TOL. I l l ] CALCUTTA SEEIES.

session during the time being witli the co!is< nfe of the true owiter, JB7T
and the other, when tiie possess iofi is consi.*teut with the m art-
-J J -r 1 I- • , • Ml . I A?r
gage cleea. 1 beheve it to be im|)Ossiu!e aud agauisl; tiie s p in t lss«n.vEST.
of the A ct by any convejaruiiiig device to give alien for money Es run*
advanced upon goods previously the pm perty of the bank- 'umKu,
I'upt, and returned to or permitted to remain with him. The
power of so borrowing money would be much more dniigerous
than that of raising money by sales at an undervahie equi­
valent to the amount which would be advanced t>u pledg»\
Such sales would, in many cases, be strong evidence of criminal
intention in the original purchaser of the goods, or at any rate
would lead to speedy discovery.
Application refused.

A ttorney for Dwarkanath M itter : Biihoo P. C, Mookerjee.

A ttorney for the Official Assignee: Messrs. Orr and Harris,

FULL B*ENCH.

B efore S ir Rickard Garth, K t, C hief Jmtice^ Mr. Justice Kemp, 3fr. Jm iice
Jackson, Mr. Jm tice MacpMr.wu, M r. Justice Markby, M r, Justice Ponii-
fe x , and Mr. Justice Ainslie.

T H E EM PRESS a. B U E A H ai^d BOOK SIKGH.*

il/a-sA 26,
In the m a t tes of t h b P etition of BUR.AH a.n b BOOK SINGH. ~

Jurisdiction o f Ih'gh Court— A ct V I o f \U 5~ ~A ct X X I I o f 18S9, #. 9—24 ^

25 Vist., c. 67, 8. -22; c. 104, ss. 9, II, and 1 3 - 3 4' 4 W ill IV , c. 85—
16 Sr 17 Viet, c. 95—17 ^ 18 Viet., c. 77-—Delegation^ Power of.

B y Act X X t l of 1869, certain districts were removed from the j»ris<3iction

o f the High Court, asirt by s. 5 the admiiiistratlon o f G vi} ntjd Justics
was Tested in sacb o(]icBi-s jis i.lic LleuiOiiuist-liovcfiKj!' o f Bengal sh ould
appoint. B y s. 9 the ijicut«jniir.L-(Ic)Vf3ni<tr was esitp-'vorotl to extend all or
any of tbe provisions of tlie Act in t!ie Oossyuh aisd Jriitopali H;Hs. By a
notificatiou in the Calcutta Gazette of 4th October, 187], the Lieutenant-
Governor extended tKe provieioas o f the A ct to the Cossjnh and Jynteeah

Criminal Appeal, No. 482 of 1876, against an order of Col. Bivor, Deputy
Commissioner of SliiUong, dated the 24tb of April, 1876.
04 TUB INDIAN LAW REPORTS, [VOL. III.

1877 Hills, and directed thafc the Comraisaioiier of Assam should exercise the
E m press powers of the High Court in the Civil and Criminal cases triable In tlie Courts
Bupvhand 0^*that district.The two prisoners were tried for murder in April, 1876, and
B ook S in g ii. were on conviction sentenced by the Chief Commissioner of Assam to trans-
In thk portation for life. On appeal by the prisoners to tlie High Court, held by
MATjKiiOF the maiority of a Full Bench (G arth , C.J., M acpherson and P o k tife x , JJ.,
THK I’KTITIOSr . . . > ’
OF HiiiiAii dissenting), that the High. Court had jurisdiction to entertain the appeal, and
such jurisdiction was not taken awny by Act X X I I of 1869.
P er Curiam,—The Governor-General in Council had power by legislation
to remove the districts fx’om the jurisdiction of the High Court.
P er J a ck so n , A i n s l i e , and M a r k h y , J . J . ( K e m p , J . , concun-ing).—The
Governor-General in Council had no power to delegate his legislative functions
to the Lieutenant-Governor of Bengal in the way he had done in Act X X I I
o f 1869. The power of delegation cannot be considered as validated by any
long course of practice, nor as sanct.ioned by the' tacit recognition of Parlia­
ment : Act X X I I of 1869 is therefore so fiir invalid.
P er M a c p h e k s o n , J. ( P o n t i f e x , J., concurring).— Such delegation is no­
where expressly prohibited, and does not bring the A ct under any o f the res­
trictive pro’s'isions of the Indian Council’s Act.
P e r G a k t h , C,J., and M a c p h e r s o n , J. ( P o n t i f e s J ., concurring).— The
power of delegation now questioned 4ad been exercised in many cases for a
series of years previous to the passing of the Indian Council’s Act, and that
A ct (the framei's of which must have been cognizant of such course of prac­
tice) must be taken as impliedly approving of and ’sanctioning such practice,
which it would otherwise have declared illegal.
P e r G a r t h , C.J., J a c k s o n , M a r k b y , and A i n s l i e , J J . ( K e m p , J., con-
curring\—The High Court has power to question the validity of the
legislative acts of the Governor-General in Council.
P er M a c p h e r s o n , J , ( P ohtijpex , J., concurring).:—T he High Court has
no such power if satisfied that the act is not within any o f the prohibitions of
the Indian Council’s Act. ,*

" T w o prisoners, Burah and Book Singh, were convicted of

m urder by the Deputy Commissioner of the Cossyahand Jyiiteeah
H ills, and were sentenced to death. On the 23rd of A pril, 1876,
the sentence was commuted to transportation for life by the Chief
Commissipner of Assam. On the 9th of J u ly , 1876, the officer
in charge of the K am rup jail forwarded to the H igh C ourt a
petition of appeal from the prisoners. The appeal came on for
lieai’ing before M arkby and Ainslie, J J . , who referred to a
F u ll Bench the question whether the H igh C ourt had any
power to entertaio these applications.' ^
O n the 12th of September, 1874, the reference came on for
VOL. IIL] CALCUTTA SEEIES.

hearing, and was argued by the Legal Rememhrmimr (U r. H. i"77

Bell) on behalf of tlie Bengal Goverismesit, before Sir H.
Gartlij C .J., Kempj Maopljersoii, M ark b j, ainl Aiiislie, J J .
Ou tlie 2ud of F ebruary, at tlie instance of the Gavei'finieiit —-
of In d ia ami before the jiulgment was delivered, the point was MvirKiiiiF
1 Tj£r: I'f'.Tri'MS
re-argued.
^ \\e Adoocatc-General^ offg. {M.V. th e StmuUn^ Ctnm-
s d (M r. K em tedy\ and the Legal Remembrancer (Mr, Jl, Bell)
for the Crown.
Mr. Phillips for the prisoners.
The Advocate-General.— The validity of s. 9, Aot X X I I
of 1869, is first questioned. There is a further question
as to whether the Groveriior-General ia Council can affect
the jurisdiction of the H i^h Court. The latter point ia
concluded by Queen v. Ileares (1). [Ga-IITH, G .J.— Con­
fine yourself to the invalidity of s. 9. Mr. Phillips.—
V. Meares ( I ) does not cover _t!ie point raised here. T hat
case only decides as to the power to subject British subjects
to another Court. M a r k e t , J . —I t does not go so far as to
say that the Governor-General in Council may entirely abolish
the jurisdiction of the H igh Court.] 3 & 4 W ill. lY , c. 85,
s. 43, gives full power to legislate conceminf anything except
certain m atters specified; s. 51 enacts that nothing in the A ct
shall aflect the right of Parliam ent to legislate for India, and
expressly reserves to P arliam ent control over the acts and pro­
ceedings of the G overnor-General in Council, and the better,
to enable that body to exercise the powers reserved^ reqiiirt,!?
that all laws and regulations made by the Governor-General
in Council shall be laid before Parliam ent. There, therefore,
exists a complete check over improper legislation. The ad~
minifsf.rative power to establish Courts has existed unquestioned
witii the exce]>tion of a dictum thrown out by Sir h . Peel in
the case of Biddle v, Tarineij Churn Banerjee (2), the broad
proposition of which is open to question. M any Acts have been
passed which it is provided ehoahl come into operation ob the
notification of some person to whom discretion is g i v e n b r i n g

(Ij 14 B, L. l i , 106. (3, 1 J a y , & Bell, 39*1'^ e © p, 404,

66 THE INDfAK LAW REPORTS. [VOL. III.

1877 the A cts into force. [M a c ph e r so n , J . — T h at is a different

EaiiMtEss point.] I f it be adm itted th at the G overnor-General in Council
Buuah and has power to depute authority to the Lieutenant-G rovernor to
B ook S i n o h . , , , ,, „ i ,i tt- i
---- decbire wlien certain A cts shall come into lorce, then the H igh
JVIATTlfil! OP Court has no jurisdiction to entertain this appeal. The
™0F G o v e r n o r - G r e n e r a l in Council can say th at au A ct shall come
into force on the happening of a certain contingency, say the
death of a person. [J a c k so n t, J ,— Suppose it be when the
province shall have arrived at a certain stage of civilization ?
Then the word of the L ieutenant-G overnor can be taken. I f
there be no objection to the principle th at an A ct shall come
into force on a date to be named by the L ieutenant-G overnors
then s. 9 would have validity with reference to s. 4. B y
A ct Y i n of 1859, the L ocal G overnm ent had power assigned
to it to extend the provisions of th at A ct to any place. T he
intention of the G overnm ent is, that laws and regulations
applicable in certain places, being inapplicable in other districts,
shall not there have any force until those districts are prepared
to receive them. This has actuality been done with respect to
the Garo Hills. [ G a r t h , C .J .— I do not agree with you.
T he G overnor-G eneral in Council had not come to any con­
clusion as to the J jn te e a h H ills, and had delegated his authority
, to the L ieutenant-G overnor to come to a decision.] T he
argum ent now is as to the intention of the legislature. The
G overnor-G eneral in Council has th e power to say th a t an
A ct shall come into operation when the Local G overnm ent
shall d ire c t; see A ct V I I I of 1859, ss. 387, 388. T he H igh
^ o u r t has not the power to try w hether or not th a t power has
been rightly exercised; see Sedgwick on S tatu to ry and Cou-
stitutional Law , p. 137. T he A m erican books refer to legis­
latu re with far more lim ited power than th a t of the In d ian
legislature. In the Bhow nuggur case Damodar Gordhan v.
Deoram K a n ji (1) their Lordships of the P riv y Council would
not allow the political m atters (the policy of a m easure) to be
argued. The H igh C ourt has no coucern with political ques­
t i o n s . T h e question whether or n o t a C ourt has been rightly.

tl) I. L. R., 1 Bora., 367 5 3. C„ L. E,, 3 L A., 102.

