Governor-General to the Federal Legislature or to the
Provincial Legislature by, public 'notification. In the cases specified
in section 99, the Federal
Legislature could make laws having extra-territorial operation.
Under section 108, unless the
Governor-General in his discretion thought fit to give his previous sanction, no bill or amendment could be
introduced into or -moved in either Chamber of the Federal Legislature which inter alia : (a) repealed, amended or
was repugnant to any provision of any
Act of Parliament extending to British India ; (b) repealed, amended or was
repugnant to any Governor General's
or Governor's Act or any ordinance promulgated in his discretion by the Governor-General or a Governor ; and (c)
affected matters as respects which the Governor- F General was required by the Act to act in his discretion. ,
°There were similar restrictions on the chambers of the
Provincial Legislature.
Section 110 enacted that
nothing in the Act was to be taken to affect the power of Parliament to legislate for any part of British India ;
or to empower the Federal Legislature or any Provincial Legislature to make any law affecting the Sovereign or the Royal
family or the sovereignty, dominion
or - suzerainty of the Crown in any part of India or the law of British
nationality ; or to make any law amending
any provision of the Act.
Under section. 91 His Majesty
could at any time by Order-in-.Council direct that a specified area
.shall be an excluded area or,
partially excluded area and on such direction no Act of the Federal Legislature or the Provincial, Legislature
was td apply to it unless the Governor by public notification so
directed in his discretion.
To summarize, the position
under the Act of 1935 was that though in matters in which the Governor-General .was not empowered to act
in his discretion or in exercise of his individual judgment,. the Ministers could take action, which as a matter
of. convention was not to be questioned
by the Governor-General, there still remained a large sphere of action in which
either the Governor-General did not consult the Ministers or he was not bound by their
advice. In matters
lying within that sphere he was responsible solely to the British, Government through the Secretary of State. Though he was appointed by the King, he was a
nominee of the British Government and subject to the control
of the Secretary of State who was one of the members
of the British Cabinet, which
was ultimately responsible to Parliament for the Government of India. The Indian Legislature was not a sovereign
Legislature and limitations on its powers were not only imposed by the Act but the Governor-General could
withhold assent to its legislation. It was wholly . incompetent to legislate on certain matters,
and ` the United Kingdom
Parliament had not only full authority
specifically to legislate for British India but the laws made by that
Parliament could extend to British India.
It was in fact in exercise' of
this legislative sovereignty that the Indian Independence Act was passed.
These restrictions on legislation and the .external control on government had, therefore, to be removed if India was to become independent.
Now for a country
to be independent it is
necessary-
(1) that it should have a Legislature with' authority to legislate on all matters
without any restriction, including matters
relating to the making
of a constitution ;
(2) no law made by it should be invalid
by reason of its being repugnant to the law of any other country
;
(3) no
other country should have any authority to legislate for it and no law made by
any other country should extend
to it ;
(4) its
government should be responsible only to its own people or to itself and not to
any outside authority ;
(5) if
independence is to be granted by the law of `a dominant country, that law must
provide 'for the freed country a
provisional constitution including ' a sovereign Legislature and a government so that the withdrawal of control may not
be followed by chaos and confusion, and if the
constitution with which the freed country starts its independence is .a
Federal Constitution, the Legislature
of the country must accept limitations on its powers if it has also to function
as the Federal Legislature..
Limitations on the sovereignty of a Legislature can be imposed
by itself as well as by yin external authority if it is the creation of such authority. Thus the
dominant country, which grants the constitution
of an independent country to a dominated country, can by that constitution
impose limitations on the powers of
the Legislature of the independent country, provided it also leaves powers to that Legislature to remove those
limitations. Limitations on the powers
of a Legislature may also
be imposed by itself, as for instance, where it has defined fundamental rights
or has converted itself
into a Federal Legislature with defined powers.
Even in the case of a country
with a unitary constitution,
its Legislature may impose future limitations on its power if it precludes itself
from legislating on defined subjects or from making certain laws.
INDIAN INDEPENDENCE ACT
It is in the light of these
principles that the Indian Independence Act has to be examined when it came into force on the midnight of the
14th August ' 1947. The principles mentioned above underline the whole scheme of that Act whose true scope and
significance can be understood and appreciated-
only if those principles are borne in mind. The scheme of that Act for our
present purposes will be apparent from the following sections
of the Act :-
The Governor-General of the
New Dominions-
5. For each of the, new Dominions, there shall be a Governor-General who shall be appointed by His Majesty
and shall represent
His Majesty for the
purposes of the government of the Dominion
:-
Legislation for the new Dominions-
6. (1) The Legislature of each of the new Dominions shall have full power to make laws. for that Dominion, including laws having extra-territorial operation.
(2) No law
and -no provision of any law made by the Legislature of either of the new
Dominions shall be void or
inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom or to any
order, rule or regulation made
under any such Act, and the powers of the Legislature of each Dominion
include the power to repeal
or amend any such Act, order, rule or regulation in so far as it is
part of the law of the Dominion.
(3) The
Governor-General of each of the new Dominions shall. have full power to assent
to any law of the Legislature of that
Dominion and so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of
laws for the signification of His Majesty's pleasure thereon of the suspension of the operation of laws until the signification of His Majesty's pleasure thereon shall not
apply to laws of the Legislature of either of the new Dominions.
(4) No Act of Parliament of the United
Kingdom passed on or after the appointed
day shall extend,
or be deemed to extend, to either of the new Dominions as part of the.
law off' that Dominion unless it is extended thereto by a law' of the
Legislature of the Dominion.
(5) No
Order-in-Council made on or after the appointed day under any Act passed before
the appointed day, and no order, rule or other instrument made on or after the appointed day under any such Act by any United Kingdom
Minister or other authority, shall extend, or be deemed
to extend, to either of the new
Dominions as part of the law of that Dominion.
(6) The
power referred to in subsection (1) of this section extends to the making of
laws limiting for the future the powers of the
Legislature of the Dominion.
Consequences of the setting up of the new Dominions-
7. (1) As from the appointed day-
(a) His
Majesty's Government in the United Kingdom have no responsibility as respects
the government of any of the territories which, immediately before that day, were
included in British India ;
(b) the
suzerainty of His Majesty over the Indian States lapses, and with it, all
treaties and agreements in force at
the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable,
by His Majesty at that date with respect to, Indian States, all obligations of His Majesty
existing at that date towards
Indian States or the rulers
thereof, and, all powers, rights,
authority or jurisdiction exercisable by His Majesty
at that date in or in relation
to Indian States by treaty,, grant, usage, sufferance or
otherwise; and
(c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having
authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons
or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at
that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise
Provided that, notwithstanding
anything in paragraph 1(b) or paragraph (c) of this subsection, effect shall, as nearly as may be,
continue to be given to the provisions of any such agreement as is therein referred' to which relate to customs, -transit, and communications, posts and telegraphs,
or other like matters,
until the provisions in question are denounced by the ruler of the Indian State
or person having authority in the tribal areas on the one hand, or by
the Dominion or Province or other part thereof concerned on the other hand, or
are superseded by subsequent agreements.
(2) The assent of the Parliament of the United
Kingdom is hereby
. given to the omission from the ' Royal Style and Titles of the words
`Indiae Imperator' and the words `Emperor of India, and to the issue by His Majesty for that purpose
of His Royal Proclamation under the Great Seal of the Realm.
Temporary Provision
as to government of each . of the new Dominions-
8. (1) In
the case of each of the new Dominions, the powers of the Legislature of the
Dominion shall; for the purpose of
making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and reference in this Act to the Legislature of the Dominion shall be construed accordingly.
(2) Except
in so -far as other provision is made by or in accordance with a law made by
the Constituent Assembly of the
Dominion under subsection (1) of this section, each of the new Dominions and all Provinces and other ,
parts Thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935 ; and the
provisions of that Act, and of the Orders-in-Council,
rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this
Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the
Governor-General, under the next succeeding section, have effect
accordingly Provided that-
(a) the said provisions shall apply separately in relation to each of the new Dominions and nothing in this subsection shall be construed as
continuing on for after the appointed day any Central Government or Legislature common to both the
new Dominions
(b)
nothing in this subsection shall be construed
as continuing in force on or after the appointed day any form of control by His Majesty's Government in the
United Kingdom over the affairs of the new -Dominions
or of . any Province or other
part thereof ;
(c) 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 respects any matter shall cease to have effect as from the
appointed day ;
(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of India Act, 1935, for the signification of His Majesty's
pleasure, and no Provincial Act shall be disallowed by His
Majesty thereunder ; and
(e) the powers of the Federal
Legislature or Indian
Legislature under that Act, as in force in relation
to each Dominion, shall, in the first instance, be exercisable by the
Constituent Assembly of the Dominion
in addition to the powers exercisable by that Assembly under subsection (1) of
this section.
(3) Any
provision of the Government of India Act, 1935, which, as applied to either of
the new Dominions by sub section (2)
of this section 'and the orders therein referred 'to, operates to limit the power of the Legislature of the, Dominion
shall, unless and until other provision is made by or in accordance with a law made by the
Constituent Assembly of the Dominion in accordance with the provisions of sub section (1) of this section, have the
like effect as a law of the Legislature of the Dominion limiting for the future the powers of that Legislature. ' „
Orders for bringing
this Act into force-
9.
(1) The Governor-General shall by order make such provision as appears to him to be necessary or expedient-
(c) for making omissions from, additions to, and adaptations 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.
Interpretation, etc.-
19. (3) References in this Act
to the Constituent Assembly of a Dominion shall be construed as references-
(b) in relation to Pakistan, to
the Assembly set up or about to be set up at the date of the passing of this Act under the authority of the Governor-General as the Constituent Assembly for Pakistan.
Provided that nothing in this
subsection shall be construed as affecting the extent to which representatives of the Indian States
take part in either of the said Assemblies, or as preventing-the filling of casual
vacancies in the said Assemblies, or as preventing the participation in either of the said Assemblies in accordance with such arrangements as may be made in that behalf, of representatives
of the tribal areas on the borders of the Dominion for which that Assembly
sits, and the powers of the said
Assemblies shall extend, and be deemed always to have extended, to the making of provision for the matters
specified in this proviso.
Thus by section 1 Pakistan
became an Independent Dominion. Because it became a Dominion, it had to be connected by a legal link' with the United
Kingdom and the other Dominions. Section 5, therefore, provided that there shall be for the Dominion a
Governor-General, who shall be appointed by His Majesty
and who shall represent His Majesty for the purposes
of the government of the Dominion.
And because the status of
Pakistan was that of an Independent Dominion, its Legislature' should possess
.full power to make laws for that Dominion, including
laws having extraterritorial operation, laws limiting for the future the powers of the
Legislature of the Dominion, and laws making
provision for its constitution. None of its laws should, be void on the ground
that it is repugnant to the past or
future laws of another country ; and it should have full power to alter any provision of the -provisional
constitution with which it started. There must also exist in that Dominion an authority competent to give
assent to its laws and no law of the dominant . country relating to disallowance, suspension or reservation of laws should
be applicable to, it. Nor should any law of the dominant country passed after the attainment of independence be applicable to it.
These propositions were all
recognised by section 6 of the Indian Independence Act which followed
closely the scheme of the Statute of Westminster; subsection (1) of the former corresponding to section 3 of the latter, subsection (2) to subsection
(2) of section 2, subsection
(3) to sections 5 and 6,
subsection (4) to section 4 and subsection (6) to sections 7 and 8. Thus section 6 ' of the Act of 1947
practically, adopted every important provision of the Statute of Westminster. This section is the most
important section in the Act because it gives
to the Legislature of the Dominion
full power to make any law that it likes, including laws making provision for the constitution, because
laws- having extra-territorial operation which this section mentions
as being .within
the competence of the Legislature of the Dominion
are often constitutional laws while laws repugnant
to or repealing or amending the Government of India Act, 1935, or the Indian
Independence Act itself,
which are -mentioned in subsection (2) and laws limiting for the future
the powers of the Legislature of the Dominion
are necessarily constitutional laws. The words of the first subsection `the Legislature of
each of the new Dominions shall have full
power to make laws for that Dominion are thus wide enough to include .laws of
every description. The exact meaning
of the words `Legislature of the Dominion' that occur in this section in several places has been the
subject matter of some discussion before us, counsel for the respondent contending that these words
are used in the Act- in several different senses. Any such possibility would, in "
my opinion, entirely
take away the artistic ,value
and destroy the underlying scheme
of the Act, leaving it a jumble of confused
ideas and full of inconsistencies and contradictions.