VOL. IIL] CALCUI’TA SERIES. gy

reconstructed cannot arise before the H igh C ourt. T he juris- 1877

diction having beetv once taken away, ceases to exist. By 16 & Espbksj?
17 V ie t, c. 95, ss. 19 and 29, aiul 24 & 25 Tict.j c. 67, s. 22, ^vR.\n
two things are provided,— the power to legislate and that
the. laws should be made iu Council. [ G a r t h , C. J . —I f the
power given is to make lawa in Council only, where would be the
m e of that restriction if the Governor-General is at liberty
to say that any one in Bengal may have the same pow er?]
The Governor-General in Council could do so. B ut the ques­
tion does not arise, as it is not to any one to whom he delegates
the authority. Although, there is a restriction placed, on the
subject of legislation, there is no restriction as to the mode of
making the legislation operative. I f Parliam ent considers it
convenient to delegate authority to adminisfcrjitive officers to
carry out measures, why may not the Governor-General in
Council do so? There is the same authority with respect to
unexcepted subjects as there is iu Parliam ent. [G a r t h , C .J.
— H is power being derivative, the Governor-General in Council
has not as much power as Parliam ent.] Discretion is given to
the L ord Lieutenant of Ireland. Is it a bad law to say th at a
person of competent capacity shall decide a certain point? Is
it a bad law to appoint a law officer of tiie Crown an arbitrator,
when there are Common Law Courts and the House of Lords
to which the suitor could go ? [ M a r k b t , J . — Power deputed
to the Lord L ieutenant might be said to be uiiconstitutional
delegation, but no C ourt of law could question it. The more
precise question would arise, whether the delegation was
ultra vires ? The difference is that which exists between a
sovereign legislature and a derivative legislature.] The ques­
tion m ight be as to the subject, not as to the mode of legisla­
tion. [G a r t h , C .J .—B u t can the powers given to the
G overnor-General in Council alone be transferred t] The
powers are not transferred j all that there is done is th a t
provision is made how those powers can be brought into
force. [G a e t h , G .J.—I f the Lieutenant-G overnor were not to
notify any date, there would be no law, criminal or civiI.J
iPlie word ' may ^ here does not leave option to the L ieutenant-
Governor^ By the wording, the Lieifteuaut-G overaor is bouud
$8 THE INDIAN LAW REPORTS. [VOL. III.

1^7__ to extend tlie Act, but within an unspecified time. H aving pro-
Emphkss Yided law on a certain subject, the A ct gave povrer to the Lieu-
ButiAH AND tenant-G-overnor to say when it was to come into force. There la
B ook fjINGH. ,. . . mi • i
— 110 limitation as to mmistenal ciuties, ih e time when a tax
In
MATTtfluop shall be imposed is not defined in an Act, nor the mode of oper-
™op ation, nor what kind of a horse, or what kind of a cart, shall be
taxed. So long as Governor-General in Council keeps within the
subjects concerning which he is allowed to legislate, there can
be a valid delegation of authority. A sub-agent can bind the
jiriucipal; Story on Agency, 14, Rossiter v. Trafalgar L ife
Assurance Association (1), Quebec and Richmond R ailw ay
Company v. Quinn (2). M atters wrongly decided and illogically
stated will be maintained if the contrary would disturb a settled
state of affairs—Dnmpoi'^s case (S).
There are a number of Acts passed since 1848 under which
there has been a delegation of authority. Among them are
the following: Acts X X I I of 1855 ; X I I I of 1859; X X V
of 1861; V I, X IV , and X I X of 1863; X X I I of 1864; X I V
of 1865 ; X X of 1866; X X I I I of 1867. See Maxwell on
Statutes, p. 166.

The Standing Counsel.— Act X I V of 1874 repeals A ct X X I I

of 1869. [MACPmsRSON, J .— That A ct is of no effect, see s. 3.
Mr. Phillips.—If the A ct ia repealed, there is no further necessity
to argue.] 24 & 25 y io t., c. 67 (the Indian Councils’ A ct),
conferred powers on the entirely new legislatures of M adras
-and Bombay, When this A ct was passed, former restrictions
were got rid of. 16 & 17 Viet., c. 95, then in force, conferred
on the legislature, after making provision for the appointment
of certain additioiml members, powers of making laws and
regulations. 24 & 25 Viet., c. 67, shows u desire to extend the
powers of the legislatui-e. T hat which it can, and th at which
it cannot do, are strictly defined. The fact that powers given
are expressly limited, shows that they would otherwise be u n ­
limited. W hen Parliament passed this Act, a long series
passed by the Governor-General was m existence. The

(1) 27 Beav.,^377. (2) 12 Moore’s F. 0 ., 232.

(3) 1 Sifiith’s L. 0., 4L, 7th. ed.
VOL. ItL] CALCUTTA SKIiritlS. gg

o f eiiiicfmeiits bears verj strongly oil tlie constroctiou of tlsis Act. 1S77
Parliam ent did wot appear to take away tlie pftwer wiiick hatl JiMiy'S’i
b e e n , rightly or wrongly, professeilly exercised. The presiimp- Bctutr asb
tion is, that Parliament was cognizant of all conceniiug which —'
it legislated. There is then that which amounls to legisjlative ar,iTTBB*tjf
SJiuction. The Grovemor-General in Gouiicil may uot have power bhuh***^
to give away legislati^'epowersj but it has power to make a
The law is to make tlie Lieutenaut-Go’veruov do a certain act.
H e is by statute an executive officer, ami can be compelled so to
act. [ G a r t h , C. J . —Tiien what becomes (sfthe discretion of the
Lieuteiiaiit-G-rtveriioi'?] I f there is an outbreak, say on the P un­
jab frontier, the Grovernor-Geueral has power to suspend all laws
and leave districts at, the will of a General. True that Tfoultl be
in a case of emergency, but caw a Court of hiw examine into mo­
tive ? Unless a construction cau bear the strain botli wayg, it ia
not the true oue. Parliam ent,' in * the0regular course of its leijis-
v2
lation, confers the duty on others to make bye-laws, or to fix a
time afc whicli a particular Act sliall come into force. Parliament,
lias never passed a single word of censure on the Indian legis­
lature for having adopted tlie same practice. By 32 & 33
Viet., c. i l 5 , the Home Secretary in England was entrusted
with the power to license hackney carriages, and to fix a scule
of fares, a power which it has bean deeiiled \^as validly confer­
red : 'Bocldng v. Jones (Ij. The legislature is not to contem­
plate tiie remote contingency that power may be conferred on
an incapable person, but must-assume that public (officers will do
their duty. Take a municipality as an ihiistration: there are-
certain acts wl)ic]i would be accounted offences if committetl
within the boundariaa, but not sO if without the bouMdarie#!. It'
a general municipal h w were passed, itiid it was provided it
should only apply to certain places mentiivued in ft schedtde to
that Act, could not a provision be made that the Act be afier»
wards extended to other places as they became ready for it ? Acts
of this kind were passed during the mutirry while Sir B. Peacock
was legal member of Council : see Acts V I l l of 1S57 and X IV
of 1867. [J a ck so n , J .— The matiHy was !U.i emergeucv.] No

(1) L. 11., G G. r ., 20, jit p. 35.

10
70 THE INDIAN LAW IIBPOIITS. [VOL. 111..

1877 A ct ia passed unless there is a necessity for it, and these were
Emprkss passed very shortly before tlie passing of the In d ian Councils’
BaitAH AND A c t; see A cts X X V I I I of 1857 ; V I and X X of 1858 ; X X of
B ook: S in g -ji , ^ , ,
— 1869; 19 & 20 V iet., c. 36. T he Peace P reservation (^Ireland)
ItlATTEUO F A ct coutained cevtaiu sections of 11 & 12 V iet., c. 2, giving
oi.' iioK4i i ' power to the Lord L ieu ten an t to proclaim certain districts. The
A ct continued in force until 1870, when another A ct was
passed. The m atter was frequently agitated, and the points well
known to the legislature. I f there is injustice done under an
A ct of the legislature, indemnity m ight be afforded. N ecessity
or emergency for a m easure cannot come into question. I t is
a question of state to be determ ined by the L egislative Council
alone. I f the H igh C ourt can question the policy of an A ct
of the legislature, then it can be questioned by any M uusif’s
Court,
The H igh C ourt sits under a power * conferred on Hei*
M ajesty by P arliam en t to establish i t ; th ere is a delega­
tion of power when Courts of any description change or
modify the practice of pleading. U nder w hat au th o rity are
the rules issued ? T here is no authority contained in the
C harter authorizing Ju d g e s to issue rules. [GrAiiTH, C. J . —
There must be power given to Ju d g e s to make rules to carry
on work and for i?bw Courts.] B u t a new C ourt m ust follow
the common law in its procedure. I n E q u ity Courts in E ngland
it is considered necessary to give statutory power. [GrAiiTH,
C. J . — The old system of pleading had become the law of the
land.J The practice of this C o u rt as of the Q ueen’s Bench
is" a law of the C ourt. W h eu the legislature has once com­
manded, the question of em ergency cannot be q u estio n ed :
FhilHps V. E yre (1). W hen w ar is imminent, the G overnm ent
is charged by the very necessities of the case to take measui'es.
T he executive is charged with extended powers. No respou-i
sibility is taken away if a m inister act iu a m anner which, under
ordinary oircumstaudes, would be ille g a l; he at once becomes
responsible to the tribil'^ial of the country. T he authority given
to the Lieutenant-G ove\’nor was not delegated au th o rity , b u t

(1) L. H., 4 Q, l|., 225^ S. 0. on appeal, 6 id., 1.

VOL. III.] CALCUTTA. SERIES, 71

derivative. By A ct X X X V I I of 1855, tlie Sontlml 3?er-___J_^7

gun null’s Act:/’ the jurisdiction of tlie Sadder Court was taken Bapr.ras
aw aj. The following case and A cts were also quoted : Leversmi
■?'. 0,uee7i (1); and A cts X IY , X X I I , and X X I I I of 3 8 3 6 ;'
X V I and X X V I of 1837^ as to the course of practice. sj.^xieuop
XIIB
OF ISriiAH
M r. Phillips for th e prisoners.— The questions to be argued
a re: (I) Has the power been vulidly deputed to the L ieutecant-
Goveruor, i. e., is the Lieutenant-G overnor validly authorized ?
(2) H as the G overnor-General iu Council the power which he
here delegates? Unless the L ieutenant-G overnor has been
authorized by • the Im perial legislature, he has nofc been
validly authorized. Parliam ent has shown, by giving express
powers, not only that the power of the Governor-General
in Council is strictly limited by the Acts, but; that the power of
delegation claimed had not been g iv en ; see 24 & 25 Viet..,
0. 67; S. 6 (3 & 4 W ill. IV , c. 85, s. 70) 8, 17, 18, 2 3 ;
24 & 25 Viet., c. 104, s. 18; 28 Viet., c, 15, s. 5. Parliaraenfc
has not created a legislature like itself; it has only given
certain persons a certain limited power of making laws. Even
a Colonial legislature like itself has not all its powers as incident,
and in fact has only the powers conferred : Doyle v. Falconer (2);
Fenton v. Ilam pion f3). [ G a r t h , C. J .~ l % e cases decide that
inherent privileges were not vested, but assume supreme legis­
lative power.] T rue, but of a limited kind. Ifc is not contend­
ed th a t within limits it has not supreme power. I t lies on
theTJroWixto show whafe power is vested in’i the legislative
assembly. Crown is, tliAt.
since the English Parliam ent delega Governor-
G eneral in Council has the same Jjieute-
nant-Governor also will have power * authority
given to him to another* S. 0^ I n d l uucils’ Act, gives
eertain powers; it shows that tlie Cotjncii those powers
Cind that a section giving tliem was tlujughi^*^ necessary, and
this expressly excepts the making of laws regulations. 'Ihe
powei^ in a legislature with affirmative owers, is not beyond

( 0 L. B ,, 4 Q. B., 394. \ ^ ^28

(3) n Moore’s P, (* 347.
72 T IIK IN D IA N LAW R E P 0 R T 8 . [ Y O L .l t l .