Thus Mr. Chundrigar's contention that the words "Legislature of that
Dominion" and "Legislature of either pf the new, Dominions" that occur in subsection (3) refer only to Federal
Legislature and not to the Legislature of the Dominion which is
mentioned in subsection (1) is entirely
devoid of substance because, as I have pointed- out, the laws which .the
Legislature. of the Dominion may make
include in three places expressly and in the whole , of the section by necessary implication what are essentially
constitutional laws. There can be no difficulty in understanding this section if it be borne in mind that the words
`Legislature of the Dominion' are used in this section
to indicate the future Legislature which was to make all laws. for the
,Dominion. When the Act. was passed,
the Legislature of the Dominion
was an abstract conception which was to be applicable to the future
sovereign Legislature of the Dominion, including the Legislature that came into existence on the 15th August, 1947,
without any limitations on its power.
' The section is a power-giving section and must be read as such to be
intelligible in all its implications. The power to make all laws. was given
to the Legislature of the Dominion
while the power to give assent to those laws was
given to the Governor General, who thus became a constituent part of the Legislature and was to occupy the same
position as the Sovereign in the United Kingdom in respect of the prerogative of giving or withholding assent.
The next important provision in
the Act is section 8 which make's temporary provision as to the government of each of the new Dominions. The first subsection of that section
provides that in the case of each of the new Dominions the
powers of the Legislature of the Dominions shall, for the purpose of making provision as to the
constitution of the Dominion, be exercisable, in the first instance, by the Constituent Assembly of
that Dominion and that references in the Act to the Legislature of the Dominion shall be construed accordingly. The
important point to remember about
this subsection is that it refers to the powers of the Legislature of the
Dominion which had been defined in
section 6 and which included the power to make constitutional laws. The sub- section, however, provides that so far as
the powers for the purpose of making provision as to the Constitution of the Dominion are concerned, they shall be exercisable in the first
. instance by the
Constituent Assembly which for the
purposes of the Act shall be construed to be the first Legislature of the Dominion.
The subsection is a machinery provision as the words in the marginal
note to the section "temporary provision as to government of each
of the new Dominions" show and
not a power-giving .provision except in so far as it states that immediately on
coming into force of the Act the
Constituent Assembly shall, in the first instance, exercise the ~ powers of the Legislature of the Dominion.
Another important point not to be overlooked in construing subsection (1) of section 8 is that the
Constituent ,Assembly can make a provision as to the constitution of the Dominion only by "law". This is
clear from the second subsection which says that
the Dominion shall be governed in accordance with the ,,Government of India
Act, 1935 "except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of ,the Dominion under subsection (1) of this
section."
The second subsection to section 8 also provides
a provisional constitution for' the new Dominions and that constitution is the Government of India Act, 1935,
as adapted in exercise of the authority given to the Governor-General by section 9 of the Indian
Independence Act. The subsection has five provisos,
of which proviso
(c) declares that Any provision of Government of India Act which requires the Governor-General or any
Governor to act in his discretion or exercise his individual judgment
shall cease to have effect ; and proviso (d) states that no Provincial Bill shall be reserved under the Government of India Act, 1935,
for the signification of His Majesty's pleasure nor any Provincial Act disallowed by His Majesty there under. Both these provisos were necessary deductions from the main provision
enacted in section
7, that from the appointed day His Majesty's
Government in the United
Kingdom shall have no responsibility as respects the government of any of the territories which immediately
before that day were included in British India and from proviso (b) to subsection (2) of section 8, that nothing in
subsection (2) shall be construed as continuing in force on or after the appointed
day any form of control
by His Majesty's Government in the United Kingdom over the affairs of
the new Dominions or of any Province or other part thereof. The principle that His Majesty's Government in the United Kingdom
had no responsibility for and
had relinquished all control over the government of the Dominion made necessary
the enactment of section 7 which
declares that from the appointed day the suzerainty of His Majesty over the Indian States lapses, as well as
all treaties and agreements in force between His Majesty and any person having authority in the Tribal
areas, and that words `Indiae
Imperator' and
`Emperor of India' which
represented the sovereignty of the King over Indian territories shall be omitted
from the Royal Style and
Titles.
Under the temporary
constitution provided by section 8 a Federal Legislature had to come into existence
and some one from the appointed day had to - exercise
its functions under that constitution. Proviso (c) to subsection
(2) of section 8 therefore declares that the powers of the Federal
Legislature or the Indian Legislature under the Government of India Act, 1935; as in force
in relation to each of the Dominions, shall, in the first instance, be
exercisable by the Constituent Assembly of the Dominion
in addition to the powers exercisable by that Assembly
under subsection (1) of that
section. Thus the Constituent Assembly became on the 15th August 1947, not only the Legislature of the Dominion
for the purposes of section 6, fully competent to make provision as to the constitution of the Dominion but also the
first Federal Legislature under the scheme outlined
in the Government of India
Act, 1935, which
with necessary adaptation came into force on the same date. Accordingly the
position of the Constitutent Assembly is that it is the Legislature of the Dominion when it makes laws for the constitution of the Dominion
and the
Federal Legislature when it functions under
the limitations imposed
upon it by the Government of India Act, 1-,35.
This position may be explained in the form of a mathematical proposition and that is this :-
(1) Constituent
Assembly minus the fetters to which it is subject as a Federal Legislature is
equal to the Legislature o1 the
Dominion ; and
(2) Constituent Assembly
plus the fetters
to which it is subject
under the Government of India Act, 1935,- is equal to the Federal Legislature.
This situation is, clearly
brought out in subsection (3) of section 8 which says that any provision of the Government of India Act, 1935,
which, as applied to either of the new ` Dominions by subsection (2), operates
to limit the powers of ; the Legislature of that Dominion
shall, unless and until
other 5 provisions made by or in accordance with a law made by the Constituent
Assembly of the Dominion in
accordance with the provisions of subsection (1) of the section, have the like effect , as a law of the Legislature of
the Dominion limiting for the future the powers of that Legislature. Thus subsection (3) recognises the principle I have mentioned
earlier that the Legislature
of a Dominion may impose limitations on it for the future. The Constituent
Assembly had under subsection (1)
of section 8 the authority to exercise all the powers given to the Legislature of the Dominion by section 6
but because that Assembly had also to function as the Federal Legislature, the provisions of the Government of India
Act which operated to limit the powers of the Legislature of the Dominion
were to have the same effect as a law of the Legislature of the Dominion limiting for the future
the powers of that Legislature. In other words, the Constituent Assembly by functioning, as the Federal
Legislature had by law imposed
future limits on its power,
but under section
6 it had full authority to remove those fetters from itself at any time after
the midnight of ' 14th August, 1947, and this position was recognised expressly
both by subsection (2) and
subsection' (3) of section 8, to indicate which the former uses the words "excepting in so far as other
provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion", and the latter the words
"unless and until
other provision is made by or in accordance with a lave
made by the Constituent Assembly of the Dominion in accordance with the provisions or subsection (1) of this section". Thus Pakistan became independent
because (I) in law, on the midnight of the 14th August, 1947, if the
Constituent Assembly made a law and the Governor-General assented
to it, it could secede
from the Common-
wealth and become
a completely independent State, its citizens
owing no allegiance to the Crown
and not being British subjects ; and ,
(2) it was not subject,
as Canada and Australia were, to any disability to change its constitution.
It could have any constitution or
form of government she liked, having no connection with the Commonwealth or the Crown or the Governor-General as the
representative of the Crown.
But so long as it
did not secede
from the Commonwealth, it was a Dominion
because
(a) it was linked
with the Commonwealth by allegiance to a common Crown ;
(b) its citizens
were internationally British
subjects ;
(c) its laws needed the assent of His Majesty or his representative, the Governor-General ;
(d) the King's prerogative existed
here except to the extent
that it was utilized by parliament in the Indian Independence Act because the King
had placed .his ' prerogatives and interests at the disposal of
Parliament only "so far - as concerned
the matters dealt with by the bill"; and
(3) it could
make any law it liked,
constitutional or otherwise, and no law of the dominant ,country
was to extend to it.
LACUNA
There is, however, one obvious
lacuna in the Indian Independence Act which is otherwise a masterpiece of draftsmanship-it contains
no express provision as to what was to happen if the Constituent Assembly did not or was unable to make a
constitution,. or resigned en bloc, or converted
itself into a perpetual Legislature. It may be that any such contingency was
beyond the imagination of the
authors of the Act, but the more probable reason seems to be that they thought that any such contingency had .ceased to
be their headache. and was purely a concern of the "independent" Dominion. So long, as the responsibility for the government of the country
was that of the Government in London, a provision
to meet such a situation appeared in the constitution, but that responsibility having been disclaimed by the Indian
Independence Act, the necessity for relating any such provision also disappeared from the
constitution. If a breakdown came, it seems
to have been thought, it was for the Dominion
itself to reset the tumbled
down machinery. A third explanation has been suggested by the
learned , counsel for the appellants and that is that section 5, in view of its wide terms, was supposed
to contain a solution of the difficulty .by the exercise by the
Governor-General of his prerogative powers as representative
of the. King.
ROYAL ASSENT
We are now in a position to
approach the , question whether the Sind Chief Court had the jurisdiction to issue the writs in
question. The point sought to be made on behalf of the appellants is, that section 223-A of the Government
of India Act, 1935, which gives to a High Court the power to issue writs in the nature of habeas corpus,- mandamus,
prohibition, quo warranto and certiorari and which was inserted in that .Act by the Government of India (Amendment) Act, 1954, is not a part of the law because the amending Act did not receive the assent of the Governor-General as required by subsection
(3) of section 6 of the Indian Independence Act. The answer to the question raised depends upon the true
construction of .that subsection but before I
come to that it is necessary
briefly to refer to the English Constitutional Law and the law in force
, in the Dominions on the
Subject.
ASSENT IN BRITISH AND DOMINION LEGISLATION .
The necessity of the King's assent
to all legislation in England has its origin in a remote period in British history. Not only was Kingship
the great central institution around which the English constitution grew, but monarchy has always been the most deeply rooted and enduring
part of that constitution
and the whole course of English constitutional history is a story of the ever
varying concept of King , the Crown,
the Sovereign and His or Her Majesty. Though these words often represent-a political abstraction and are
not necessarily significant- of any judgment or discretion to be exercised by the person who for
the time being happens to occupy the throne, nevertheless they hide in themselves a .political
doctrine of profound practical importance which must be thoroughly understood in order to comprehend the essential
characteristics , of democractic institution of the British
pattern. Kingship was not imported
in Britain from the forests
of Germany but is an essentially indigenous
institution which first came into importance by the domination of the Heptarchy by Wessex. The emergence of a single
kingship and his `Council of wise men' called the `Witenagernot' lies at the root of
present political institutions and the theory of the Royal prerogative. The King issued
his orders with the advice
of the `witen'; his acts were limited
by the customs of the people ; and though he was the supreme judge,
the `witen' sat with him when he held his supreme court of justice.
Though the British people were
jealous of the power of the King, and they even beheaded one, except for a few brief periods they never
ceased to associate his name with legislation, however strong and independent the Parliament became. He was always an
integral part of Parliament and even
now the enacting part of every Act begins with the words "Be it enacted by
the King's most Excellent Majesty by
and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same." The power to give
assent to bills or withhold
it therefrom continued
to remain for a long time one of the personal prerogatives of the King which he could use to veto bills passed
by Parliament, and though the last exercise of this power was in the time
of Queen Anne, several eminent constitutional. writers referred to this reserve power of the King to control
legislation as recently as 1913 in the contro-
versy that arose over the passing of the Irish Home Rule Bill, Professor
Dicey, the celebrated constitutional
writer, writing to `The Times' in the course of that controversy declined to
enter on the academic enquiry
whether during that political crisis the King could rightly or wisely refuse assent to the Home Rule Bill after it
should for a third time have been passed by the House of Commons and rejected by the
House of Lords but he agreed
with the following words of Burke :-
"The King's negative to bills is one of the most undisputed of the royal prerogatives, and it extends
to all cases whatsoever. I am far from certain that if several laws
which I know had fallen under the
stroke of that sceptre the public would had had a very heavy loss, but it is
not the propriety of the exercise
which is in question.
It repose may be the preservation of its existence
and its existence might be the
means of saving the constitution itself on an
occasion worthy of bringing it forth.
Mr. Disraeli in 1852 expressed the
view that the Crown's right to refuse assent 'to legislation was still
outstanding and was not an empty form. "It is not difficult", he said, "to
conceive an occasion
when, supported by the sympathies of a loyal people, its exercise might defeat an unconstitutional ministry and a corrupt parliament."
Frederic Austin Ogg in his `English Government and Politics' asserts
that the royal assent, though given indirectly and perfunctorily, is indispensable to legislation and then reproduces the following graphic
account of the ceremony from Sir Courtenay
Ilbert's book 'Parliament':-
"The
assent is given periodically to batches of bills, as they are passed, the
largest batch being usually at the end of the session. The ceremonial observed
datos from Plantagenet times, and takes
place in the House of Lords. The King is represented by Lord
Commissioners who sit in front of the throne on a row of armed chairs arrayed in scarlet robes and little
cocked hats................................................................. At
the- .bar of the House stands
the Speaker of the House of Commons who has. been summoned from that House. Behind him stand such
members of the House of Commons as have followed him through the lobbies. The Clerk of the House of Lords reads
out in sonorous voice the commission
which authorises the assent to be given. The Clerk of the Crown at one side of
the table reads out the title of each bill.