1877 tliat. wliiclj IS expressly given ; as an incidenf, tine power to tlie

EMPUKas Lieiiteiiaiit-G overnor to extend an A ct is not included. A
Bur.'.h amb power derived from Im perial P arliam ent is lim ited by the Act
giving power. Therefore, unless some au thority be shown, the
MArrKi™oy Legislative Council has not the power claimed by it. The
BoTwu™ Lieiitenaiit-G overnor has not the power to call a dead A ct
into life. The L ieutenant-G overnor is deputed to exercise
legislative discretiou to the extent of seeing w hether or nofc
this law, or which portion of it, .should be applied; The
wisdom or propriety of a m easure is not questioned^ b u t the
authority of the G overnor-G eneral in C o u n cil: The E nglish
Parliam ent itself was not at one time su p rem e: Sedgwick on
S tatutory and Constitutional L aw , p. 123. I t is the G overnor-
G eneral in Council who has authority to m ake laws and
regulations, but here it is not the G overnor-G eneral in Council
who has been legislating. I t is the L ieutenant-G overnor who
has exercised legislative functions. M inisterial functions can
be distinguished from legislative functions, which cousist- in the
legislative consideration of w hat is necessary- T he G overnor-
G eneral in Council has deprived himself of this power, aJuI has
conferred it on the L ieutenant-G overnor. Ju risd ictio n existed in
the Supreme C ourt which was transferred to the H ig h Court.
T hen by an o rd e ro f the L ieutenant-G overnor the whole ju ris­
diction of this C ourt may be withdraw n, leaving the learned
J udges drawing tlieif salaries, but, as uouentities. T h ere are
consequences as serious in holding this to be a valid A ct as
there may be in holding ic to be invalid.
Jtirisdiction G overnor-
G eneral could 1 ay that jurisdiction.] iThe greater
his power, the i. .ssary to secure the exercise of it by
himself. The B which was created by the Same
power, and which i. jterm ine w hether lie has validly abolished
all law, cannot be ab ished by him. A bsence of express con­
demnation caniiot bfe construed as sanction by P arliam en t of
an illegal cause. Tl^e P arliam ent is presutned to have befor©
i t only their own st^ttutes in p a ri m aterid — M axw ell on.
S tatutes, pp. 27 and 28 ^ but not all the In d ian A cts which sh^.w
excess of |)ower. * No ^case goes as far as is required. A s t8
VOL. III.] CALCUTTA SERII5B. 73

Leverson 7 . %ueen (1) see tlie report, p. 404. T his woiilil give 1877
greater force to tbe user tluiii to a pream ble: M arket ilarbaro
Trustees v. The Kettering Highway Board (2), irzhon v. B?!kah asi*
Knuhley (3). This A ct, X .X II of 1869, cannot be upheld at -i-
all, unless the whole is Yalld. The Civil Procedure Code was mattIuof
hastened as to its operation with respect to provisioiis which
were to have come into force. The general municipal enactment
would merely bring more persons^ in to the community, the law
existing all the while.
T he Stmiding Counsel iu reply.— Tlie Governor-General in
Council cau take away the jurisdiction of tlie H igh Court, niid
can create a jurisdiction identical to th at taken away. [ M a e k b t ,
J.-r-Theii the H igh Court of Madras might have conferred on ifc
jurisdiction over the Jyuteeah and Cossyah H ills.} I t is prohibit­
ed by the provisions of an A ct which it cannot touch by express
proviaion; see 24 & 25 Yicfc., c. 67, s. 33. [ G a.iit h , C. J . —
Some members of fclie legishiture might think it necessary to-
constitute new Courts more subordinate to the legislature than
they are now.] No g reat or-JjiglL-^power can be conferred
w ithout opportunity of abuse, but thfe c7ie?jfe~'woirM~be~'l‘apid
enough to stop injury. I f the legislature of a colony beiug! a
supreme legislature thought fit to pass a law enabling to coini
for contempt, it could do so. [M r. E vans as amicus ct
referred to R u tte r v. Chapman (4), and G rant on Corpora*
p. 80.]
Cur. adv

The following judgm ents were delivered by the F ull i

M a u k b t , J . — Two persons, Burah and Book Sing
been convicted on a charge of murder by the D eputy (
sioner o f the Cossyali and Jynteeah H ills and sente
death. The sentence was commuted to transportation
by the Chief Commissioner of Assam on the 23rd A pril,
On the 9(h J u ly , 1876, the officer in charge of the Is
jidl forwarded to this C<uirt petitions of appeal from
prisoners, uiiaccom[)auied by copies of *hejiidgm eiit.
(1) L. R.» 4 Q. B., 394. (3) 7 East, 135.
m L. a , 8 ft. B., 308.
74 THE INDIAN LAW REPORTS. [VOL. HI.

ii^77 The first question wliich arises in the case is, whether the
Empi!kss H igh Court has any power to entertain these applications; and
B l-u a h AND this question is one of so much importance th at it has been
B o o k S in g h . ^
referred to a F u ll Beiich^ and Jms been on two occasions very
I nthk f 17 1
MA TTicii OF luliy argued.
oli-BuitAH The Cossyah and Jynteeah H ills comprise a considerable
tract of country on the eastern frontier of Bengal, and they
contain a population which, in .1862, was estimated at 120,000.
The Jynteeah Hills were formerly under the independent Rajah
of Jynteeah. The Cossyah H ills were divided into a number of
smaller districts under different rulers. Of the twenty-five
Cossyah states, five used commonlj' to be called ^^semi-indepen­
dent,” and the remaining tw enty “ dependent.” I t is not very
clear how this division was arrived at, atid it probably has
never been accurately ascertained what part of the Cossyah
H ills is, and what is not, British territory. B u t by^far the
greater portion has long been subject to our Grovernment, and
is therefore (21 & 22 V iet., c. 106, s. 1) included iii B ritish
India.
^id 6 r"tcri'8 5 5 7 ^ ® i’® vvas a Political A gent of the Cossyah
H ills, who exercised the usual powers of a Political A gent with
Tard to so much of the territory as was under chiefs who
e treated as in dependent; but he also held general powers
'le administration of justice in those portions of the territory
. had ceased to be independent. P robably, in practice^
"erence was of no 'v ery g reat importance, the chiefs
too insignificant to assert any independent authority,
icer was in command of the Sylhet L ig h t In fan try ,
icted also as the Political A gent in respect of Jy n teeah ,
up to the period of the Burmese W ar in 1824, was
dent. D uring that war the Jyjiteeah territory was taken
lie protection of the British, and the Rajah acknowledged
‘gian’ce. In 1835 the reigning R ajah was deposed for
of cruelty and his territory was annexed. F rom the
f this annexation the Political A gent of the Cossyah
ems to have exercised tlie same fuiict-i-mis with regard
eah, as he had, hitherto es^rCtsed in respect of t^ie
■mn o L ^ jaamtliJifcifls. B u t he still contimietl
VOL. III.] CALCUTTA SERIES. 75.

to bear the somewliat inappropriate desiguatioii of Political is?#

A gent of the Oossyah Hills.
In the year 1835, an A ct was passed (Act Y I of 1835), by Bx-rai! an»
which the functionaries in political charge of the “ Cossyah ’
H ills ” were placed under the control and superintendenccj, in MATTBROF
criminal matters, of the Court of Nizamut Adawliit. From the Rim” ™
records of this Court it appears that, on the 16th Juue^ 18S5,
the Court informed tlie Government of Bengal that the Political
A gent of the Cossyah H ills had subm itted returns of criminal
business for Jynteeah also. The Government replied that the
Jynteeah territory was taken possesBiou of on the 15th of
M arch, whilst the A ct was passed on the 13th, and that if
the Court thought that this did not constitute any objection to
their doing so, the Government saw no objection to the Court
exercising jurisdiction in Jynteeah, which was accordingly
authorized. The C ourt replied accepting the jurisdiction, in
nTynteeaf from the date of the Act. The arrangement of th&
duties of the Political A gent of the Cossyah H ills remained
as above stated until 1854, when an order was issued by the
Governor of Bengal (1st March, 1854) to the Commissioner of
^Assam, communicating his detominiJ-iw#'*^^
fu n ctiousof* t!ieT ?^i^^ in the Cossyah H ills from the
command of the Sylhet Light In fan try , and to vest the
in an Assistant Commissioner, subordinate to the Commission
o f Assam, precisely on the same footing as the other p rin c ip ^
assistants, in the Province of Assam.” T h e order also intimates
th at the officer to he appointed would be call-ed “ Principal'
Assistant in charge of the Cossyah and Jynteeah H ills.” Prom
IhaL time the Cossyah and Jynteeah H ills, though never
formally annexed to the district of Assam, seem to have been
treated as part of Assam. All the criminal appeals which in
Regulation Provinces would go to the Sessions Judge, went
to the D eputy Commissioner of Assam, and were apparently
disposed of by him in the same manner as any other criminal
appeals in Assam.
In the year 1861, the jurisdiction which had been esercisecT
b y ,th e Nizamut Adawlut was transferred to the H igh Gon-Ffc
#^pon its creation by H er M ajesty’s L etters P aten t, Th^. .Code,:
76 TUB INDIAN LAW REPORTS. [VOL. III.

^^77 of Criminal Procedure was extended to Assam by a notification

Empukss of the L ieutenant-G overnor of Bengal publislied in the Gazette
Book^Sisgh 16th November, 1862, and though never expressly extended
IjTriiiH! 5is I have discovered) to the Cossyah and Jy n te e a h H ills,
MATTicuop it was considered to be in force in th a t district w ithout any
of Buhah further notification ; and this it would be, if the view th a t this
SisGH. district was made a p art of Assam were c o rre c t..
In the year 1866, the A ssistant Commissioner convicted a
prisoner, named U D on Dolloi, of an offence under s. 504
of the Indian Penal Code, and bound him over to keep the
peace for one year after his release. On appeal to the D ep u ty
Commissioner of the Cossyah and Jy n teeah H ills, th a t officer
confirmed the o rd e r; b u t this C ourt, upon a petition presented
by the accused, altered the period for which the p arty was
bound over.
In the year 1869, the D ep u ty Commissioner of the Cossyah
and Jy n teeah H ills referred a sentence of death for co n irm atio n
by this C ourt under s. 380 of the Code of Crim inal Procedure.
T he sentence was confirmed, and the prisoner was hanged.
U nder these circumstances, there can be no doubt th a t this
Jyntoon.h
H ills. T he only question the^efore'^^^^■tn,■,ilv<'v jni-ii^vliciioJi
been taken away, and this renders it necessary to consider
ib»e recent legislation with regard to these districts.
B y s. 4 of A ct X X I I of 1869 (which is called th e
Garo H ills A c t”) the G aro H ills are removed “ from the
'jurisdiction of the C ourts of • civil and crim inal ju d ic atu re,
and from the control of the offices of revenue constituted by the
R egulations of the B engal Code, and the Acts passed by the
leo-islature now or heretofore established in B ritisli In d ia, as
well as from the law prescribed for the said C ourts and offices
by the H egulations and Acts aforesaid and it is provided th a t
« no A ct hereafter passed by the Council of th e Governor-:
G eneral for making Laws and H egulations shall be deemed to
extend to any p art of the said te rrito ry unless the same be.
specially named therein.” By s. 5 “ the adm inistration of civil
and erim inal justice and the superintendence of the setjjie*
menfc .aiid realization of Jthe publio rcvonue and of all m atteif.
VO L. I l l ] CALCUTTA SERIES.

relating to rent witliin tlie said territory, are vested In sueli

officers as the said Lieuteuant-Grovernor may, for tlie purpose £»h‘i-u«s
of tribunals of first instance, or of reference and appeal^ from
time to time appoint; and the officers so appointed are, ia the — ^
administration of justice, to “ be subject to the directian and JfiTTEK or
control of the said Lieutenant-Q-ovemor, and be guided
such instructions as he may from time to time issue.” ’*Sisoh*
t B y s. 9 the Lieutenant-Governor is empowered to extend
ail or any of the provisions of this A ct to the Cossyah and
Jynteeah Hills.
By a notification in the Calcutta Gazette of 14th October,
1871, the Lieutenant-Grovernor did extend the provisions of this >
A ct to the Cossyah and Jynteeah H ills; and he also directed
that the Commissioner of Assam should exercise the powers of
tlie H igh Court in the civil and criminal cases triable iu the
Courts of that d istrict On the 30th Ju ly , 1872, rules were
issued by the Lieutenant-G overnor, under ss. 6 and 9 of
A ct X X I I of 1869, for the administration of justice and police
in the Cossyah and Jynteeah H ills, in which no allusion is
made to the H igh Court. ■
Shortly after this, another power, which had been conferred
by Parliam ent upon the Governor-General in Council, was
called into action with reference to these distiicts. By procla­
mation of tlie 6th February, 1874 (see Gazette o f India of ^th
F ebruary), in exercise of the powers conferred by s. 3 of
S tatute 17 & 18 Viet., c. 77, the Governor-General in Council
took some districts (now forming A ssam ’ and including the*
Cossyah and Jynteeah H ills) under his immediate authority and
management, which districts ivei'e till then under the Lieute-
nant-Goveruor of Bengal. On the same day, by another pro­
clamation, the Governor-General in Couifcil constituted Assam
a Chief Commissionership.
B y Act V I I I of 1874, after' a recital that the Cossyah and
Jynteeah Hills had been takeii under the direct management
of the Governor-General in Council, and had been made part
of the Chief Commissionership of Assam, all the powers then
vested in the Lieutenant-Governor of Bengal were (s. 1)
transferred to the GoyerEOx-General* in Council, and* the
11
78 THE INDIAN LAW KEPORTS. [VOL. III.

1877 G overnor-General in Council was empowered (s . 2) to delegate

E s ip e e s s iQ tlie Chief Commissioner all or any of the said powers, or to
Borah *3std withdraw the said powers.
By A ct X I V of 1874, in which th e Cossyah and Jy n teeah
siATTEu^oF H ills are specially nam ed. A ct X X I I of 1869 is repealed,
OT Buuah”^ 5ind the Local Governm ent is empowered (s. 6) to appoint
officers to administer criminal and civil justice and to xegulate
the procedure of officers so appointed, but not so as to
restrict the operation of any enactm ent for the time being
in force in any of the said districts. A nd it is also de­
clared (s, 7) th a t all rules theretofore prescribed for the
guidance of officers for all or any of the purposes mentioned
in s. 6 and in force a t the time of the passing of this
A ct shall continue to be in force unless and u n til otherw ise
directed.” This Act, however, has not y et come into force
in those liills, because as y et no notification under s. 3 has
been published.
By notification of th e 18th A p ril, 1874 (see Gazette o f
India, A pril 18th), the G overnor-G eneral in Council, under
s. 5 of A ct X X I I of 1869, made certain alterations in
the rules for the Cossyah and Jy n teeah H ills published under
the notification of ’J u ly 30th, 1872, by the L ieu ten an t-
Governor of Bengal, and republished the rules. I n these
rules no m ention is made o f the H ig h Court,
! I t thus appears th a t the jurisdiction of the H ig h C ourt
was certainly in existence until the passing of A ct X X I I of
1869. The q^uestiou then is, has this jurisdiction ceased by
reason of that Act, or by reason of anything done by any
person under th at A ct ? F o r the prisoners it is contended (I)
th at the jurisdiction of the H ig h C ourt as established by
P arliam ent cannot be*wholly abolished by any authority in this
country w hatsoever; (2) th a t if there be any authority which
cau abolish the jurisdiction of the H ig h Court, it is only the
Governor-G eneral in Council exercising legislative powers at
a meeting for the purpose of m aking laws and regulations
who can do this'; and th at in this case the assumed aboli“
tion was not by this authority, b u t by the Lieutenant-G oveim or
of Bengal acting under^the powers given to him by A ct X X I jl
VOL. III.] OALCUTTA SERIES. ^9

o f 1869, which powers, ifc is contended, were not validly con- 1^7
ferred,"^'^',';’ E3si>Rgj,&
Vt
W ith regard to the first question, the iurisdiction of this Bitoau am>
_ . , „ , _ ^ . . BOi»K SjffOH.
Oourt m the Oossyah aiul Jynteeah Hills was a Jurisdictiou —
vested iu the Ilfizamut Ada\’s^liit at the time of its abolition, «ArrBut>F
and it thus falls within the 2nd clause of s. 9 of the 24 & 25 ov ik'UAir '
Viot., c. 104. I t is, therefore, in my opinion, expressly made
subject by that clause to the legislative powers of the Groveruor-
Greneral of India in Council, or (to use a phrase which is
more convenient) to the Legislative Council of India.
I have given fully my reasons for this construction of the
H igh Courts’ A ct in In the matter o f the Petition o f Syed Feda
Ilossein (1), to wliich reasons I still adhere, and in which I
understand the other members of the F u ll Bench substantially
concur.
/ I t is necessary, therefore, to consider the second objection
taken on behalf of the prisoner. This objection is met by the
Crown in three different ways :—5'irsfc it is said, that the Act
of 1869 does itself actually take away the junsdiction o f
this Court. Secondly, that even if it does not do so, it
evinces a final determiuatinn of the legislative authority that
this jurisdiction shall be taken away, and th^t it only leaves ifc
to the Lieutenaut-Grovernor to fix the exact date of the Act
coming into operation; no discretion being vested iu him as
to whether the A ct shall come into operation o r not. Thirdly,
that even if the Lieutenant-Grovernor be vested with a discre­
tion to determine whether or no the jurisdiction of this Court
shall be taken away, still there is nothing which renders snob
a delegation of authority illegal.
The first and second of the three propositions put forward
on the part of the Oroivn depend upon what is the true con­
struction of Act X X I I of 1869. T he A ct is a very peculiar
one. I t recites that it is expedient to remove the G aro
Hills from the jurisdiction of the Civil, Criminal, and
ilevenue Courts and offices established under the general
Regulations and Acts, aud to provide for tlie administration

(1) I. L. E., 1 Calc., 431.

80 the INDIAN LAW EEPORTS. [VOL. III.

1877 of justice and the collection of revenue in the said territo ry .”

E m p r e ss The A ct is to he called “ T he G aro H ills A ct, 1869,” and
^uKAH AND it is to come into operation “ on such day as the L ieu ten an t-
— Governor of Bengal shall by notification in th e Galmitta
M A T T K U O P Gazette d irect.” Then by s. 3, “ on and after sucli day,”
is to say, when th e A ct comes into operation in the
Gavo H ills, A ct Y I of 1835, so far as it relates to the Cossyah
H ills, is to be repealed. Then ss. 4 to 8 deal exclusively
with the Garo H ills, and s. 9 gives the pow er already
adverted to, to extend all or any of the provisions of the
A c t to the Jynteeah H ills, the N aga H ills, and to such,
portion of the Cossyah H ills as for the tim e being forms
p art of British India. I t is contended th at s. 3, which
relates to the repeal of A ct V I of 1835, came into operation,
so far as reg ard s the Cossyah. H ills, when the L ieu ten an t-
Governor brought the A ct into operation in the G aro H ills ;
th a t there was no discretion left as to bringing the A ct into
operation in the Garo H ills, and th a t by the repeal of A ct
V I of 1835 the jurisdiction of this Court, as created by
tlia t A ct, was destroyed. Assuming, for the present, the
correctness of the other parts of this argum ent, still, in my
opinion, the last proposition' is incorrect. W hen A ct X X I I
of 1869 was passed, the jurisdiction of this C ourt in the
Cossyah H ills in no wise depended upon A c t V I of
1835. I t depended upon the 24 & 25 V iot., c. 104,
s. 9. A ct V I of 1835, in so far as it conferred ju ris­
diction upon this Court, was wholly obsolete. M oreover, as
already shown, the jurisdiction of the N izam ut A daw lut was,
after some discussion, extended to both the Cossyah an d
Jy n teeah H ills, and the jurisdiction of th e H igh C ourt, which,
is co-extensive, has been exercised in both tracts accoi’dingly.
B u t s. 3 of A ct X X I I of 1869 is expressly confined to
the Cossyah Hills. The resu lt, therefore, of this construction
of A ct X X I I of 1869 would be th at, whilst it takes away
our jurisdiction in the Cossyah H ills, it leaves it in the
Jy n teeah H ills. This is yery improbable. E v er since the
year 1835 both these tracts have been iinder one administratiism
- forming the district of one D eputy Commissioner. T he reason'
VOL. III.] CALCUTTi- SBEIES. g|

why tlie legislature was desirous to get rid of the Act of isrr
1835 at all events is not perhaps at first sight quite obvious. Empress
B ut it was, I believe, as follows As to th at large portion of the BtmAn ash
Cossyah H ills which lies within British territory^ the A ct was, as I
have said before, obsolete. As to auy small portion of the mattek of
Cossyah H ills, if there should be auy, which m ight be con-
sidered as not within B ritish territory, the A c t, tliough in
terms applicable thereto, could not be enforced. I t was, there­
fore, an A ct which it was proper to repeal so far as the
Cossyah Hills were concerned, whether our jurisdiction re ­
mained or not. / I am, therefore, clearly of opinion, notwith-
sfcanding the reference to the Cossyah H ills in s. 3 ami
the repeal of Act V I of 1835, that the Act of 186P does not
itself take away the jurisdiction of the H igh C ourt either in
the Cossyah or in the Jynteeah Hills.
/N or do I think that the Act, taken as a whole, evinces a
final determination on the part of the legislature th at the
jurisdiction of the H igh Court shall be taken away. I will
assume that if it did so, there would be then nothing to
prevent the operation of the Act. I will assume th at the
operation of an Act complete in all its parts, may be suspend­
ed by the legislature uniil something. is done by an officer of
Grovernment. This might be considered merely as a method
of promulgation, and not as any delegation o f authority at
all. I t would be the same as if the A ct had been directed
to come into operation on its being printed at length in tha
Calcutta Gazette. If, therefore, this be the tru e construetioa
of the A ct, I am not prepared, as at present advised, to sa;f
th a t it could not operate. As regards the Graro H ills, the
A ct (always excepting s. 8, which presents special diffi­
culties of its own which I need not now consider) may, I think,
bear this construction. B u t as regards tlie Cossyah and
Jynteeah Hills, the A ct cannot, I think, be so construed. The
frame of the A ct as to the Garo H ills and as to the Cossyah
and Jynteeah Hills is entirely different. I f the legislature
had had the same final intentions as to removing the Cossyah
a n i Jynieeah H ills from the jurisdiction of th e ordinary
uourfcs as it may, I think, notwitli^tanding s. 2, be xon-
82 THE INDIAN LAW EBPOETS. [VOL. I l l