The Clerk of the Parliament on the other side making profound obeisance’s, pronounces the Norman French formula
by which the King's assent is signified : The Little
Peddington Electricity Supply Act. (Le
Roy le Veult.)
Between the two voices
six centuries lie."
Mr. Chundrigar in all
seriousness raised what appeared to me to be a novel contention that royal assent
is not indispensable even in the United
Kingdom legislation, and in this connection he drew our attention to some episodes
in English history
when the country
had to carry on the business
of legislation without a
King, and referred to the following passage from Anson's "Law and Custom of the Constitution", Fifth Edition, p. 333
"3. We have still to
consider the action of the Crown as a party to legislation, and looking back at the history of this matter, and noting,
as we have had to do, the large, share of legislative power which the Crown once possessed, we are apt to forget
that laws have been passed
to which no royal assent was given ; we are apt to forget
the .episode of the Commonwealth ; the restoration of Charles 11 ; . the resolution of the Lords and Commons that the
Crown, should be offered, on the abdication
of James II, to William and Mary ; the strange conclusion at Which Lord
Chancellor Thurlow arrived during the
insanity of George III, in 1788, that he could put the great seal to a Royal Commission,
empowering him to give the
royal assent to Acts of Parliament."
He, however, omitted to read
the very next passage at page 334 of the book which contains the following
explanation of this anomalous
position :-
"We may leave out of
consideration the make-shifts to which constitutional lawyers may be reduced when the throne is vacant or its
occupant insane. All that can be done under such circumstances is to supply, as soon as may be, the deficiency in
the constitution. Apart from catastrophies which
need to be dealt with as may best suit the circumstances of each case, we may safely join with the second Parliament of Charles II in holding
that there is no truth in the `opinion that both Houses of Parliament, or
either of them, have a legislative power without the King', an opinion the expression of which rendered
its holder liable, by the same statute, to the penalties of a praemunire."
As far therefore as English law is
concerned, there has never been,
and cannot be any doubt that a bill cannot become a law in the absence
of the royal assent, and the House of Lords case in Stockdale v. Hansard (11839-9-A & E 1) expressly rules that
no Resolution of the House of Commons is a law unless it is passed by the other House and receives
the royal assent. There
is a
South African case, Ndlwana
v. Hofmeyer (1937
A D 229) commenting upon which at page
Iii of his Introduction to
Dicey's `Law of the Constitution' Wade says
:-
"The Court refused to
regard the procedure of Section 152 as binding and held that the legislature could
pass any measure
by joint or separate
sessions at their option provided that the bill received
the royal assent, it was binding on the Courts who would accept the
King's Printer's copy as conclusive evidence."
In that case Stratford A. C.
J. had thus stated the point --
"This is not a case where
one of the constituent elements of Parliament has not functioned. The contrary is clearly to be inferred from
the royal assent and promulgation. A resolution of one of the Houses of Parliament, in an example
of such a case : it is not an Act of Parliament, and a court
of law would not enforce it."
'
The assent of the King is also
necessary to all Dominion legislation, and before their independent status
was recognised by the convention of non-interference, the Governors-General of the Dominions utilized their reserve powers
to withhold assent if as representatives of the British Government they thought that the legislation in question was
contrary to imperial interests. A similar
power rested with the Governors of Colonies and Possessions. But before the
Imperial Conference of 1926 the
Governor-General's power to veto Dominion legislation had practically fallen into disuse and its removal was not
therefore insisted upon at that conference. Thus the Statute of Westminster, 1931,, which recognised the independent status
of certain Dominions, did not, except in
relation to Merchant Shipping and Colonial Admiralty . Courts, contain any provision
for the removal
of this legal restriction ; but
this was not because these
restrictions were not in law limitations on their
sovereignty but because they had not since long been used and it was mutually understood that they shall
not in future be used. Of course under subsection (2) of section 2 of that Statute these limitations could be removed by
the Dominion concerned because under
that subsection no law and no provision of any law made after the commencement
of the Statute by the Parliament of a
Dominion could be void or inoperative on the ground that it was repugnant
to the law of England
or to the provisions of any existing
or future Act of Parliament of the United
Kingdom or to any order, rule or regulation made under any such Act, and the
power of the Parliament of a Dominion
were to include the power
to repeal or amend any such Act, order, rule
or regulation in so
far as the same was a part
of the law of the Dominion
; and the reason
that they 'have not yet been
so removed is that in practice they had become inoperative and no Governor-General who is appointed and' is
liable to dismissal at the instance of the Dominion concerned call now possibly think of bridging them into use,
whatever his 'personal view or inclination
may be.
Mr. Mahmood Ali was obviously
labouring under some misapprehension when he attempted to apply to the present case the principle
that the- right to withhold assent exists only where there is a power to legislate and that where
the latter does not exist
the former cannot.
Stated as an abstract proposition, the principle is correct
but I do not see how it is applicable here, Mr. Mahmood Ali read long passages from Lord Mansfield's
judgment in Campbell v. Hall (XX How-St. Tr. 239) which lays down no more than that where the King has surrendered
his prerogative of legislation to a popular
Assembly in a conquered country, he himself
cannot legislate. That case is considered
by constitutional lawyers as an
authority for the deduction that freedom once granted cannot be taken back. But how can that principle be
applied to the present case ? The Indian Independence Act does not take away anything which had been previously
granted.. On the contrary, it confers full
freedom on the Dominion and gives to the legislature-of the Dominion powers
which under the Act of 1935 it was
incompetent to exercise. If Mr. Mahmud Ali assumes that the Crown had parted with the power to withhold its
assent to legislation in India, he is clearly mistaken because under the Act of 19:5 the Governor-General and the Governors
were entitled not only to give assent
to bills in His Majesty's name but also to withhold assent therefrom in
their discretion. It is, therefore,
wholly incorrect to . suppose that the right to control legislation by
withholding assent did not exist before
the Indian Independence Act came into force and that that Act, if it-retains the Governor-General's
power to withhold assent, has the effect of taking away something which had previously been granted. The Crown is a
constituent part of a Parliament in the United Kingdom, and of all. Dominion Legislatures: either -because it is
expressly so stated in the constitutional statutes
or because the Crown appoints the Governor General who is empowered to give or withhold assent to the legislation of the
Dominion. The same was the position under the Act of 1935, where the King's representative, i.e., the
Governor-General, was a part of the Federal Legislature. It is this common restriction that exists on the Dominion
legislation which subsection
(3) of section 6 intended to enact
when it provided that the Governor-General of the Dominion shall have full power to assent in His
Majesty's name (including the power to withhold assent) to the laws
of the Legislature of the Dominion.
On this part of the case Mr.
Chundrigar's argument was that the right to withhold assent to bills was retained in the adapted Act of 1935
because it had existed in the original Act and that it was not a necessary deduction from the provisions of subsection (3) of the Act of 1947 ; but in adopting this position he contradicted his other
proposition, vehemently urged, that the right to withhold assent to bills is an arbitrary control on
legislation and therefore a restriction on the legislative sovereignty of ' the Constituent Assembly.
If the power to withhold assent derogates from the legislative supremacy of the Legislature of the Dominion, i.e.,
the Constituent Assembly, it is obvious that sections 32, 75 and 76 of the adapted
Act of 1935 which still retain for the Governor-General the right to withhold assent are incompatible with the otherwise
limited legislative sovereignty of the Federal
Legislature whose power also are exercised by that Assembly, and that such restrictions being
inconsistent with the conception of full freedom could only be retained
or inserted if they were authorises and followed from the provisions of subsection (3). The restrictions are, therefore,
illustrative of the constitutional position that assent to the Dominion legislation by the Crown or its
representative is indispensable and has in no instance ever been dispensed with by the Crown. Elsewhere in this
judgment I have pointed out that Mr. Chundrigar' contention that the right
to withhold assent
is an effective restriction on the legislative activity, of a Dominion
Parliament is wholly
unfounded. and that no Governor-General o Governor of a Dominion can continue to occupy his
office he does not act on the advice of the Ministry to assent to an important legislation: This is certainly the
position under the adapted Government of India Act because the appointment and dismissal of the Governor-General being a matte on which
the advice of the Dominion Government would invariably be accepted by
the Crown, it is impossible for the
Governor-General to withhold assent from a bill to which the Ministry advises him to assent. Mr. Chundrigar urges the
in the case of the Constituent Assembly the , position .: different because the Assembly has no
Cabinet and no Prim Minister, but he forgets the basic position that the Constituent Assembly
as also the Federal Legislature and virtually choose
a
Cabinet and a Prime Minister and
that in case of a difference between the Governor-General and the Constituent Assembly
the Assembly as the Federal
Legislature can always have the Governor-General recalled.
Equally incorrect is the contention of Mr. Chundrigar that the requirement as to assent
in the other constitutions
is the creation of the statutes granting those constitutions. The true position
is that the provisions of those
statute relating to assent do not create in the Crown or in its representative a new right, but confirm an existing
right and merely provide the manner in which that right is to be exercised. Thus if the right to withhold assent to Dominion
., legislation is inherent in the Crown
and the statute that legislates o that right merely says that a bill
after it has been passed by the popularly
elected House or Houses shall be presented for assent to .the Governor-General,
who will give assent to that bill or withhold
it there from,
the statute does not create
the right to withhold assent but merely describes the manner in
which that right is to be exercised. Similarly the provision in the Government of India Act which give to the Governor General
the right to withhold assent
from legislation do no confer on, or create a
new right in, the
Crown ; on the contrary, they implicitly
recognise such right and regulate the manner in which it is to be exercised. It
is for this reason that the fiction
of making the Crown a constituent of the Legislature is resorted to, because neither the King nor hi representative,
the Governor-General, is a member of the Legislature like other members. The King or the Governor
General is a part of the Legislature only in the sense that all bills passed by the Legislature are presented .to him,
so that he may exercise his right of giving
or withholding assent. Thus subsection (3) of section 6 produces the same
result by giving to the
Governor-General full power to assent in His Majesty' name to any law of .the
Legislature of the Dominion. It makes the Governor-General a constituent part of 'the legislature inasmuch
as the right to. give assent
necessarily includes in it the right to withhold assent. Every bill must therefore
be presented to him to provide him an occasion
to exercise that right, and unless a bill is so presented a constituent par of the legislature does not function
and the proposed legislation does
not become law. There is, therefore, no distinction between those
constitutions where the Crown is a
constituent part of the legislature and the Legislature of the Dominion o
Pakistan whose 'functions are being
exercised by -the Constituent Assembly and to whose legislation assent is enacted by subsection (3) of section 6 as a necessary condition.
Let us now revert to subsection
(3) of section 6, the true question on which the decision of the case depends
being whether the first part of that subsection which
says that the Governor-General of each of ' the new Dominions
- shall have full power to assent
in His Majesty's name to any, law of
the legislature of that Dominion has the effect of enacting the necessity of
assent of the Governor-General to all laws made by the Legislature of that Dominion
and whether the Constitu- ent Assembly when acting under
subsection (1) of section 8 is a Legislature of the Dominion
within the meaning
of subsection (3) of section
6. It should be noticed
that the marginal
note to section
6 is . `Legislation for the New Dominions', which means that the provisions relating to the assent of the
Governor-General relate to legislation by the Legislature of the Dominion. If
the power to assent includes
in it the legal right to withhold assent,
which it does as held by Muhammad
Bakhsh, J., then the
subsection must be held to mean that the Governor-General has the right to
withhold' assent to any law of the
Legislature of the Dominion. The plain meaning of this provision is that, as representative of His or Her Majesty,
the Governor-General has full power of himself giving assent to laws which otherwise, on the common law doctrine that a law made by the legislature of a Dominion
is not law unless it receives the royal assent,
would require the royal assent.
If the law
gives to a person the power to do
a thing, the necessary implication is that; he heed not exercise that power. and that he has the right of
refusing to exercise such power A power is not a duty or an obligation and it is only if the words "shall have full
power to assent" are read to mean "shall be under an obligation to assent", that the discretion to withhold assent
can disappear, though
even then the legal necessity
of a formal assent would remain. Mr. Chundrigar has referred to section 32 of the Interpretation Act, 1889, but
that section in no way supports him because it not only draws the distinction between a power and a duty but also
declares that where a power is given to a
person to do a certain thing, that power may be exercised . from time to time.