1877 aiflered to have had in respect of the G-aro H ills, tlie prefim1>le
E m pr ess the A ct would T io t have been limited to declarin«- the
Burmi ani> expeclieiicy of removing the Garo H ills only from the iurisdic-
B ook S in g h . ^ ^ t n t
— tion of those Courts. I t would have declared the expediency
MAT'jL’jiKOF of removing the Cossyah and Jy n teeali H ills also. I t is true
oFBunlii^ that the preamble of an A ct cannot lim it the express words.
B u t here the express words are in accordance with the pre­
amble. T he power to bring the A ct into operation generally
is conferred by s. 2. T he power to extend the A ct to
the Oossyah and Jy n teeah H ills is given quite separately and
in different language by s. 9 ; and it is not a power to
extend the A ct simply, b u t to extend “ all or any ” of the
provisions of the Act. T he Lientenant-Grovernor m ight, for
example, have applied ss. 6 and 7 to the Gossyah and Jy n te ea h
H ills, but not s. 4, in which case our jurisdiction would have
remained as before. I t cannot, I think, be said th a t a power
of extension so conferred makes the L ieutenant-G overnor the
mere ministerial officer who ia to prom ulgate the A ct, I t vests
in the L ieutenant-G overnor a double discretion ; first, whether
the A ct shall come into operation in the Gossyah and Jy n teeah
H ills at a ll; and secondly, if so, what portion of it shall there
operate. I do not mean to say th a t this is all the discretion
vested by the A ct in the L ieutenant-G overnor. H e m ay by
s. 8 apply or ,not apply to these territo ries all or any por­
tion of any law applicable to other p arts of Bengal. B u t this
portion of the Act is not now im m ediately before us. I am
at present only considering s. 9, and w hat discretion, th at
section leaves to the L ieutenant-G overnor as to th e applica­
tion to the Gossyah and Jy n te ea h H ills of s. 4. H eading
s. 9 by itself, the discretion appears to me to be absolute.
R eading the whole A ct, X can find no words which can
carry any fu rth er inference than this — th a t the L egislative
Council, wl\en it determined it to be expedient to remove the
Garo H ills from the jurisdiction of the ordinary C ourts, at th e
same time contemplated the possibility of its being expedient
to remove the Coasyah and Jy n teeah H ills from this Jurisdic­
tion also. B u t this they left an entirely open queafcioa t#- be
decided by the L ieutena«t-G overnor of Bengal. ] ;
VOL. III.] CALCUTTA SEEIES. gg

Ifc ia not; of course in any way necessary now to estaljlisli m-;

thafc there is no legislative discrei-ion left to tJie LieiJteiiimt- "™lSjp~rEris”™
Cjovernor as to the -ftppUcatioii of this A ct to the G;iro f?r«.w axb
U ut it is, I think, desiral»le to show thafc the discretinii fif
any) under s. 2, and the (liscretion under g. 9, are wholly MSmfr.r
different hoth in kind jukI degree. F o r this purpose we may
consider the m atter iii this way. Ifc is ju st possible to conceive
th at the Lieutenant-G-ovemor of Bengal might not chouse to
issue the notification under s, 2, and that the Governor-
G eneral in Council m ight not choose to compel him to do so.
T he legislature would then have been helpless j the A ct would
never have come into operation at a l l ; it would have wholly
miscarried; and the intention o f the legislature would have
been defeated. B ut would the intention of the legislature
have been defeated if the Lieutenant-Governor had given the
notification under s. 2, and had not extended a. 4 of the
A ct to the Cossyah and Jyiiteeali Hills ? I thiuk not. In
the one case the legislature counted on the action of the L ieu­
tenant-Governor as a c e rtain ty ; in the other case, they left him
to act or not as he pleased. Then again, the nioraeiit the Act
came into operation by the issuing of the notification under
e. 2j the jurisdiction of the ordinary C o u ^ in the Garo
H ills was destroyed by the imperative words of s. 4. B ut
even when the Act had been thus brought into operation there
is still not a single imperative word applicable to the Cossyah
and Jynteeah Hills at all. Even then it is only said thafc the
Lieutenant-Governor may from time to time extend to
certain districts " all or any of the provisions of the Act,^'
W h a t ground is there for saying that the intention of the legis­
lature would have been defeated if the Lieutenaot-Oovernoj:
had declined to exercise any portion of these powers?
A nother way of looking at s. 9 was suggested in the
course of tke argument. I t was said that s. 9 m ight be looked
at merely as dealing with a question of bouiularies; that all
the districts mentioned in the A ct, the Garo H ills, the Cos-
synh and Jynteeah H ills, and the Naga Hills^were conterminous,
an4 that iu sucli wild and barbarous distric^a as these it would
fie iunposslble for the legitslature to fis« the exagl^lin'iits ol the
84 TEE INDIAN LAW KEPORTS. [VOL. IIL

1877 application of the Act. I think this suggestion does not accord
Emphess with eitlier the geograpliical or the historical facts. A lthough
Bobah AND the Garo H ills and the Cossyah and Jy n teeah H ills and the
— ^ ’ iTaga H ills are contiguous, they are three entirely separate
MAT-rmrop districts. The Garo H ills belong to the Commissionership of
Cooch B ehar, the Cossyah and Jy n teeah H ills and the N aga
H ills to the Commissionership of Assam. T he boundary
between the Garo H ills, the Cossyah and Jy n teeah H ills, and the
N aga H ills is generally well defined. I n point of size the three
districts are about equal, the Cossyah and Jy n te ea h Hills, being
rath er the largest. The policy of the Governm ent has always
been to keep the G aro H ills out of the jurisdiction of the
regular C ourts, and these Courts have never established th eir
jurisdiction in that district. On the other hand, the policy aa
to the Cossyah and Jy n te e a h H ills was to bring them mideir
the ordinary jurisdiction of the C o u rts ; and this jurisdiction
was fully established and in action w ithout iuconyenience from
1835 up to 1871. The G aros are said to be wild and barbarous
tribes, whom the Government in 1869 were still endeavouring
to reclaim to the habits of civilized life. No such assertion, as
far as I am aware, could be m ade w ith regard to the inhabitants
of the C o ssy a h ^ n d Jy n te ea h H ills. T he district is a peace­
able one; the inhabitants’ of it carry on peaceful pursuits.
T here are w ithin it two considerable E uropean stations, one of
which is the seat of the L ocal Governrnent of Assam. T here
are also m any Europeans living in the Cossyah and Jy n te ea h
H ills, m ost of them in the service of G overnm ent, b u t some
are settlers. T he determ ination, therefore, to exclude the ordi­
nary Courts of law from the Garo H ills would depend upon
considerations having no application w hatever, or at least only
a very modified application, to the Cossyah and Jy n te e a h H ills.
M oreover, there was a special cause which led to the legislation
of 18^9 as regards the G aro H ills. T here had been a decision
of this O ourt, which in effeefc decided th a t the G overnufent had
been w ro n g ib treatin g certain portions of the G aro H ills as
n o t within the ja d d ic tio n of the ordinary Courts of justice. I t
■was to counteract the re su lt of this decision'^hat the Aok of
1809 was passed. I t was in fact an A ct passed to legalize tl!^
 TOL. III.] CALCUTTA SERIES. ^5

ka tu s quo. B u t the same A.ctsw!ieiimtroducred into the Cossyaii

arid Jynfceeali Hills, instead of coiitiiming a state of things Empbms
al’readf iti existence, entirely revolutionized the loag establislsed'
ddmiuiatratiou of the d is tric t Ifc threw hack people who had —
been living for thirty-fi?e years imder a regular artd settled MArj”K^J.p
d.dmini8tratiou according to established laws into a ct)«diti<i.in w
which every one would nckuowiedge to be only suitable to a
people just emerging from barbariBm,— that is to say, a condition
ill which all the powers of GoFerximent were centred in the hands
of a single individual. This may have been-necessary, I do
not presume to say th a t it was not so. B u t there is noshing ia
the frame of the A ct of 1869, or the citcumstanoes of the case#,
which would lead me to suppose that simply because this was
done in the Garo H ills it was neceasarily iateaded to be done
in the Oossyah and JTynteeali H ills also.
I think, therefore, that the legislature did not decide by A ct
X X I I of 1869 that in the Cossyah and Jynteeah H ills the^
jurisdiction of the ordinary Courts should be excluded; that it
did not express any opinion whatsoever upon that question^ but
th at it lef$ the decision of it to the absolute and uncontrolled
discretion of the Lieutenant-Grovernor.
This being the vie-w that I take of A ct X X I I of 1869^ it
becomes necessary to consider whether it falls within the legis­
lative power%of the G-overnor-G-enerai of India ia Gotincil to
delegate to the Lieutenaut-Grovernor of Bengal the power o f
determining whether or no a particular district of B ritish India
shall remain subject to the jurisdiction of the H igh Court, J
Now in order to ascertain this we must go back to th at wMoh
is the root of the whole m atter, the 24 & 25 Y ict., c. 164,
s. 9, which (as we are all agreed) alone makes the H igh Courft
subject to any legislative control in this c o u n try ; and the ques­
tion comes to this. W hen Parliam ent made the H igh Court-
subject to this legislative control^ did it thereby intend to enable
the Indian Legislative Oouncil to transfer that control to an­
other person, or did P arliam ent *iutend th at that control should
^e exercised by the Legislative .^ouncil of In d ia itself ?
'^ument that such a transfer of authority may take
^n- put by at least eue.of' the lea».'ued Counsel w1h>
12
86 THE INDIAN LAW REPORTS. [YOL. III.

1877 argued this case for the Crown on very Ivigli grounds. I t is said
Empress th at the legislative powers of the G overnor-G eneral of In d ia
Burah and in Council mentioned in s. 9 of the 24 & 25 Viet;., c. 104,
ooK^NGH. those legislative powers which are conferred by the Councils’
MATTKR*oF Acfe (24 & 25 Yicfc,, c. 6 7 ); th a t except as regards the seven.
^*oF Buk«!e^^ heads specifically mentioned in s. 2 2 of the la tte r A ct the
^SiNGK*^^ Indian legislature has a power co-equal with th a t of P arlia­
m en t; that there is no restriction as to the mode of legislation ;
th a t the power of the Indian legislature to delegate its au th o rity
is no more to be questioned than the power of P arliam ent to do
th e sam e; and that every possible and im aginable power of
P arliam ent not specially excepted in the Councils’ A ct is con--
ferred. Stress was also laid on s. 45 of 3 & 4 of W ill. I V ,
s. 85, which provides th at laws made by the Indian legislature
shall have the same force as an A ct of Parliament:.
T his question although not, as I shall hereafter show, devoid
of authority, has never been discussed at length, as far as I am
aware, by any English Ju d g es. T he task of laying down the
principles upon which such a high and im portant question is to
be determ ined is an extrem ely difficult one, and I approach it
w ith the g reatest diffidence. B u t it is, nevertheless, one which
in the present o«^e I aica bound to attem pt.
Before proceeding to consider the general question, I will
consider an argum ent which was addressed to u ^ in, order to
show th a t th e Courts of law have no jurisdiction to en ter upon
a consideration of this question at all. I t was said th at, if
there be any limits to the legislative powers of the Governor-^
G eneral in Council, they are political lim its, and not legal ones,
and th at th e question I am about to consider la a political owe
upon which Courts of law are not empowered to enter, AU
doubt upon this part of the case m ay, I think, be cleared up by
consideration of thediiferenoe betw een a sovereign or supreme,
apd; a subordinate or restricted legislature. No one would con-*
tend that th e Indian legislature is itself sovereign. I t exercises
B^vereigui powers, but by delegation only, and is subordinate to
Parliam ent, This is made clear by the 3 & 4 W ill. XV, o.
4 • • • rt
8. 51, whidh is applicable to the present Jjegislativp-.
(§ee‘24 Sc 25 V iet., c. 6 f , s. 2 ), and which
 VOL. III.3 CALCUTTA SERIES. Sf