In the debates on the Indian Independence Act in the House of Commons, Mr. Molson speaking
on clause (d) of the Proviso
to subsection (2) of section 8 suggested that under that clause instead of His
Majesty disallowing legislation on
the advice of the Secretary of State for India, it would under the Act be done by the Governor-General. In replying to this, the Attorney-General
said:
"The second point raised by the Honourable Member was in regard to the provision in clause 8 (2)
(d) as to reservation. That corresponds in the case of the Provincial Legislature with the provisions under clause 6 (3) with regard to the reservation of laws
passed by the Central legislature. That was
dealing with reservation until His Majesty's pleasure was known and that was a
form of reservation which enabled the
Governor-General to withhold assent to a Bill until His Majesty could be advised by the Government of the
United Kingdom about the matter. That provision would have been a wholly inappropriate one to retain and
obviously would have involved a derogation from the sovereignty we are now giving to the Dominion.
No doubt, the Governor-General will provide immediately, as the eventual
Constitution will have to provide
that there will be some sort of power of that kind vested in the Governor-General or provided for in the provisions
of the new Constitution, but that will be a matter for the new Constituent
Assembly." (440 H. C. Deb., 5th Series 194647, column
122).
It is quite clear from these
observations of the Attorney-General that in place of the provisions which did away with reservation and
disallowance by the insertion of clause (d) some sort, of control
on the Provincial Legislature was contemplated to be given to the Governor-General in the provisional constitution. Such. control
was actually given
by providing in section 75 of the adapted Act of 1935 that the Governor shall
declare either that he assents to a bill or that he withholds assent
therefrom or that he reserves
the bill for the consideration of the Governor-General, as well as by providing in section 76 that -when
a bill is reserved by a Governor for :he consideration of the Governor-General, the Governor-General
shall declare that he assents in His Majesty's name to the bill or that he withholds his assent therefrom. In the
same way section 32 of the . adapted Government
of India Act gives to the Governor-General the power to withhold assent from a
bill. This power to withhold assent
could, however, be given only if it was implied in the provision in subsection (3) of section 6 that the
Governor-General of each of the new Dominions shall have full power to assent in His Majesty's name to any law of the;
Legislature of that Dominion. The position, therefore, is that the words of the provision
in question give to the Governor-General the power
to withhold assent ; the sponsors of the Indian Independence Bill thought that
this power was implied in this
provision ; and the experts who adapted the Government of India Act, 1935, took this provision
to mean that the power
to withhold assent is implied
in the power to give assent. If the power
to withhold assent
had not been included in this provision, its insertion in sections 32, 75 and 76 of the
adapted Government of India Act
would have been entirely without
authority.
I have already pointed out that
the words "the powers of the Legislature of the Dominion", in subsection (1) of section 8 refer back to the powers
of the Legislature of the Dominion defined
in. section 6, which the
Constitutent Assembly was to exercise in its capacity of Legislature of the Dominion pertinent reference to section 6
is to be found in the Attorney-General's speech in column 118 of 440 H. C. Deb. 5th Series, 1946-47 ; where
referring to section 8 he said that that section
was to provide for a temporary constitution and that subsection (1) of section
8 gave the necessary legislative
power to a Constituent Assembly and attracted the provisions of clause 6. This .could only mean
that section 6 was the power-giving section while
subsection (1) of section 8 made those powers exercisable by the Constituent Assembly. If this relation of the two provisions was correctly stated by the.
Attorney-General, as I think it was, it could only mean that the provision of section 6 were applicable to
the powers given to the Constituent Assembly by sub- section (l) of section 8 and that the restriction as to the;
Governor-General's assent to legislation by
the Legislature of the Dominion, whatever may be the character of that
legislation was applicable when the Constituent Assembly exercised the powers of the Legislature of the Dominion!
under subsection (1) of section S. That subsection does not
say that the constitution of the
Dominion shall be made by then Constituent Assembly. It assumes that the powers
of the Legislature of the Dominion
include the power to make provision as to the constitution of the Dominion, declares that those powers shall
be exercisable in the first instance by the Constituent Assembly and directs that references in the Act to the Legislature
of the Dominion shall be taken as
references to the Constituent Assembly. It was contended both byl Mr.
Chundrigar and Mr. Mahmud Ali that
the Constituent Assembly, though it exercises the powers of the Legislature of the Dominion, is not itself the Legislature
of the Dominion. This to my mind is tantamount to a refusal to read subsection (1) of section 8, the only purport of
which can be that the Constituent Assembly shall be the first Legislature of the Dominion, competent to exercise
all the powers give to that Legislature by section 6
including the power to make laws as to the constitution of the Dominion. Learned counsel for the
appellants therefore rightly contended that the plain words of subsection (1) of section 8 that
"reference in this Act to the Legislature of the Dominion shall be construed accordingly" have the effect
of substituting the Constituent Assembly
for the words "the Legislature of each of the new
Dominions" in subsections (1) and (3) of section 6. That being the position, there can be no escape
from the conclusion that the Governor-General's assent to the laws made by the Constituent Assembly is as
necessary as his assent to any future Legislature of the Dominion brought into existence by the Constituent Assembly to
replace itself. It was conceded before us that if the Constituent Assembly dissolved itself
after creating another
Legislature of the Dominion
and everything else remained as it is today, the provisions of section 6 would
be applicable to such Legislature,
including the provision in subsection (3) relating to the assent of the Governor-General, and if that be so, I
do not see why the provisions of that subsection should not have been applicable to the Constituent Assembly itself
when under the express words of subsection (1) of section,
8 it became the Legislature of the Dominion
on the coming into force of the, Indian Independence Act.
The necessity of the Governor-General's assent
to legislation-is, as I have already
said, based on a well-understood principle which is known to every constitutional lawyer conversant with constitutional
practice in the United Kingdom and the Dominions. Legislation is the exercise
of a high prerogative power and
even where it is delegated by statute or charter to a Legislature, in theory it is always subject tai assent
whether that assent be given by the King or by a person nominated by, the King. In the British
system there; is not a single instance
to the contrary. That
necessity was, enjoined in the
case of Pakistan so long as it continued to be, a Dominion, though it was open to that Dominion, if the Governor-General gave assent to a bill of secession
to repudiate its Dominion status. The force of the
words `full power to assent' would be realised if a situation arose where; a bill of secession came up
before the Governor-General for assent. So far as His Majesty was concerned
he had given full powers
to his Governor-General to assent
to any legisla- tion of
the Dominion ; but the Governor-General; though he was a respresentative of the
King, was also the representative of the Dominion
in the sense that he was a ,person in whom the majority patty of the Assembly had confidence. He,
would, therefore, have no hesitation, and would also have the requisite authority to give assent. If, however, he
withheld assent, his immediate recall by His Majesty would have been successfully insisted
upon by the Assembly and the assent
could then have been
obtained from his successor.
Confused and clearly
contradictory, though they. are said to be alternative, arguments have been addressed to us as to the construction of
this subsection which consists of two distinct parts, the first declaring that the Governor-General
of the Dominion shall have full power to assent in His Majesty's name to any law of the Legislature of the Dominion
and the second saying. that so much of
any Act as relates to the disallowance of laws by His Majesty or the
reservation of laws for the signification of His Majesty's
pleasure thereon or the suspension of the operation of .laws until the signification of His Majesty's
pleasure thereon shall
not apply to the laws of the Legislature of the Dominion. I have already shown that if
the power to assent includes, as in my opinion it does, the power to withhold
assent, then the true import
of the first part ,trust
be that the . Governor-General, since he has the power
to withhold assent,
is a necessary part of the Legislature in precisely the -same sense as under the old Government of India Act he was a constituent part of the Federal Legislature because no bill could become
law unless he gave his assent thereto. The argument of Mr. Chundrigar and Mr. Mahmud Ali is that the word `law' as it
first occurs in the subsection means
a bill to which the assent of .the Governor-General has been given and which
has thus become a law. In this connection the language of the subsection is compared with clause (d) of the proviso
to subsection (2) which speaks of bills and .not laws. No inference. from this
comparison can, however, be drawn
because clause' (d) uses the language of the Government of India Act when it refers to the reservation of the
Provincial bills for the signification of ' His Majesty's pleasure,
or when it refers to an assented
bill as a `Provincial Act'.
The word `law'
in the subsection has been used in a general
sense, namely, any proposed legislation which has not as ye t~ received
the assent of the Governor-General ; otherwise the subsection would lead to this absurd result that
a legislative proposal which has already received the assent of the
Governor-General would need a
second assent. The assent of the Governor-General in respect of a proposed
legislation, which by the Government
of India Act is described as a bill, is needed only once and it is ridiculous
to say that the Governor-General of
the 'new Dominion shall have full power to assent to any bill to which
assent has already been given
by him..
The second contention of Mr. Chundrigar is that when this subsection says that the Governor-General
of the Dominion shall have full Dower to assent in His Majesty's name to any law of the Legislature of the Dominion,
it empowers the Governor=General
to give assent only in cases,
which are mentioned in the second part of the subsection, namely, where a law
may be disallowed by His Majesty
or reserved for the signification of His Majesty's pleasure or suspended
until the signification of such pleasure. This contention has to be
rejected for ,several ,reasons. Firstly, on that construction the first part of the subsection becomes wholly superfluous, because
it is undoubtedly within the competence of the Legislature of the Dominion
to say under subsection
(t) of section 6 that to a
particular' law the provisions of any Act of the Parliament of the United Kingdom relating to disallowance,
reservation or suspension shall not apply ; secondly, the plain terms of the first part of the subsection
do not limit its application to the cases specified in the second
part ; and thirdly, the words `reservation of laws' cannot
possibly relate to laws which
have already received the .
assent of the Governor-General. When asked to paraphrase the first part of the subsection in order to give to it the
meaning contended for, Mr. Chundrigar attempted the following substitution for it : the powers
of the Governor General to assent in His Majesty's name to any law of the Federal Legislature, which previously were not full, shall hereafter be full in the. sense that , the, Governor-General shall
be competent to give his assent in His Majesty's name in cases where a law could be disallowed by His Majesty or reserved
for the signification of His Majesty',s pleasure
or suspended until the signification of such pleasure.
Comment on this strained paraphrase is superfluous. There is no warrant for substituting `Federal
Legislature' for
`Legislature of the Dominion' ;
nor for limiting the operation of the first part only to cases contemplated in the 'second part ; and the
words used are clearly inapplicable to `reservation' of laws.
Our attention was drawn
to some Acts which provide
for disallowance, reservation or suspension, but none of these Acts contemplates
reservation after the proposed legislation has been assented to by the Governor-General or the Governor
of a Dominion or a Colony. I have already pointed out that the second part of the subsection corresponds to
sections 5 and 6 of the Statute of Westminster
which specifically refer to the Merchant Shipping Act and the Colonial Courts
of Admiralty Act. Section 735 of the
Merchant Shipping Act, 1894, enacts :-
"The Legislature of any
British Possession may by any Act or Ordinance, confirmed by Her Majesty in Council, repeal wholly or in
part, any provision of this Act relating to ships registered in that Possession ; but any such Act or
Ordinance shall not take effect until the approval of Her Majesty
has been proclaimed in the Possession or until such time thereafter as may be fixed by the Act or
Ordinance for the purpose."
It is obvious that the intention of this section
is that even where an Act or Ordinance of any British
Possession has received the assent of the Governor-General or the
Governor, it shall not be law until
it has been confirmed by . Her Majesty in Council and Her Majesty's approval of
that Act or Ordinance has been
proclaimed in the Possession.
Similarly, section 736 of that Act
says :-
"The Legislature of a British
Possession may, by any Act or Ordinance, regulate the coasting
trade of that British Possession, subject inter alia to the condition that the Act or Ordinance shall contain a suspending clause providing that the
Act or Ordinance shall not come into operation until Her Majesty's; pleasure thereon has been publicly signified in the
British Possession in which it has been passed."
Though the language used in' this
section is different from that of section 735, the principle underlying both of them is the same,
inasmuch as section 736 instead of requiring confirmation and its proclamation enjoins on the
Legislature concerned that the Act or Ordinance itself shall contain
a suspending clause providing that it shall not come into force
until Her. Majesty's pleasure
thereon has been publicly
signified. Thus though subsection (3) of section
(6) may apply to section
736, it does not in terms apply
to confirmation, or approval mentioned in section, 735.
Section 4 of the Colonial
Courts of Admiralty Act, 1890, relates to reservation of Colonial laws for Her Majesty's assent. It provides that
certain Colonial laws shall, unless previously approved by Her Majesty through a Secretary of State, either be reserved
for the signification of Her Majesty's pleasure
thereon,- or contain
a suspending clause providing that such law shall not come into operation until Her Majesty's
pleasure thereon has been publicly signified in the British Possession in which it has been passed.