.meat the full power still to legislate for ladiiij m d to control^ is??
supervise^, and prevent all pioceediiigs anti A cts w!tatsoe¥er of £»*•**»»
the Governor-General in Council.” A iiclit is well known tfiafc
J^OO'Sfc,
Parliam ent does exercise a control as regards tlie afFairs of India —
wliich it does Bot exercise in any other dependency of the m w S oF
British Crown. The Indian budget is aniiually laid before
P arliam ent.' Indian questions are frequently there delj?tted on ;
and inquiries are constantly being there made by committees
and otherwise into |h e oouduct of affiiira by the Gofertti|eiifc of
this conntry. iN’ow, the reasons why Convta of law cannot
examine the validity of A cts passed by a sovereign or supreme
legislature, have no applicjitian whatsoever to the Acta o f a
subordinate or restricted legislature* O f course, within its
competency, the Acts of a subordinate or restricted legislature
are, ta use the exliression of Ohatieeilor K ent, as absolute and
un 00 u troll able a$ laws flowiug from, the sovereign power/* ( 1 )
and I may reraark id passing that this explains how it is
th at the Acfc^ of the Indian legislature, if duly authorized,
come to be e<iuivaleat to Acts of Parliam ent. B u t tlie
<|uestion whether the A ct is or is not within the competency
of the legislature must, as the same learned author points out,
of necessity fall within the province of O o u r ^ o f law to deter­
mine. The same principle was laid down by the Supreme
C ourt of tl|e U nited States in a case guoted by Chancellor
‘K en t at page 453 (2)- There the Chief Jnatice points out timt
the powers of the legislatare are in America (as they are in
India) defined and limited by a written constitution, ^'bufc,” he*
jjroceeds to say, to what purpose is that limifcatioa, if those
limits may at any time be passed ? The distinction between a
'Gv>vernnaeiife with limited and uulimited powers is abolished
if those limits do not confine the persons on whom they are
imposed, and if Acts prohibited and Acts allowed are of equal
obligation . . . . The theory
of every Government with a written constitution forming
the fundamental and param ount law of the nation m ust be that
an A ct of the legislature repugnant to the constitution is voi4.
(1) Kent’s Com., 448 ; Vol. I, n th ed., p. 485.
(?*^Kent’s Com., Vol. I, 490.
88 THE INDIAN LAW REPOETS. [VOL. III.

18^7 -tf void,it cannot bind the Courts, and oblige tliem to give it
Empiucss effect; for this would be to overthrow in fact w hat was eatab-.
B orah and lished ill theory, aud to make tliaf: operative iti law w hich was
B ook Sesqh. - , • .
— not law. , . . . i t the constitution
XsT
' matter of be superio’r to an A.ct of the legislature, the Courts m ust decide
between these conflicting rules and how can they close th eir
eyes on the constitution and see only the law .” In order pro­
perly to understand these observations aud to apply them to the
present case, it must be borne in mind that, the words ^ constU
tion’ and ‘'constitutional’ as here used do not mean precisely
the same thing as with us, and the distinction is most iraportanfe,
ias upon its due observauce depend the exact limits of the com­
petency of Courts of law to inquire into the validity of the A ct
of a subordinate legislature. T he P arliam ent of E ngland,
although absolutely sovereign and supreme, is restricted by lim its
which are called constitutional, and we speak of certain prin­
ciples of the English constitution as being inviolable. B u t
P arliam ent being in the eye of the law absolute, can do th a t
which a subordinate legislature cannot do. I t can, in the eye
of the law, by its own ordinary proceedings, alter the constitur
tion. T he proceedings^, therefore, of P arliam en t can never be
(][uestionedgUpoiM?onstitutional grounds by Courts of law. T he
constitutional restriction has, ex kypothesi, been already cut
away by param ount authority before the question arises. B u t
not so where there is a w ritten constitution issuing from an
authority superior to th a t of t h e : legislature whose functions it
defines. T here the coustitutional restrictions always operate
u n til the superior authority has removed them, and the C ourts
of law are bound to give eifect to them. M oreover— which is
most im portant, as showing that the question to be decided is,
ill the strict sense of tlie word, a legal and not a political one—
the restrictions here, as in Am erica, exist in a w ritten form, so
■that tliie only question the C ourt lu s to determine is ^thc ordinary
one_i_v5rhat was th e-in ten tio n of the sovereign p^Ower w hen it
'created the subordinate legislature ? I desii‘e itrto be fully auip.
iiedrVy tinderstood th a t I tre a t this as an o rd in iry question o f
construction of an A ct. or A cts of Parliam ent, and I d o l i o t
intend to enter intaai%J^^(?littcal ciansid^ratipnsAvhat^
c, 67, s.
-VOL. I l l ] CALCUTTA SERIBa 'SS
'■■I.also (lesife to^say tliafc I in no 'way, cotintenatice tlie docfriiie ikt?
wWch has been put forwaixl by -some eminent aiitlioritieSs Imt Esjpbbm
,wluch I believe to be now exploded# that Courts of law can b^b/ h
question the validity of Acts of the lep^islatiire iipon general
■considerations of religion^ raorality^ natural the so-called
social contract, or other similar groiituls. I have repudiated I his
doctrine aU'eady in tlie case of the Queen v. Ameer Khmi (i),
■and I do so again. Where an A ct has once been pnssed by a
legislature which is supreme, I consider it to be nbsolutelj
binding upon Courts of law. Where it is passed by a legisla­
ture the powers of which are limited, it is not the less binding,
provided it be not in excess of the powers conferred upon the
limited legislature. I may seem to some persons to be here
repeating mere truiamsj but I know by experience how much
one is liable to be miaauderstood when speaking upon such
'subjects as these.
Being, therefore, of opinion that it is not only within our
power, but that it is our duty to say whether the authority given
to the Lieutenant-Governor to take away the j urisdiction of this
Court was validly conferredj I proceed to consider the general
.and. important q^uestion, whether the Councils’ Act enables the
■Legislative Council of India to transfer to jithers the powers
' Which Parliam ent has conferred upon itself.
Now, what ia the broad principle generally applicable to all
cases where tin authority is given to one person to do acts or
•behalf of another, which authority involves personal trust and
.confidence in the agent, and. is to be exercised by him in a parti­
cular manner ? I t will? I think, be admitted that the agent ia
bound himself to perform the acta for which, he is authorized
according' to tljie manner indicated, 5 and that he cannot transfer
to others the confidence reposed in himself. Xo doubt, this
principle has been generally laid down with reference to d.ealr
ings between private individuals, but it appears to me to be
<ec(^ually applicable to th e case of public functionaries. jParlia-
laent has said that the G'overnor-General of India, together with
'certain other specified ' persons whose ^qualifications

(1) B B. li. B., 483.

90 THE INDIAN LAW REPORTS. [VOL. III.

1§77 mentioned, may make, a t m eetings duly constituted, laws

laititKss fov the people of India. To th at extent it lias delegated
^oRAHANB its own sovereign authority to the Indian legislature. B u t,
— * undoubtedly, this delegation' of authority was made in view
Ij? TflK!
MATTKR OF of tliB spocial qualifieatious of the persons in wliom this
’'’'of power is reposed, and of the safeguards which arise from the
^Singh!^ publicity and deliberation of the proceedings of a legislative
body which can only transact business at m eetings duly con­
vened and constituted. Did P arliam ent intend to be itself the
sole judge of wliat persons were thus qualified, and w hat safe­
guards were necessary for th a t purpose ; or did it intend to leave
to the legislature here the power to substitute any persons
whom they might consider sufficiently well qualified and any
safeguards which they m ight consider suffioieutly effectual ?
T h a t is the question we have to decide. ^
T he only ground upon which, as it appears to me, it can be
m aintained th at the Indian Legislative Council may transfer to
others the powers entrusted to itself is the broad and general
ground upon which it was placed by the learned Standing
Counsel M r. K ennedy, who argued with great force and ability
th a t the power to do this is involved in the power to m ake lawsi
I t was pointed qyit th a t there is a difference between a general
power to m ake laws and a p articu lar power, for example, to
g ran t a lease or to execute a deed. I f I give a,m an a power to
execute a deed, and he transfers th a t power to some one else,
lie has done something clearly not authorized by the power
which was restricted to the single act of executing a deed.
B u t where P arliam ent has conferred, upon a legislature the
general power to make laws, the only question can bfe, is th e
disputed A ct a law ? I f it is, then it is valid, unless it , falls
within some prohibition. I think th a t this argum ent is sound,
and th a t it m ust be m et if the validity of A ct X X I I of 1869 is
denied.
Now, firslj as to this A ct being a law, I am clearly of opinion
th a t it is not a law ia th e proper sense of the word. I am a t
present only speaking of the A ct so far as the Cossyali
Jy n teeah H ills are concerned. A s to those hills, iu the vi^w
th a t r t a k e of i t , this Act-commauds no one to do or to forbear
VOL. IlL ] CATX’U riM SERIES. n

from doing thing. I t is siniply a sigtiiflcation tfiat a pairti- ^2®'^

Cftlat person may in those hills either door iiofc do certain tljings
as he likes. T h at is not a law in the orvliuary acceptance of the
^ *• Iwfjx hiseiu
■word, I Will not take the definition of ‘ law ’ aa giYeu by so •’—*
accurate atid precise a writer as Austiiij sioce it may perhaps he m t m of
objected that his views camiol be appVied to British Acts of orikuiJK*
Pariiiimeiit B ut no one will make fhi^ objection as regards '^sLolir
Blacksfcone, and how do we find that Blackstone defines a law f
H e says, a law is that rule of action wliich is prescribed
by some superior and which tha iiiferioi* is bound to obey ” (1).
T ried by this test A ct X X I I of I860 ia not a law. I need nol
here advert to the distinction between snbstnntivo and ndjective
law, the ultimate object of both being the sam e; nor do J say
th a t amongst the multitiidiiious varieties of meaning whlcli h a f i
been attributed to the term ' law,’ a mere permission to legislate
could never be cnlled a law. Any authoritative expression of
intention m ight, by so»jje persons under soma circum?taiice8, be
called a law. B u t wlien a Legislative Council was constituted
in In d ia distinct fi-omi the Executive Council with power to
make laws at meetings held for the purpose, I think it was
clearly intended to restrict the Ijegislative Council to the exer­
cise of functions which are properly legislative-—that is, to the
m aking of laws which (to use Blackstone’s expression) are rules
of action prescribed by a superior to an inferior, or of laws
made in furtherance of these rules. The English Parliam ent
is not so restricted. I t is not only a legislative but a para­
m ount sovereign body, and many of its Acta are nut laws accord­
ing to. Blackstone’a definition, though as being authoritiitive
expressions of intention they might be sonietimes so called.
The Indian Legislative Council cannot, in jwy opinion, do all
tliat Parliam ent can do, even where there is no express prohibit
tiou. The powers concentrated in Parliam ent are in India divi­
ded between the Executive and the Legislative Qouncih The
Executive Council alone has the superintendence, direction, and
control of ^he w hoS civil an d m ilitary government of the terri­
tories and revenue of India (3 & 4 W ill. IV , c. 85, s, 39), The