Here again the section relates . to approval, reservation and suspension, and though the second part
of subsection (3) may be applicable to suspension, it does not . apply to approval and is clearly inapplicable to
reservation in the sense which Mr: Chundrigar
and Mr. Mahmud Ali attach to it, because the section clearly enjoins the assenting authority not to assent to it but to reserve it for the signification of Her
Majesty's pleasure. Similarly. the
reference to section 1 of- the Colonial Evidence Act, 1843, is beside the point because what that section enacts is
"No law or ordinance made or to be made by the Legislature of any British
colony for the admission of the evidence
of any such persons as . aforesaid in any Court or before
any magistrate within
any such colony shall be or
be deemed to have been null and void or invalid by reason of any repugnancy or supposed repugnancy
"of any such enactment
to the law of England,
but every law or ordinance
made or to be made by any such Legislature as aforesaid, for the admission
before any such Court or magistrate
of the evidence of any such .persons as aforesaid on any conditions thereby imposed, shall have such and the
same effect, and shall be subject to the confirmation or disallowance of Her Majesty is such and the same manner, as any
other law or ordinance enacted for any other
purpose by any such colonial Legislature",
but subsection (3) of section 6
contains no reference to
confirmation.
It will be apparent from what I
have said above that it is a contradiction in terms to speak of the Governor-General as giving assent
to a proposed legislation which has already
received his assent,
and unless this impossible position
be accepted, the construction of this subsection put forward for the
respondent, namely, that the word `law' where it first occurs in subsection (3)
refers to cases where the assent of
the ' Governor-General has already been given, cannot be accepted. Again, the- word `law' has to be distinguished
from the word `Act' because while the first part of the subsection says that the Governor-General shall have the power
to assent to any law, the second part
speaks of an Act relating to disallowance, reservation or suspension. This clearly
means that the second part of the subsection applies
to Acts relating to disallowance, reservation or suspension and that the word `Act' there is used in a sense
different from that in which the word "law' has been used in the first part, namely, in the
sense of a bill or legislative proposal which has been passed by the Legislature but which has not
received the assent of the Governor-General.
Faced with this difficulty Mr. Mahmud Ali shifted his position and asserted that the word `law' in the first 'part of the
subsection means an Act or Ordinance. But any such construction would lead to
the absurd result that an Ordinance
or Act which has been passed by, or received
the assent, of the Governor-General would need a second
assent by him. Thus none of the various constructions suggested on behalf of the respondent fits in with the plain
language of the subsection, which shows that the word "law" in the first part of the subsection
is used in a general sense and not in
the sense of a bill which has
already received the assent of the Governor-General. Evidently the words "so much of any Act" used
in the second part of the subsection were intended to refer not. only to those provisions of the Act of
1935 which had required the Governor-General to reserve . bills for the signification of His
Majesty's pleasure or enabled His Majesty to disallow Acts, but also to those provisions of the other Acts
of Parliament of the United Kingdom which related to reservation, disallowance or suspension of laws in the
Dominions, Colonies or Possessions. The power to withhold assent
has not been specifically mentioned
in subsection (3) and the subsection, as it stands, cannot be taken as
enacting that the Governor-General shall not have the power . to withhold assent to legislation. The power
to withhold assent appeared in the Act of 1935, and has also been retained in the adapted Act. Unless, therefore, the
power to assent necessarily included in
it the power to withhold assent, and this result followed from subsection (3),
it could not have found place in the
adapted Act either in regard to Federal' legislation or in regard to Provincial legislation. Mr. Chundrigar's argument
that it has been retained in the adapted Act because it appeared in the original
Act .being based, as already
pointed out, on an obvious fallacy.
The argument seriously advanced
on behalf of the respondent and which was readily accepted in the Chief Court that the words "Legislature
of the Dominion" in subsection (3) refer only to the Federal Legislature must be rejected on
the short ground that; as already pointed out, the laws which the Legislature of the Dominion is empowered by section 6
to make may be constitutional laws
which are not within the competence of the Federal Legislature as, for
.instance, laws repealing or amending
the . Indian Independence Act, or the adapted Government of India Act, and laws limiting for the future the
powers of the Legislature of the Dominion. If the reference in section 6 had been only to the Federal
Legislature, one would have expected for the present phraseology of subsection (3) some provision similar to proviso
(d) to sub= section (2) of section 8.
The next point taken by Mr. Chundrigar
was that subsection (3) of section 6 must be read with section 5 which says that the Governor-General represents the Crown
only for the purposes of the government of the Dominion, the inference
sought to be drawn being that because the Governor- General represents the Crown only for the purposes of the
government of the Dominion he can have
no say in constitutional legislation by the Constituent Assembly. This argument
appeared to be unanswerable to one of the learned
Judges of the Sind Chief
Court who thought
that. the words
`government of the Dominion' only meant government under the adapted
Government of India Act as provided by subsection (2) of section
8. When questioned whether government also includes the administration of constitutional laws Mr. Chundrigar replied in the affirmative, but he asserted
that so far as the making of constitutional laws is concerned it is not
a part of the government of the
Dominion and the Governor General does not come in there. I do not understand
how if the administration of
constitutional laws is a part of the government of a Dominion, their making is not. The marginal note to section 8
"temporary provision as to the government of each of the new Dominions" shows that the legislation of the Constituent Assembly under subsection (1) of section
8 is a part of the government of the Dominion and the whole scheme of
the Government of India Act proceeds
on the assumption that the Governor-General represents the Crown when he
assents in Her Majesty's name to the
laws of the Federal Legislature. Therefore it seems to me to be an impossible proposition to ,assert the
making of laws is not a part of the government of the Dominion, and that being so no
reason whatsoever has been suggested why the making of constitutional laws should
not be a part of the government of the Dominion. If the
Governor-General represents the
Crown for the purposes of the government of. the Dominion when he! gives assent to -the laws passed
by the Federal Legislature, it must a fortiori follow that he represents the Crown for the same purpose when he assents
to constitutional laws,
because in a State like ours it is impossible to conceive of a government without there being a constitution.
It is next contended on behalf
of the respondent that rule 62 of the "Rules of Procedure of the Constituent Assembly,. which provides that
when a bill is passed by the Assembly copy thereof shall be signed by the President and it shad, become law on being published . in the official Gazette
Pakistan under the authority of the President, has the effect Q fi
validly dispensing with the Governor-General's assent.
This rule has a history
which should be mentioned. In its original
form the Rule, when passed on
the 24th February, 1948, in meeting presided over by the Quad-i-Azam who was
thin the President of the Constituent Assembly, was as follows :-
"When a bill
is passed by the Assembly a copy there shall be signed by the President."
In the meeting of the 22nd May
1948, under the presidentship of the respondent, Sardar Abdur Rab. Khan
Nishtar moved the following amendment
:-
"That for rule 62
of the Constituent Assembly Rules, tie following be substituted,
namely :-
"Assent to Bills.-When, a
bill has been passed by the Assembly, it shall be presented to the President
for his assent'."
Khan Sardar Bahadur Khan,
however, moved the following amendment
for that moved by Sardar Abdur Rab
Khan Nishtar :-
"That for rule 62 of the
Constituent . Assembly Rules, the following be substituted When a bill is passed by the Assembly, a copy thereof
shall be signed by the President and it shall become law on being published in the official Gazette of
Pakistan under the authority of the President."
This amendment was accepted by
Sardar Abdur Rab Khan Nishtar and was adopted without discussion. The confusion
as to the scope and nature of the
rule is apparent from the amendments. Sardar Abdur Rab Khan Nishtar's
amendment related to assent to bills while
that of Sardar
Bahadur
.Khan related to their
authentication. The former aimed at substituting the assent of the President for that of the Governor General without
an amendment of section 6 of the Indian Independence Act while the latter said nothing about assent and sought to provide for authentication. of the bills
and as to when they became law. The latter
amendment succeeded and is now Rule 62 of the Rules of Procedure.
There is no specific provision in
the Act of 1947 empowering the Constituent Assembly to make its own Rules of Procedure but that does
not mean that it was incompetent to . flake such Rules. Such power is inherent to a Constituent Assembly and must be presumed
to vest in it. The question, however whether Rule 62 is a mere rule of
procedure or law in the Sense that it overrides the provision in the constitution that tense bill of the Legislature
of the Dominion requires the Governor
General's assent. It will be noticed that the Rule says nothing about assent
and relates only to authentication.
It is, therefore, not inconsistent with the constitutional provision that a
bill in order to become law must be assented
to- by the Governor General,
and is quite capable of the
construction that it assumes a
bill to have been assented to by the Governor-General before it is signed by the President and published in
the Gazette. In the second place, it cannot. be said to be a law governing
the decision of the present
question. It may be that if a legal right can be founded on a Rule of Procedure, the breach of that rule may provide
to the person in whom
that right vests a cause of
action. to come in Court, but no such rule can become law so long as the
constitutional provision which conflicts with it is not repealed. Under the Assembly's own rules, all amendments to the Constitution have to follow
the procedure of bills which is' prescribed by Rules 43 to 62 and it is admitted that the amendment which
gives its present form to the Rule did not comply with that procedure. This shows that even the Constituent Assembly
did not consider the Rule to be a constitutional
provision, much less a provision overriding or repealing a specific
constitutional provision. If the
Assembly intended to change the law relating to assent, it was necessary for it
to amend section 6 of the Indian Independence Act in such a manner
as to dispense with the necessity of the Governor-General's assent. A mere
Rule of Procedure cannot amend the Constitution Act any more than a Resolution by the Assembly that a person named
shall be stoned to death for an act
that is not an offence under the substantive law of crimes and without his
being tried in accordance with the law relating to criminal procedure. Lastly, even if this Rule be assumed
to be a constitutional provision, it itself required the
Governor-General's assent and, in the absence of such assent, is wholly invalid.
Contemporanea Expositio and argument ab inconvenient
I may notice here Mr. Chundrigar's argument that because
for several years no
assent to an Act of the
Constituent Assembly, while sitting as a constitution-making body under
subsection (1) of section 8, was ever
obtained, and that some important Acts passed by the Assembly were treated as law by every one concerned, though they
had not received the assent of the Governor-General, subsection (3) bf section 6 must be so interpreted as not to
be applicable to the legislation passed by
the Constituent Assembly . under subsection (1) of section 8. In this
connection, he read to us some
passages from pages 399-401 of Crawford's "Statutory Construction",
1940 Edition, and pages 144, 146,
147, 148 and 150 from Cooley's First Volume of "Constitutional
Limitations", Eighth Edition.
The rule enunciated in these passages
is the principle of Contemporanea Expositio which also
applies to the construction of documents. The principle as applied to documents
may be stated to be as follows in
order to explain, but not to contradict, ancient (documents whose meaning is doubtful, the acts of the
parties, even before the execution of the instrument, or the mode in which property has since been held
and enjoyed thereunder, as well as constant modern user may be given in evidence. Such. evidence, however, seems
now admissible not only in the case
of ancient, but also of modern documents, and whether the ambiguity be a
curable patent ambiguity or a latent
ambiguity. On the other hand, where the meaning of the words is not ambiguous, the subsequent acts of the
parties are not admissible to construe it, whether the document be ancient or modern (Sue Phipson's Evidence, 7th Ed.,
605 and Taylor, Evidence Sections 1204=1205.).
In its application to constitutional statutes,
the rule is thus stated
by Cooley at page 144 of his book
:-
"Contemporaneous interpretation may indicate merely the understanding with which the people received it at the time, or it may be accompanied by acts done in putting
the instrument in
operation, and which necessarily
assume that it is to be construed in a particular way: In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always of. necessity be vague and indecisive. But where there has been a practical construction, which has been 'acquiesced in for a considerable period,
considerations in favour
of adhering to this construction 'sometimes present themselves to the Courts with a
plausibility and force which it is not easy to resist. Indeed, where a
particular construction has been,
generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the
constitution and by those who had opportunity to understand the intention of the instrument, it is not to be
denied that a strong presumption exists that the construction rightly interprets the intention."
In all the cases where observations of this kind have been made, the true intention of the particular provision in the constitution was ambiguous or doubtful, and I
know of no instance where the words
of the constitution being clear and consistent with a reasonable
interpretation, any Court ever went to the extent of misconstruing its true purpose
merely because somebody
else had, taken
a mistaken view of it. There is no question
of estoppel in such cases,
the correct description of 'the reasoning employed being argument ab .
inconvenienta. This mode of construction of written constitutions is, therefore; - subject to an overriding consideration which has thus
been stated by . Cooley
himself at pages 149-150:-
"Contemporary construction can never abrogate
the text ; it can never fritter
away its obvious
sense ; it can never narrow
down its true limitations ; it can never enlarge its natural boundaries. While we conceive
this to be the
true. and only safe rule, we shall be obliged to confess that some of the cases. appear, on first reading, not
to have observed these limitations . . . . . .