(1) Yol. I , p. 38f

02 THE INDIAN LAW REPORTS. [VOL. IIi:

i877 L egislative Council has the power of making laws only. l a

jiMPKisss
V.
E n sla
=>
u d also no doubt, as iu In d ia, the executive functions o£
AND Groverument are generally exercised by a body distinct from
---- Parliam ent, by what (iu a special sense) is called “ the Xxorern-
In 'X’hk
KiATTicitoF m ent;” but there is no impediment to P arliam en t taking,
upon itself executive functions, and the executive authorities,
are all i-espousible to P arliam ent for the way in which th ey
exercise their executive powers. Indeed, to some extent, P a r ­
liam ent does exercise purely executive functions, as, for exam­
ple, when it fixes the am ount of the naval and m ilitary forces,
or appropriates the public revenues. T he difference in In d ia is
this. T hat the E xecutive Council and the L egislative Council
are two co-ordinate and independent bodies, each having its own
separate functions with which the other cannot legally in ter­
fere. F o r these reasons, I think th at the L egislative Council,
when it m erely grants permission to another person to legislate,
does not make a law within the m eaning of the A ct from which
it derives its authority. •
. I have discussed this question w ith reference only to the
word ‘ laws.’ The A ct of P arliam en t uses th e expression
“ laws and regulations.” Ko reliance was placed in th e argu­
ment on the use the additional word, and I th in k m yself th at
it is m erely redundant.
B u t I quite admit th at, in order fully to appreciate the powers
of the Indian legislature, we m ust not fasten our attention
_solely upon the meaniug of a single word. W e m ust look to
tl\e whole A ct, and g ath er from 'it w hat were the intentions of
P arliam ent in this respect. Indeed, we m ust look further. I n
order properly to understand the fram e and intention of the
Councils’ A ct we must consider the whole action of P arliam en t
with regard to legislation in India from the year 1833 down to
the present time. In the year 1833, by the 3rd & ,4th
W ill. lY , c. 85, s. 43, the G overnor-G eneral in Council was
empowered to make laws and regulations. U n d er tliis A c t
there was b u t one authority in In d ia, the G o vernor-G eneral.
df Iildi^ in. C ouncil -’ T here was not as now a.separate counciL
for making laws and regulations. B u t by s. 48 all la ^ s
and regulations were to foe made at some m eeting of the Coun-
 VOL. III.] CALCUTTA SERIES, 9^

’ cil a t w hich th e G o v ern o•r-G en eral and a t least th ree o f the 1877
__
o rd in ary m em bers of C ouncil w ere assem b led ; aucl a t w hich Emi-rkss
alone th e leg al m em ber of C ouncil (as he w as called) was e n ti- tjurah ano
tie d to vote. B y s. 70, th e G overn o r-G en eral in C ouncil
w as ex p ressly p e rm itte d to au th o rize th e G o v ern o r-G en eral MATTrKos'
alone to exercise all th e pow ers w hich m ig h t be exercised by th e
G o v e ru o r-G e u e ra l in C ouncil, ex cep t th e pow er of m ak in g laws
and reg u la tio n s.
F ro m th is tim e n o th in g o ccu rred , as far as I am aw are, to
affect th e co n stitu tio n of th e le g isla tiv e a u th o rity in In d ia ,
u n til th e y e a r 1853, w hen by th e 16th and 17th Y ic t.,
c. 95, th e co n stitu tio n of the L eg islativ e C ouncil ’was en tirely
altered by th e addition o f m em bers w ho did not belong to th e
E x e c u tiv e C ouncil. A distinction betw een th e legislative and
executive fu n ctio n s o f G o v ern m en t is observable in th e A c t
of W illia m th e F o u r th , b u t th is A c t p u ts th e d istin ctio n upon
m uch clearer g ro u n d . I t p u ts those functions in to the h ands of
tw o separate bodies. O w ing to th e pow er w hich th e E x e c u tiv e
G o v ern m en t has over tlie ap p o in tm en t of m em bers, an d for
other reasons, its influence in th e L e g isla tiv e C ouncil ia still
suprem e. B u t th e change in th e co n stitu tio n of th e L e g is la tiv e
C ouncil in tro d u ced by th is A c t is, n ev e rth ele ss, 0
^ im p o rtan ce as
em phasizing th e d istinction b etw een leg islativ e and ex ecu tiv e
functions. T h e re is also no d o u b t th a t h enceforth a conflict of
opinion betw een th e E x e c u tiv e an d L e g is la tiv e C ouncils w as
th e o re tica lly , a t an y r a te , no lo n g er im possible.
I n th e n ex t y e a r. P a rlia m e n t, by th e 17th and 18th V iet.,
c. 77, g ra n te d to the E x e c u tiv e C o u n cil pow er to ta k e an y
d istric t u n d er its own im m ediate a u th o rity , and to give all neces­
sary directions resp ectin g th e ad m in istratio n o f such d istricts o r
otherw ise to pro v id e fo r the ad m in istratio n th e re o f: p rovided
alw ays th a t no law or re g u la tio n should be altered ex cep t by
laws m ade by th e L e g islativ e C ouncil. T h is pow er to issue
orders and directions is, no doubt, to some e x te n t a legislative
pow er, and th e A c t shows how v ery cau tio u sly provision w as
m ade by P a rlia m e n t for a change in the leg islativ e m ach in ery
in ftidia. I t is to be 'Observed also th a t th is v ery lim ited pow er
is. couferred u o t u^on th e L egislative* C ouncil b u t u p o n ‘ th e
13
'91, THE INDIAN LAW EEPORTS. [VOL. III.

1877E xecutive—a peculiarity wliichj as we shall see, is preserved ‘

Emphkss through all the A cts of P arliam en t relating to this subject.
BxTrtAH Aso T he next Act is the Councils’ Act. T h at A ct re-confers th e
“ _1_ ■ general power of m aking laws and regulations for the whole of
MAT^rri'^oF India upon a L egislative Council somewhat differently consti-
tilted from what it had' been previously, but still one quite dis-
'^SiiSGu?^ tinct from the E xecutive Council. The A ct provides how the
members of the L egislative Council are to be ap p o in ted ; how
they are to resign their offices ; and, for the validity of acts,
notw ithstanding certain defects in the constitution of the Couu-
oil, it declares th at the power of m aking laws shall be exercised
by the Council only at m eetings duly constituted in the m anner
directed by the A c t ; it provides how meetings of the Council
are to be convened and adjourned, and how rules for the con­
duct of business are to be made, and one im portant ru le for the
conduct of business, is, by s. 19, laid down by P arliam en t
itself. I t is also rem arkable th a t the Indian legislature does
no t exercise absolute control over the rules for th e conduct of
its own business, nor any control over its own ad jo u rn m en ts;
the first is partly, and the second entirely, under the conti'ol of
the E xecutive Governm ent. T he A ct also confers a somewhat
more restricted^ b u t still, as far as it goes, general, legislative
authority upon L ocal Councils in M adras and Bombay. T h en ,
dealing with the subject of a change in the legislative machi­
nery, the A ct empowers the Grovernor-General in Council, th at
is the Executive Council, by proclamation to establish local
L egislative Councils in other parts of India, each of which
would possess, in reg ard to its own particular district, a general
pow er to make laws sim ilar to th at possessed by the Local Cpun-
cils established by the A ct. T hus we find provision in the A ct
for th e establishm ent and constitution of, and the conduct of
business by, three Legislative Councils. also find power to
create new L ocal Councils given to the Executive; and it is
also provided how these L ocal Councils are to be constituted
and how they are to conduct th eir business. As to any othex*
changes in the legislative m achinery the A ct is wholly s ile n t .
T he n ex t A ct is th e 33 V ie t , c. 3,, expressly passed to
make better provision f tr ordinary laws in.certain parts of India*
 TOL. III.] CALCL^TTA SERIES- 05
I t was found, no doubtj that the macliinei’y of w e n a locnl isn
legislature was too cumbrous for certain oiifclyiag tlistricts, aiJil £mj’kes;s
tliis Act, acoordiugly, enables the Executive governm ent, under Bm.in Am>
certain special restrictions, to make regulations (the word *laws* '
is not used) ia a particular m anner witlioufc any resort to the
Legislative Council. B u t this can only be done in those parts
of India as to which the Secretary of State in Council shall
declare the provisions of the A ct applicable. I n short, the A ct
provides a very special and guarded method of doing th at which
i t is now said that the Indian legislature may do without limit
or restriction.
W e see, therefore, th at these Acta of P arliam ent nowhere
confer any express power upon the Indian legislature to change
the machinery of legislation in India, but they do confer that
power subject to im portant restrictions upon the Executive
Government. Now Parliam ent, in conferring this power upon
the Executive Government, necessarily proceeded upon one of
two views. E ither it considered th at the Indian legislature had
power to change the m achinery of legislation in India, or it
considered that it had no such p ty e r. In other words, P arlia­
m ent, when these Acts were passed, either considered that it was
m aking the sole and only provisions which existed, for changing-
the legislative machinery in In d ia, or it considered th at it was
. conferring powers which need only*be resorted to when the Execu­
tive Government could not obtain the powers which it required
from the Legislative CounciL I have come to the conclusion
upon reading tliese Acts of Parliam ent that Parliam ent considered
itself to bo milking the only provisions which existed for changing-
the machinery of legislation otherwise ilian by an Act passed
by itself. In the first place, T/liatever theoretical diHiculty
m ight be imagined as arising out of a coniliot between the lOxe-
cucive and Legislative Counoils, I do not think th at any ouc
ever seriously contemplated that any such uiineulty could occur.
The existence of the Legishiiive CoTincil secures publicity anti
deliberation in reo-ard
CD
to the legislative
O
action ot Govenniiiint.
B u t the actual power of Government still remains for all prac-
ticsfi purposes with the Executive. I do not think, for example,
th a t Parliam ent passed such aa A ct as the 33 Yicfc., c, 3,
96 THE INDIAN LAW EEPOllTS. iYOL. I l l

1877 merely in view of such a contingency ns a conflict between the

EMruicss Executive and Legislative Council. In the next place, though
Buka HAND it is not impossible, I think it unlikely, th a t powers to make
fundamental changes in the constitution would have been placed
nlrxi^Iov by Parliam ent simultaneously in the hands of two co-ordinate
independent bodies. I n case of these two bodies working
harmoniously such a double power would be useless. I n case
of their working inharmoniously, such a double power would,
as it seems to me, be objectionable, Tlie v eiy fact, therefore,
that Parliam ent bestowed this power on the E xecutive Grovern-e
m ent of India seems to me to show th at it did not already exist
in the legislature. B u t after all, what is most im portant, I can­
not reconcile the language of these A cts of P arliam en t w ith
the existence of the power now claimed for the L egislative
Couucil of India. W e m ust consider what the natu re of the
claim really is. I t is nothing less thau this, th a t the constitu­
tion of India as created by P arliam en t in these S tatu tes is a
merely provisional o n e ; th a t all the directions as to the mode
of exercising legislative authority are only to rem ain in force
and effect so long as the legisla|ure may choose th a t they should
do so. T h at the separation which these statutes make between
the exercise of legislative and executive functions may be nulli­
fied, and all the powers now held by the legislature m ay be
retransferred to any executive of&cer it may select, w henever
it pleases to do so. The legislature may, indeed, still continue
to exist, b u t it m a j abrogate all its functions by transferring
them to some one else. I do not so read these A cts of X^arlia-
ment. I think that P arliam ent intended the provisions which
it made for the exercise of legislative power in In d ia to be per­
m anent until altered by itself, and that it did not intend to give
the Indian legislature power to repeal them. I t may be th at
there is nob much in India to which the term constitution ’
(jan be properly applied. B ut there is something. T he laws
m ust now be made publicly and with deliberation. I do not
think this pcovision either worthless or unim portant, and its
worth and importance is greatly increased by the fact th at it is
th e only protection which exists in this country against hifsty
and-arbitrary legislation The Counsel for the Crown argue
TOL. III.] CALCfJTTA SBIIIES, 97