"It is believed, however-,
that in each of these cases an examination of the Constitution left in the minds of the Judges sufficient doubt
upon the question of its violation to warrant their looking' elsewhere for aids in interpretation, and
that the cases are not in conflict with the general rule as above laid down. Acquiescence for no
length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the
Constitution, and appointed judicial tribunals
to enforce it. A power is frequently yielded to merely because it' is claimed,,
and it may be exercised for a long
period, in violation of the constitutional prohibition, without the mischief which the Constitution was designed to guard against
appearing or without
anyone being sufficiently interested in the subject to
raise the question ; but these circumstances cannot he allowed to sanction an infraction of the Constitution. We think
we allow to contemporary . and practical
construction its full legitimate force when we suffer it, where it is clear and
uniform, to solve in its own favour the doubts which arise on reading the instrument to be construed."
Therefore to apply the principle
of contemporaneous and practical exposition to the present case, we shall first have to say that there
is a doubt in our
mind as to the true meaning
of sections 6 and 8
as a whole, and particularly as to the meaning of subsection (3) of section 6
and subsection (1) of section' 8.
I think we should
be mutilating the-Act
and misunderstanding in its true purpose and scheme if we were to hold that the words of
subsection (1) of section 8 "for the purpose of making provision as to the constitution of the Dominion" do not refer
to the power which section
6 gives to the
Legislature of the Dominion,
including the power to alter, repeal, or amend the two Constitution Acts themselves or that the power to give
assent to which the third subsection of section 6 . refers does not include the power to withhold
assent. In my opinion, it is a mistake to suppose that sovereignty in its larger sense was conferred upon the
Constituent Assembly, or that it could function
outside Vie limits
of the Indian Independence Act. The only power given
to that Assembly
was the power to make laws, constitutional or federal. In the former
case, it exercised the power to make provision as to the constitution of the Dominion
which had been included in the generality of the powers
conferred - by section 6 on the Legislature of the Dominion,
and in the latter it acted as the Federal
Legislature with all the limitations to which that Legislature was subject. Apart from these powers, it had no other power and
it lived in a fool's paradise if it was ever seized with the notion
that it was the sovereign body in
the State. It had, of course,
Legislative so , as the Legislature of the Dominion
but then the Governor-General was a constituent part of legislature. Every Act passed by it required the
Governor-or-General's went, consistently with the position that prevails throughout the Dominions, the Colonies and the Possessions, settled or ceded or conquered, where the Crown still retains
to itself or has delegated
to its representative the
high prerogative right of assenting to bills.
If this basic position was misunderstood or misconstrued, there is neither any estoppel nor is the argument ab inconvenienti applicable. On its interpretation of the Indian
Independence Act, the Constituent Assembly attempted to function outside the Constitution, and it was the
right not only of the Governor-General to object to such, unconstitutional activity, but the right of every citizen
in the State to demand that the Assembly
.must function within its constitutional limits.
The members of the Assembly
before they undertake the duties of their office take the oath of allegiance to the
constitution of Pakistan, and they are subject to all the limitations of that Constitution. Having taken that oath, they cannot subsequently forswear themselves and assert that they are the only sovereign
body in, the State and that their will is the
law whether the Governor-General
endorses or do no endorse that will.
DISASTER
It has bean suggested
by the learned Judges of the Sind Chief Court and has also been vehemently urged before us that if the view that
I take on the question
of assent be correct, the result would be disastrous because the entire
legislation passed by the Constituent Assembly, and the acts done and orders passed
under it will in that case have to be held to be void. On this part of the case I do not wish to say anything more than that the sole question before us is whether the Governor-General's
assent was obtained to the Government of India (Amendment) Act of 1954, which, inserted section 223-A to the
Government of India Act, and nothing said here should be deemed to be applicable to any other Act. In England the assent
is given by the King to a bill in person or by commission. It is ceremonial act and has to be formally
recorded. Mr. Chundrigar is, however, right in the contention that in Pakistan
no particular form for assent
is prescribed,
.and- that it need not be in
writing. It may be that where the Governor-General has taken some action as, for example, where
he has issued some rules in exercise
of the authority given to him by the
Act or taken some other step, his assent to the proposed legislation may by
inferred. . That question is not before
us and I do not decide it. We are concerned in the present
case only with the validity of the Government of India (Amendment) Act of 1954, and so far as that Act is concerned, it is common ground that it was not presented to the
Governor-General for assent, and that he has
not done anything under this Act which might be taken as~ indicatives of his having assented to
'it. I am quite clear in my mind
that we are not concerned with the consequences, however beneficial or disastrous they may be, if the undoubted legal
position was that all legislation by the Legislature of the Dominion
under subsection (3) of section
3 needed the assent of the Governor-General. If the result
is disaster, it will merely
be another instance
of how thoughtlessly the
Constituent 'Assembly proceeded with its business and by assuming for itself
the position of an- irremovable
Legislature to what straits it has brought the country. Unless any rule of
estoppel require its to pronounce
merely, purported legislation as complete and valid legislation, we have no option but to pronounce it to be void
and to leave it to the relevant authorities under the Constitution or to the country to set right the position in any
way it may be open to 'them. The question
raised involves the rights of every citizen
in Pakistan, and neither any rule of construction nor any rule estoppel stands in the way
of a clear pronouncement. Consistently with the practice that has grown up since his sad demise, of citing Quaid-i-Azam's alleged oral sayings
as authority for a particular proposition, it has been
alleged before us that the practice of not obtaining the assent of the Governor-General to acts of the Constituent
Assembly had, come into existence during
the Quaid's time and had his support. We have no record of any ruling having
been given by him on this point, nor
any legal opinion obtained by the Assembly from anyone has been produced
before us: Reference has been made to two Acts which during the Quaid's Presidentship of the Assembly
were published in the Gazette
"under the authority of the President
of the Consti- tuent
Assembly" and it is alleged that they were never placed before the Quaid
for purposes of assent: But during
those days the Quaid was not only the President of the Assembly but also the Governor-General and it is quite possible
that he might have thought that since the bills were passed under his own Presidentship it was unnecessary again to
place them for his assent as Governor-General.
Be this as it may, the conduct of one Governor-General in a matter like this does not relieve his successor of * the
duty of demanding compliance with the Constitution. Wheare, while discussing the efficacy of non-legal rules as - a
medium of constitutional change, says at page 18 of the Fifth Edition
of his book "The Statute
of Westminster and Dominion Status": "In the first place, they (non-legal rules)
cannot always nullify
or modify a rule of strict law. In the second
place, though they may nullify, a rule of strict law, . they do not and cannot,
abolish it. They may paralyse a limb
of the law but they cannot amputate it." Can practices and conventions override an express statutory provision
merely because nobody attempted or cared to understand it and its
implication ?
I now proceed
to examine the case
on which. Mr. Chundrigar relied. The first of
these is the Sind
. case, M. A. Khuhro v. The
Federation of Pakistan (P L D 1950 Sind 49) in which Hassanally Agha J. held that the meaning of subsection (3) of section
6 of the Indian Independence Act is that the
assent of the Governor-General is required only where the assent of His Majesty
is necessary under the Constitution.
These, however, are not the words of the subsection which speaks of the "Legislature of the Dominion" in
which expression subsection (1) of section 8 expressly includes the Constituent Assembly, and says that
the Governor-General of the Dominion shall have full power to assent
in His Majesty's name to the laws of the Legislature of the Dominion, which power necessarily implies the power to
withhold assent. In Khan Iftikhar Hussain Khan of Mamdot v. The Crown ((1951).FCR24-PLD195UFC15) the Crown was intervener, but there the sole question
to be determined, was whether
the Public and Representative Offices
(Disqualification) Act, 1949,
fell within the powers of the Constituent Assembly as the Federal Legislature or within. the powers of the Legislature of the Dominion
competent to make constitutional provisions, it being assumed
by every one concerned that the assent of the Governor-General was necessary only where the
Constituent Assembly functioned as
the Federal Legislature. The question whether when the Constituent Assembly acts under subsection (1) of section 8 and
exercises the powers of making provision
as to the constitution of the Dominion, the assent of the Governor-General
under subsection (3) of section 6 is
necessary for its Legislation, was neither raised,. nor discussed, nor decided.
That case therefore
is no authority for the proposition that the Governor-General's assent is. not necessary
under subsection (3) of section
6 to legislation by the Constituent Assembly
when it functions as the Legislature of the
Dominion..
In the Irish case Ryon v. Lennon (1935
1 R 170.) extracts from which are reproduced at pages 377 to
383 of Sir Ivor Jennings' book "Constitutional Laws of the
Commonwealth"., 2nd Edition, the question involved
was entirely different, namely, whether the amendment by the Oireachtas to the constitution set up by the Third
Dail, sitting as Constituent Assembly,
was ultra vires, though .there
are some observations there in the arguments of counsel, Mr. Gavan
Duffy, that the constitution was
proclaimed in the name of the people' by Dail Eireann (Third Dail) as an act of
supreme authority and that it did not require any -assent. The all-important fact which must not be forgotten about the Irish instance is that the
Constitution of the Irish Free State , (Saorstat Eireann) Act, 1922, made by the Third Dail (Dail Eireann) was recognised by the Irish Free State (Constitution) Act. 1922, passed by the Parliament of the United Kingdom just as the Constitution of India made by the Constituent Assembly which, if the information supplied to us by Mr. Chundrigar is correct; had not received the assent of the
Governor-General, was recognised by the Parliament by the India (Consequential Provision) Act, 1949
(11, 13 and 14 Geo. 5 c. 92)
Sovereignty of Constituent
Assembly
Mr. Chundrigar's next
contention was that this interpretation of subsection (3) should be rejected on the principle
of reductio and absurdem inasmuch
as it affects the sovereignty of the Constituent Assembly by recognising outside that Assembly an authority
which has the power to veto all legislation
by it. He also relies on the omission of the words `in his discretion' in the
adapted Government., of India Act by
virtue of clause (c) to the Proviso to subsection (2) of section 8 and the disappearance of the practice of ,
issuing instructions to the Governor-General, as factors, in favour of a contrary construction.
Illustrating the point, he argues that on this construction of the subsection the Crown may appoint any one
it likes as the Governor-General of the Dominion and the person so appointed may be hostile
to Pakistan, as for instance, a retired officer
of the old Civil Service with Congress sympathies and
anti-Pakistan views who may not only refuse assent to all material legislation but also withhold
assent from any legislation removing the office of the Governor-General himself or declaring Pakistan as an independent
country. No construction of this
subsection, he says, should be accepted which would be completely incompatible
with the independence of Pakistan as
a Dominion and introduee into the legislation of the Dominion effective control by the Crown or by the .
Crown's representative. The argument proceeds on an obvious fallacy and a clearly
mistaken assumption. In the first place, the Indian Independence Act nowhere says that .the Constituent Assembly
shall be the sovereign of the new Dominion. It gives to it only the power of the Legislature
of the Dominion and' nothing more. The expression sovereignty of Constituent Assembly was repeated
before us ad nauseam but as has been observed
elsewhere when we pointedly asked Mr. Chundrigar whether apart from
legislative functions it had any other powers,
under the Indian
Independence Act, the hesitating reply
was, and rightly,
in the negative. Now if it be held as a matter
of construction that the Governor-General _ is assigned
a necessary part in the legislation of the Dominion,
the legal sovereignty of the Constituent
Assembly is reduced to a myth,
because on that construction the Assembly cannot effectively function alone. But that does not mean
that its legislative sovereignty cannot be converted into an actuality in exactly the same way as in the other constitutions, namely,
by having a Governor-General
who is acceptable to the Assembly, who will not resist legislation by the Assembly, and who can be recalled if he
goes against the advice of the Ministry. The rule has worked well for a long time in all self-governing Dominions. 1f, therefore, a similar provision has not in any way affected the independence of the other Dominions where well-established conventions have been responsible for a
smooth working of the constitution, there is no reason why. the Pakistan Constitution could not have been and should
not have been worked in that manner.
To illustrate the point, suppose that the Constituent Assembly. 'decides . to
secede from the Commonwealth and to
declare Pakistan as an independent republic. On my interpretation of subsection (3), the Governor-General's
assent to such legislation would be necessary. But there cannot be the slightest difficulty in obtaining his assent. If
the GovernorGeneral refuses assent a request
for his recall addressed by the Prime Minister to the Secretary of Her Majesty
would be sufficient for the purpose
because the matter would not go to Her Majesty's Government in the United Kingdom, that Government having
relinquished all responsibility for the government of this country, and Her Majesty xhe Queen in such matters normally
acts on the advice of the Ministry of
the. Dorhinion provided that the ministry represents the people of the
.Dominion as ministries in other
Dominions do. She herself takes no more part in the politics of a Dominion as she does in the United
Kingdom and it is wholly erroneous to suppose that contrary to her attitude
in home politics she would assume the . role of a partisan in the
internal politics of any of her Dominion.
On having the Governor-General recalled, the Constituent Assembly can recommend for appointment
another person who would be willing to give his assent
to the bill of secession.
I have already pointed out that
the necessity of the assent of the King to legislation by the House of Commons and the House of Lords was at
one time one of the most important reserve powers and was actually used in Britain by the Crown in and before the
reign of Queen Anne to veto objectionable
legislation and in the Dominions by the Governor-General to defeat legislation which appeared to him adversely to affect
the Imperial interests .or to be otherwise unpopular. Now the generally accepted position in this respect, however, is
that this power can be exercised. in
the United Kingdom only on the advice of Ministry and in the Dominions oar the
advice of the Ministry of the
Dominion. The issue has not actually arisen in recent times because the
throwing out of an important
Government bill by the House of Commons in England or by the Legislature in a Dominion amounts
to a vote of no , confidence in the Ministry
and is thus a valid constitutional ground for the Ministry to resign or to
ask for a dissolution and not for advising the King or the Governor
General to withhold
assent. But whatever
may be the position, it cannot possibly
be said in the case of Dominions
including Pakistan' that the Governor-General is in a position to exercise this power in opposition to the wishes
of a Ministry which represents the people of the Dominion, Though the Governor-General is supposed to be a representative
of the king, in fact he is a representative
of the Dominion concerned, because his appointment and dismissal depend on the advice of the Ministry of the Dominion
which on the convention of non-intervention is always accepted by the Crown.
If, . therefore, the Governor-General withholds his assent
to any legislative measure
to which he is required to give his assent by the Ministry of the Dominion, the
Ministry is generally in a position
to have .him immediately recalled oar removed. He cannot, therefore, exercise the power of with' holding assent
contrary, to the wishes of the Ministry or in order to veto legislation against
the advice of the Ministry. It follows from this that the provisions
empowering him to give his assent
are in no sense a fetter on
the sovereignty or the independence of the Dominion, and' in Pakistan they certainly do not amount
to an encroachment on the legislative
sovereignty of the Legislature of the Dominion. Even in the case of Federal
legislation the Governor-General
has the power to give or withhold assent, but he cannot, if the Constitution is functioning in normal times and in
its true spirit, withhold assent contrary t0 the wishes of the Ministry
And this is so, not because the words `in his discretion' which occurred is the Act of 1935
have been omitted from the adapted relevant provisions but because the
withholding of assent to such legislation, when the Ministry
requires him to give his assent, can raise -a constitutional issue
which can only end in the recalling
or removal of the
Governor-General. Any attempt
therefore to construe the Governor-General's power to
withhold assent as a veto on legislation proceeds on a misapprehension and cannot
be made a ground for the inference' that that power is an infringement of the legislative sovereignty of the
Legislature of the Dominion and thus of the Constituent Assembly. ,
NODDING AUTOMATON OR AUTOCRAT?
From the fact that the
Governor-General is the head of the State, it must not tie inferred that in matters of legislation his position is
either that of a nodding automation or that of an autocrat. He is appointed by the King and represents
the King for the purposes of the Government of the. Dominion, .but that does not mean that he is an unrestrained
autocrat, and purporting to act on behalf
of the King, can in normal times take an active part in the actual
administration of the country: Since the Imperial
Conference of 192.) he has generally been a man of the Dominion and a
representative of that Dominion just as the Prime Minister is. As a
constitutional functionary, it is
his duty to give his assent to all reasonable and necessary legislation by the
Legislature. But there may be
occasions, however remote their conception may be, where the Governor-General would be entitled to withhold his assent
from a particular legislation. In the United Kingdom, if the House of Commons passes
a law -which strikes
at the very .foundations of the constitution, as for instance,
where Parliament indefinitely prolongs its life or trifles with the right of
the electors to vote, the Sovereign may, and perhaps
would, whether the Ministry advise it or. not, exercise
his reserve powers of withholding assent or dissolution. The same is the position
of the Governor-General in the Dominions Leslie Stephen, while
illustrating the omnipotence of the Legislature, says at page 143 of the 1882 edition of his Science
of Ethics: "If
a Legislature decided
that blue-eyed babies should be murdered, the preservation of blue-eyed., babies would be illegal; but legislators must go mad 'before they pass such a law and subjects
be idiotic before they submit
to it." If a similar law were passed by the Constituent Assembly,
and this of course is an extreme case
which is being mentioned merely to explain the point, I have no doubt that it
would be the duty of the Governor-General to. withhold his assent from such legislation not because he has any instructions
in the matter from the King, but because he represents the Dominion and in such matters he is supposed to be able rightly
to gauge the public feelings and sentiments. Similarly, if the Constituent Assembly decided to make
a law - that all adults; shaven or unshaven as it chose to say, shall be deprived of the rights of citizenship in
Pakistan, the Governor-General will undoubtedly withhold
assent from such legislation. Or take the instances mentioned
by Mr. Faiyaz Ali before
the learned Judges of the Chief Court to illustrate his theory of checks and
balances. "I have given your
Lordships," said Mr. Faiyaz Ali,- "one, example of a possible misuse
of these powers, namely, that the
Constituent Assembly could, if absolutely uncontrolled, legislate that everyone
of its members was to get a -salary of one lac of rupees
per month, enjoyable
for life and
heritable from generation to
generation. What was there to prevent it 'from doing so ? But let us take a more probable and less extravagant
instance. Suppose the Constituent . Assembly. in the exercise of its absolute powers decided to impose a Soviet Constitution on Pakistan. Suppose
they said.: ' It is our will that there shall henceforth be no God. in Pakistan
and no Religion. Let Religion
and God both be ejected
from Pakistan and. a Constitution based on the purely economic
doctrine of Karl Marx be
framed ' and suppose they did all this against the will of the people and in
open defiance of. their views and sentiments. What would have happened in such a case ? The
- Assembly, if it had absolute and uncontrolled powers, could very w 11 impose
such a Constitution on Pakistan. What
could the people do ? What could be their remedy ?" And surprisingly enough the reply to it 'by
one of the learned Judges was "If the majority of the members
are for it that means
the people are for it." Comment on this reply is unnecessary beyond
saying that it overlooks the doctrine, which
is a fundamental doctrine in democracy, that the mere fact
that the majority of the members of a Legislature are in favour of a measure
does not necessarily mean that the
.people are for such measure. The second instance cited by Mr. Faiyaz Ali was precisely the instance where if the question arose in the United Kingdom
the King' would
exercise his reserve
powers of dissolution or of withholding assent. In the circumstances supposed, the Governor-General here will act in precisely
the same way,. namely, he will withhold
his assent from such legislation, not because he
represents the King but because he represents, the people of the Dominion and in such matters acts on
their behalf in the belief that his action will have their approval.
'
An instance may also be cited
from the history of the Constituent Assembly itself. It is alleged before us in an affidavit put in by the
attorney of the appellants that at the time the Constituent Assembly decided to repeal the Public and
Representative Offices (Disqualification) Act, 1 949, proceedings under that Act were contemplated against ten members
of the Constituent Assembly itself. The law repealing
the Act which
is said to have been passed in undue haste could have been attributed by the Governor-General to a
desire on the part of the Constituent Assembly to screen its own members from prosecution, and few people could have
objected if he had withheld his assent
from the repealing bill. It will, therefore, be seen that in this respect tha
Governor-General occupies a very important constitutional position. By withholding assent to an unpopular measure he cari
create a constitutional crisis of the first magnitude, and though eventually he
himself may have to go, he can in appropriate cases rivet the
attention of the country to the caprice, cupidity
or folly of the Legislature.
In the course of arguments before us, a question arose,
similar to the one mooted
before this, Court
in Khan Iflikhar Husain Khan of Mandot v. The Crown (1950-51 F C R 24=P
L D 1950 F C 15), namely, whether if
the Constituent Assembly passed a law, which was within its competence as the Federal Legislature, it could be held
to be ultra vires on the ground that it did not receive the assent of the Governor-General. The point
was not decided in that case, but Mr. Chundrigar appeared to suggest before us that is such a case because the
Constituent Assembly is a sovereign body,
the Court could . not inquire into the ultra vires of, any law purporting to
have been passed by it under
subsection (1) of section 8 of the Act of 1947. If Mr. Chundrigar's claim is
valid, does it not follow from it
that the Constituent Assembly ,can dispense with the necessity of all assent even in regard to laws which fall within
the Federal List merely by purporting to pass such laws in exercise of the powers conferred on it by subsection (1) of
section 8? The question whether a law falls within the Federal List or relates
to the constitution of the Dominion being one for the
Constituent Assembly .to determine
and not for the Courts to decide, the Assembly could at its will do away with the. necessity of assent
to all Federal legislation merely by not placing a bill before the Governor General for his assent.
For the foregoing reasons
I hold that so long as the provision in subsection (3) of section
6, giving full powers to the Governor-General to assent to any law of the Legislature of the Dominion
stands, every bill passed by the Legislature of the Dominion
which has the effect of amending the existing constitution as contained in the
Government of India Act and the Indian Independence Act must be presented for the assent of the
Governor-General, and this assent is as necessary to the validity of legislation as the law which requires
a document to be under
seal 'or registered. It is a formality which cannot be dispensed with except by a proper
amendment of the Constitution. In view of this it is wholly
unnecessary to go into the other issues,
and nothing said in this judgment is to be taken as an
expression of opinion on anyone of them.
INDEPENDENT DOMINION
I
now proceed to notice some of the incidents of an
independent dominion which
were referred to in the arguments before us by the
parties. These incidents are connected with allegiance, Royal Style and
Titles, nationality, assent to
legislation and Prerogatives.
INDEPENDENT
The words `independent dominion'
first received statutory recognition in the Act of 1947. The speakers in the House of Commons who took
part in the debates on the bill had different
conceptions of an independent dominion. There were also proposals
that these words be substituted by some more expressive words. Thus Mr. Godfrey Nicholson
suggested the amendment "two independent
States within the British Commonwealth of nations, hereinafter to be known for
the purposes of' this Act as the new Dominions", because he thought
the word "Dominion" was subject to several
misconceptions. Mr. Wilson Harris
supported Mr. Nicholson and said
"I think that we need the
word `Dominion' here and that it was a stroke of genius on the part of Lord Mountbatten to apply the possibility
of Dominion Status to the two halves of India. I cannot help thinking, however, that the term `Independent Dominion'
involves a certain contradiction. Dominions
as between themselves are interdependent and not independent. I would very much prefer the use of the words `autonomous
Dominions'. In the famous language of 1926, the Dominions are not subordinate one to another in any internal or
external affairs, but they are not entirely
independent. They do not stand completely apart from one another, indeed they
have the right to secede from the. Commonwealth in which case they would, achieve complete
independence. It seems to me the word `independent' ought to be used for
that status. It would be more
desirable to speak of autonomy in this case and to use the words `autonomous
Dominions' rather than `independent
Dominions'.
Replying to this criticism,.
the Prime Minister, Mr. Atlee, said :-
"With regard to the term `independent Dominions', I think you need the word Dominions here. We
.do understand what Dominion
Status means under the Statute
of Westminster. .Whatever
alteration there may be in the future in the Statute of Westminster,
that statute today does define this position. It does mean complete autonomy.
With regard to the word `independence', that again one may quarrel over, but one has to
consider both history and psychology in this matter and it is a fact that it is not generally realised
throughout the world, that although it is quite properly said that there is interdependence there is
complete independence in the Dominions from any control, whether from Whitehall .or from Parliament. That is the important point that needs to be stressed. It is not perhaps quite the same as if
this were being formed from some' country adjoining, which had never been in the position of being
under this Parliament and under Whitehall. I think that is what the- Indians really want to have
emphasised. I think they quite accept the position and they know the advantages of being in the
Dominions. People, who have long been under the tutelage of Whitehall and under the control of this Parliament, feel that
now, at last, they are independent of that control."
The essential characteristics
of an independent Dominion were rightly brought out by Mr. Atlee when he said that the independence of a
Dominion implied freedom from all control by the Government in London
and the British. Parliament. If the Government of the United
Kingdom has no right to interfere in the affairs
of a Dominion and the Legislature of that Dominion
can pass any law
that it likes, including the law relating to its own future constitution, and
the authority of the Parliament of
the United Kingdom to legislate for it comes to an end, we have a true
conception of the independence that was intended
to be conferred on the Dominions of India and Pakistan.
In this sense the Dominions. of Canada, Australia and New Zealand
cannot be said to be independent because under the Statute of
Westminster, their Legislatures are incompetent to amend their Constitution Acts. India and Pakistan, however,
could frame their own constitutions as independent countries and -entirely secede
from the Commonwealth.
DOMINION
ALLEGIANCE TO THE CROWN
But though independent in the .sense
just explained, Pakistan, is a Dominion
and therefore certain
incidents attach to it by reason of that status. The first feature that
is common to the Dominions which are members of the British
Commonwealth 'of Nations
is common allegiance to the Crown.
This common feature, as pointed out by Wade and Phillips at page 443 of
4th Edition of their Constitutional Law is the one legal
link which joins members of the Commonwealth (except India) and Empire, though it is no longer
regarded as indispensible for membership of the former. In the Commonwealth Declaration of April 1949
made by the Prime Ministers of the United Kingdom, Canada, Australia, New Zealand, South Africa, India, Pakistan
and Ceylon and the Canadian Secretary of State for External Affairs,
it was declared that their countries were united as members of the British
Commonwealth of Nations
and owed a common allegiance to the Crown
which - was also a symbol of
their free association. The Declaration was made on the occasion of receiving India as a member of the Commonwealth view of the new Republican Constitution she was about to adopt. In the resolutions of the
Imperial Conference of 1926, common allegiance to the Crown was stated to be one of the. bonds that
united the participating Dominions: This position received a recognition by the Statute of
Westminster, 1930, the preamble of which states that the Crown is the symbol of the free association of the members of the British Commonwealth of Nations and
that they are all united by, a
common allegiance to the Crown. Halsbury describes common allegiance to, the Crown as a common law
doctrine (Laws of England, 3rd Edition, Volume V, paragraph 1024). It is for this reason that the Statute of Westminster requires
that any alteration in the law touching
the succession to the Throne or the Royal Style and Titles must have the assent of the Parliaments of the Dominions as well as
the Parliament of the United Kingdom.
So important is the connection
of a common Crown and common allegiance that in the case of Canada, Australia and New Zealand, it
cannot be broken by local legislation, and General Smuts consistently maintained
that even the King himself could not with due regard to his duty assent to a measure
of a Dominion Parliament purporting to destroy the connection with the Crown. Writing
.in 1932, Keith
in his
Constitutional Law of the
British Dominions (page 61) thought that to effect a separation there would in law be necessary
an Imperial as well as a Dominion
measure .and that under the principle enunciated by the Statute of Westminster
the concurrence of the other Dominions would also be requisite. This relation is very different from the mere personal union between the United Kingdom
and Hanover where the connection could be, and was broken as a result of
the different laws of descent of the Crowns
of the two territories when Queen Victoria
succeeded to the throne in 1837. He says at page
62 of the book :-
"Closely connected with the question
of the common Crown is that ' of a common alligiance. The issue might rest, of course, on the old
decision in Calvin's case, after the union of the Crowns of England and Scotland in the person of
James I, that person born in Scotland after the union were natural
born in English
subjects, despite the absolutely distinct
character of the two kingdoms.
The same doctrine was
applied during the period of the union of the Crown of England with the Electorate '.of Hanover, Even were each of the Dominions to be regarded
as an absolutely distinct kingdom, the subjects of the King
therein would on . that doctrine be subjects in the United Kingdom".
These observations were of course
not applicable to the two Dominions created by the Indian Independence Act because each of them was declared
to be fully competent to secede. But so long ast either
of them remains a Dominion; assent to its legislation is necessary both under the common law doctrine and the statutory provision
in subsection (3) of section 6. So strict is this rule that even if a dominion intended to secede from
the Commonwealth and repudiate allegiance to the Crown, it could do so only by an extra-legal act. But if it intended
-to - proceed constitutionally such
secession would itself require the assent of the Queen or her representative,
or legislation by the Parliament of
the United Kingdom. Such. assent was given when Burma became independent under
the Burma .. Independence Act, 1947. And though in the case of India no such assent seems
to have been requested or given, the . . connection between India and
the United Kingdom had to be .
recognised by a statute of the British Parliament, India (Consequential
Provision) Act, 1949, to retain India
as a
member of the Commonwealth.
ROYAL STYLE
AND TITLES
Though by subsection (2) of
section 7 of the Act of 1947 the words `Indiae Imperator' and the words `Emperor of India' were omitted from
the Royal Style and. Titles by a Royal Proclamation under the Great Seal of the Realm, the words "of Great
Britian, Ireland and British Dominions beyond the Seas, Queen" continued to be used. In December, 1952, after consultation between the Governments of members of the Commonwealth it was agreed
that ' in place of the existing
Titles which had ceased to be, fully appropriate each member should adopt for its own purpose a form
of Title suitable to its
particular circumstances but including a substantial common element. A separate
Title has accordingly been adopted for use in the United Kingdom
(including the territories for whose foreign
relations the United
Kingdom Government is responsible). This Title, which was adopted in pursuance of section
1 of the Royal Titles Act, 1953 (1 and 2 Eliz. 2 c. 9), is "Elizabeth the Second, by the Grace of God of the United
Kingdom of Great Britain and Northern
Ireland and of Her other Realms and Territories, Queen, Head of the
Commonwealth, Defender of the
Faith". In Canada, Australia and New Zealand, the Title adopted, in each
case by a local enactment, is . "Elizabeth the Second, by the Grace of God of the United Kingdom
(Canada or Australia
of New Zealand)
and Held other Realms and Territories, Head of the Commonwealth". In South
Africa the Title adopted by the Royal Style and Titles Act, 1953 (local) is "Elizabeth the
.Second, Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth". In Ceylon the Title is the same as for South Africa
with substitution of `Ceylon' for `South Africa'. A few days before her
Coronation, the Queen received the Prime Ministers of the United Kingdom,
Canada, Australia, New Zealand and Ceylon who submitted for her signature the proclamations relating to the Royal Style and Titles for
their countries. In Pakistan, the Title signed
by the Governor-General, and published simultaneously in the Commonwealth
capitals on the 29th May, 1953, was
"Elizabeth the Second, Queen of the United Kingdom and of Her. other Realms
and Territories, Head of the Commonwealth". It should be noted that under subsection (4) of section 6 of the Act of 1947 no Act. of the' United Kingdom
passed on or after the appointed day -was, to extend
or be deemed to extend
to the Dominion of Pakistan
as a part of the law of the Dominion unless it was extended thereto
by a law of the Legislature of the Dominion. No such law adopting the Royal Title was passed by the Legislature of
the Dominion and the Title was published
by a proclamation signed by the Governor-General. The words `Her other Realms
-and Territories' in the Title were evidently considered to embrace
Pakistan because on the
occasion of the 'Coronation of Her Majesty
on the 2nd June, 1953, the oath that was administered to her by the Archbishop. of Canterbury was
"Will you solemnly promise
and swear to govern the peoples of the United Kingdom of Great Britian and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa,
Pakistan and Ceylon and of your possessions and the other Territories
to any of them belonging or pertaining, according
to their respective laws and customs
?"
The commission that was issued
by His Majesty's command appointing the Governor-General of Pakistan described His Majesty'as "George VI, by the Grace of God of Great Britian
and the British
Dominions beyond the Seas, King, Defender of the Faith", and the oath that the Governor-General takes
is :-
"I do solemnly affirm true faith and allegiance to the
Constitution of Pakistan as by
Law established and I will be
faithful to His Majesty (or Her Majesty), his heirs and successors in the Office of
the Governor-General of Pakistan. "
The point sought to be made by
Mr. Chundrigar is that in this oath the allegiance that is sworn is to the Constitution of Pakistan and not to the Crown ; but if allegiance to the Crown
is a necessary incident
of the Constitution of Pakistan, the allegiance to that Constitution obviously
implies allegiance to the Crown. Further it - does not make the slightest
difference whether the Queen is
described as the Queen of Pakistan
or the Head of the Commonwealth of which Pakistan is a member. ,
NATIONALITY
From the common law doctrine of common allegiance it must follow
that those who owe allegiance to the same Crown or common subjects. In United Kingdom law,
citizens of the United Kingdom and
the Colonies and citizens of other Commonwealth countries, including Pakistan,
are British subjects and Commonwealth citizens,
and by section 2 of the Pakistan
Citizenship Act, 1951, read with section 1 of the British Nationality
Act, 1948, a Commonwealth citizen, as for instance a citizen of Pakistan, is a British subject. Thus the second
incident of Pakistan being a Dominion is that
her citizens are for international purposes British subjects. Under section
262, subsection (4) of the adapted
Government of India Act, no person who is not a British subject is eligible to
hold any office under the Crown in
Pakistan, and under subsection (1) of section 298 of that Act no subject of His Majesty domiciled in
Pakistan shall, on grounds only of religion, place of birth, descent,
colour or any of them be
ineligible for office under the
Crown in Pakistan. '
PREROGATIVE
The Governor-General of
Pakistan is appointed by the King or Queen and. represents him or her for-the purposes of the Government of the
Dominion (section 5 of the Indian Independence Act). The authority of the representative of the King extends to the
exercise of the royal prerogative' in so
far as it is applicable to the internal affairs of the Member, State or
Province, even without express
delegation, subject to any contrary statutory or constitutional provisions. In
Canada and the Union of South Africa
the full external prerogatives are exercisable by the Governor-General, who, is invariably invested with the
duties of Commander-in-Chief of the armed forces, is authorised to appoint Judges, Ministers and other Crown
servants, to summon, prorogue and dissolve
Parliament, assent to legislation, and grant pardons oil ministerial advice.
Mr. Mahmud Ali's contention that in
Pakistan the Governor-General does not exercise any of the prerogatives of the King is clearly
wrong because here, even under the adapted
Act of 1935, the Governor-General appoints -the Governors of . Provinces, the Commanders-in-Chief of the Pakistan
Army, Royal Pakistan
Navy and the Royal Pakistan
Air Force, and Judges of the Federal
Court and the High Courts.
Ambassadors to foreign
countries are accredited and ambassadors from foreign
countries are received by, the Governor-General. The defence and civil services
in Pakistan are services of the Crown and
appointments to them are made by. the Governor-General while in the Provinces the appointments to the
services of the - Province are made by the Governors. In defence services 'the Governor General
has the power to
grant commissions. Every person who is a member of the Civil Service of the
Crown in Pakistan or holds any post under the. Crown holds office
during His Majesty's pleasure. And assent to - all legislation under the adapted Act of 1935 is given in His Majesty's name, in the
case of bills of the Federal. Legislature by the Governor General, and in the case of Provincial
bills by the Governor: Criminal prosecutions are initiated and conducted in the name of the Crown. In
the face of these constitutional provisions I do ,not see how Mr. Mahmud Ali finds it possible to assert that in
Pakistan the Royal Prerogative is not exercised by the
Governor-General.
I
am conscious that in thus interpreting the Constitution of Pakistan and emphasising the, incidents that attach to it as a Dominion I am
going against a layman's idea of an "independent dominion", the implications of which were not fully
understood even by the wise and experienced members of the Constituent Assembly, though some of them were prominent
members of the legal profession. But- I am quite clear in my
conscience what the duty of a Judge in such cases is. That duty is rightly
to. expound the law in complete indifference to any popular
reaction. The status .of which I have described the main
incidents was accepted by our leaders under a gentlemen's agreement which received statutory
recognition in the Act of 1947. If they had been so minded, they need not have accepted that status
and like Burma could have complete independence. And if the legal incidents of association with the Commonwealth under a common head hurt their pride
or were offensive to thier susceptibilities, and the Constituent
Assembly, shared that feeling, it could
have done away with all these so-called indicia of inferiority within a day. It
is not that the Constituent Assembly
was unaware of these incidents. I had drawn their attention to them by my judgment in the Full Bench case of Sarfraz
Khan v. The Crown (1950 P .L R (Lah.) 658=P L D 1950 Lah. 384) as far back as May 1950. But the only action
taken by the Assembly on that judgment
was to delete the words "in His Majesty's name" from subsection (3)
of section 6 of the Act of 1947 and those provisions of the adapted
Act of 1935 where these
words occurred in respect of the Governor-General's assent to
bills. This tinkering with the provisional constitution merely showed that the Constituent Assembly was
unwilling to take big decisions, and they can hardly have any grievance if, on the present occasion,
that position is restated to them. In this connection it will be interesting to mention here the history of an
incident from a High Court file. In 1951 some one appears to have sent to the Prime Minister
of Pakistan a High Court Notice which began with the words "George VI, by the
Grace of God of Great Britain and Northern Ireland and of the British
Dominions beyond the Seas, King, Defender of the Faith". The Prime Minister. appears to have been surprised at the heading
of this Notice and the Cabinet Secretariat, through the Secretary
to the Governor, Punjab, drew the attention of the High Court to this
Notice by a letter in which the view
was expressed that while the inclusion of the name and Titles of the King in
the Notice was constitutionally and legally correct, it did not appear to be legally necessary and was liable to misinterpretation. The letter also communicated the Prime
Minister's desire to omit these words from
the Court Notices if there was no objection. The matter was discussed in a
meeting of the Judges of the Lahore
High Court when I was the Chief Justice of that Court. In reply, the High Court pointed out that the Letters Patent
Seal of the Court also contained the Royal Arms and suggested that the Seal of the Court be changed. That reply went
from the High Court on the 19th March,
1952, but since. an amendment of the Letters Patent, however simple it might
appear to be, involves some study and
thought, the matter is still under consideration, and the High Court writs, though they no longer run in the
name of "Elizabeth the Second, Queen of the United Kingdom and of her other
Realms and Territories, Head of the Commonwealth", continue
to issue under
a seal containing the Royal
Coat of Arms.