th a t tliis protection may be swept away "by llie IiiiliaB leg!?- __

laturej anti its powers of legislation placed iji the liaiuls of a Exntf.>-4
single inclifidnaL I do not; tliiiik so. I think thiH protectiou ,i^n
was provided by Parliam ent for the people of Indiji, and that
it is only under tiie express aufcliority 0 ! Parliam ent itself th at a S n ’u'.P
they can be deprived of it.
Moreover, if we consider at one view the Acts of Parliam ent
■which have been passed during the last forty years, we cannot
help seeing that there has been a considerable couflicfc of prin­
ciples in dealing with Indian legislation. A t one time there
was an attem pt to place the legislative authority for the whole
of India in a single council. This authority has been in part
decentralized by the establishment of L ocal Councils ; and from
tim e to tiraCj in respect of certain districts, the legislative autho­
rity , after having been once separated from the executive^ has
beeiij under the express authority of P arliam ent, again con­
founded with it, aud all powers without distinction have been
again placed ia the hands of the Executive Grovernmcnt, where
they origiually resided. I believe that there is no doubt what
the origin of this conflict and*of these changes was. W hilst
it was considered desirable to secure for the people of India
th at the functions of legislation should be separated from the
other functions of Government and should be performed with
pnblicity and deliberation, it was found impossible th at this
should be done by a single council, or even, entirely bo , by a
general council w ith the assistance of several local councils.
Parliam ent has, therefore, from time to time relieved these bodies
from the pressure of an extreme difficult3\ "We even know
th at to avoid the slow and tedious method of regular legislation
the executive authorities did, in former times, assume the j>ower
to legislate otherwise than in tlie regular maiiner for certain
districts of India. This,w as done to a large extent in the Non-
Begulation Provinces. B u t in the whole course of the contro­
versy which has thus arisen, and the pressure thus felt, 1 liave
never seen the claim distinctly put forward, that the right to
change the legi&lative machinery in India was included within
th^ general ])ower to make laws, and was one which Parliam ent
had entrusted tcN.the discretion of XmHau Legislative Councils*
98 THE INDIAN LAW KEPORTS. [VOL. III.

3S77 As far as I am aware, tliis easy aud simple solution of the diffi-
Empukss culty, namelj*, tliat these bodies have the general power to
Burah and transfer their legislative authority to others has never been
before asserted; and no direct attem pt to change the machinery
mattku' of of legislation iu India by any Indian Legislative Council has
ever yet been made.
^ SikgT ^ Upon the whole, therefore, it seems to me th a t the fair and
reasonable conclusion is this,— th at Parliam ent has provided
for the exercise of the legislative authority of In d ia by certain
councils at meetings duly constituted; further th at, if any
change in the legislative machinery is necessary. P arliam ent
has provided how and by whom th at change is to be m ad e; th a t
tlie power to make this change is vested by P arliam ent in the
Executive Government alone, no such power being vested in
any of the Legislative Councils. These arrangem ents for the
exercise of legislative authority and for the changes in legisla­
tive machinery depend upon five Acts of P a rlia m e n t; the
3 & 4 W ill. IV , c. 8 5 ; the i6 & 17 V iet., c. 95; the 17 &
18 V iet,, c., *77; the 24 & 25 V ict.j c. 67; and the 33 V iet.,
c. 3. The Indian legislature is expressly forbidden to make
any law which shall repeal or in any way affect the provisions
of any one of thpse five Acts. F o u r of these Acts are expressly
named in the prohibitions,—one in the first head of prohibition
and three in the second. The rem aining one is included in the
general prohibition cont^lined in the sixth head. In the view
th a t I take, the Indian legislature cannot change the legisla­
tive machinei'y in India without alFecting the provisions of these
A cts of Parliam ent which created th a t machinery, and if it does
in any way affect them, then, ex consensu omnium, its A cts are-
void.
On both grounds, therefore, both because A ct X X I I of 1869
is, as regards the Cossyah and Jynte.eah H ills, not a law, and
because if it is a law it is one which the L egislative Council of
India is expressly prohibited from making, I should hold that ifc
is so far void.
I have dealt with this case upon the broad grounds upon
which M r. Kennedy p u t it. H e boldly claimed for the In d ian
Legislative Council of IM ia the power to transfer its legisla-
TOL. I l l ] CALCUTTA SERIES. gg

tive functions to the Lientenant-GoverDor of Beugal. lodex, wrr

as I understood him, the only restriction he would a<linxt was aimprkss
th at the Legislative Counoil could not destroy its own power Asn
to legislate, though I see no reason ivhy he should stop there, — ’
The Advocate-Q-euerai did not, I thinks go quite so far. B at MArri’ifor
iu my opinion there is no narrowei* question which c«ii he suh- ”"'jp i!r"uV^
stitiited for the fcroad and general question which the learned
Counsel put and which I have considered. There are no words
in the Acts of Parliam ent upon which legislative authority
could be made transferable in one class of cases and not in
others. Of course, I do not for a moment suggest that every
time discretion is entrusted to others there is a transfer of legis­
lative authority. Every A ct of the legislature abounds with
examples of discretion entrusted to the judicial and executive
officers of Government, the legality of which no one would
think of questioning. And there may be particular cases ia
which it would be a m atter of considerable difficulty to say
whether or no the discretion conferred was of the legislafeive
kind. W hen the difficulty arises we must deal with it. B ut hi
the present case we have not to cope with this difficulty.; By
the express words of 24 & 25 Viet., o. 104, s. 9, it ia only
by legislation that the jurisdiction of this Coftrt can be taken
away. Whoever, therefore, takes away the jurisdiction of this
Court must exercise legislative authority for the purpose. I
have stated my reasons in an earlier part of this judgm ent for
holding that it was wholly by the Lieutenant-Governor, and
not in any sense or to any extent by the Indian Legislative
Council, that the jurisdiction of the High Court was assumed
to be tfiken away. The broad and general question seems to
me, therefore, necessarily to arise—c^in the legislatiire confer
upon the Lieutenant-Governor this legialatiye power
I now come to a decision which, as it appears to me, strongly
fortifies the conclusion I have come to as to the powers of the
Indian legislature. Indeed, it is a decision which I rely upon
far more than my own reasoning, and which wo must overrule
if we .*!re to adopt the construction of the Councils’ Act con-
lefldcd for by the Crown. In the year 1850 a suit was brought
in the late Supreme Court against a sertaiiv f the Commisafouers
100 TIJE JlS'DIAi? LAW KEPOHTS. [VOL. III.

1877 for flie Im provem ent of the Town of C alcutta for the illegal
Eju'jsicss seizure of a buggy. T he defendant justified the seizure uuder
Buiiah AND A ct X V I of 1847, and certain rules which the Comrnissiouers
— ' had made under that A ct, alleging th a t the plaintiff had not paid
mattku op the carriage titx assessed upon him by the Commissioners. Tiie
plaintiff demurred to the plea, raising a question as to the leg ality
^ of these rules. T he first judgm ent was delivered by the C hief
Justice Sir Xiawrence P eel as the judgm ent of himself and Sir
Jam es Colvile, On that occasion the C ourt intim ated a strong
opinion that, if these rules varied the law, they were void notw ith­
standing that they were made under the express authority of an
A ct of the legislature. W hen, after an amendment of the plead­
ings, the same question again arose, Sir Law rence P eel gave the
joint judgm ent of himself, Sir Jam es Colvile and Sir A rth u r
BuHer. I have referred to the R eg istrar’s book and this shows
(whioli the report iu T aylor and Bell does not) how the C ourt
was constituted on the two occasions on which the case was
before it. The im portant passage is the first paragraph in the
second judgm ent, and is to be found at page 479 of the R ep o rt
iu Taylor and Bell. The learned Ju d g es, though they express
g reat doubts w hether the rules iu th at particular case were
legal and binding, do not finally decide that point. B u t they do
clearly and unmistakeably lay down as a general princijde of
law api)licable to In d ia, that any substantial delegation of legis-
tive authority by the legislature of this country is void. T he
actual order made was a second permission to the defendant to
amend his plea upon paym ent of costs. The second am endm ent
was made, but I cannot find th a t the case went any fu rth er, and
probably it was compromised. T he A ct itself was shortly after­
wards repealed.
T he case was very fully argued on two occasions, the defend­
ant being represented by the A dvocate-G eneral and the S tand­
ing Counsel, and it is in all respects an authority which seems
c^ntitled to the very g reatest weight.
I am also disposed to think th a t if the Am erican reports were
available to us, we should find some authority there on this p art
of the case. There are several decisions of the A m erican
Courts referred to in a n©te to K e n t’s Com m eataries, page 504,
YOL. IIL] CALCUTTA SERIES.
10 1
O ne cannot be q[uite snre without seeing th e reports in exfema ho-i. igi?
far these decisions go, but they seem to me to support tlie viev
tbat A ct X X I I of 1869 is^ as regards the Coesyali and Jyateea'i bijhah *so
H ills, not a law.
I t was asked in tlie course of the argimieBt what was to b»
done in the fase of ^emergency, and whether the leo-islaturc Pwims
, « O F J UJ A H
d

m ight not do th a t which was necessary to meet an em ergency?

A nd assuming the answer to this question to be that the legis­
lature might do what was necessary, it was then argued that the
C ourt could not enquire w hether the emergency existed or not,
for of this the legislature was the sole judge. In fact, whilst
asking us to dismiss all political considerations, the learned
Counsel ask us to decide this case on th e ground of political
a t necessity. B u t we have nothing to do with any such question
all. Upon an emergency in wliich danger to life and property
is involved, the law as it stands, and without any alteration,
gives increased and exceptional powers to the executive. In
extreme cases the executive may suspend the operation of all
laws. B ut I am not aware th at such emergencies in any way
affect the powers of the leg islatu re; certainly not unless the
legislature were actually overawed.
^Lastly, it was said that whether.the Indian Legislative Council
can or cannot lawfully delegate the power to make laws, it had
done so for a long series of years, and a long list of Acts
passed between 1845 and 1868 has been handed in to us,
all of which, it is said, m ust be treated as instances of delega- ;
tion of legislative authority, if A ct X X I I of 1869 he m
treated. I t was then argued that Parliam ent must have known
what the legislature of this conn try had been doing, and, had it.
not approved what was done would have used language which
would have placed the illegality of tiiese proceedings beyorjd
all possible doubt. I iiave some difficulty in dealing with an
argum ent based upon an assumption of fact in a matter of
kind. I imagine that Parlifiraent, when legislating for India,,, is
dependent mainly upon such information as may be im parted to
it by the Secretary of S tate, or by individual members
h a te a special acquaintance with this country. T he posititf is,
in fact, substantially the same in this a« in all other cases
102 THE INDIAN LAW KEPORTS. [VOL. III.

1877 tlie subject of legislation is juot one of every-day experience. I f

Emfkkss tiie information thus obtained were not found to be sufficient,
t!- , ,
Buuaii and special inquiries would then be directed. W h eth er in the parti-
I5ook S i n g h , * ^ /
— cular case under consideration P arliam en t did really arrive at
I n XIXb
MATXBit OF a knowledge of the p articu lar provisions in these A cts which are
THIS P e t i t i o n ^ ^ i i i • -r i.
opBtiKAH now relied on, i am at a loss how to deterimi|p. 1 cannot,
'^sI ngii?^ however, think that we need en ter upon this inq:uiry. F o r even
if we presume knowledge, still to infer ratification from silence
would lead to consequences which seem to me inadmissible.
Upon one particular point Parliam ent expressly refers to the
practice here, and no doubt, therefore, was so far acquainted
with it. In s. 25 of the Councils’ A ct it is recited that
doubts have arisen as to the power to make laws for the Non-
R egulation Provinces, otherwise than at reg u lar m eetings of the
Legislative Council in conformity with the 3 & 4 W m . IV^, c. 85.
The section then goes on to give validity to laws th at had not
been so made. B a t it bas never been contended th at this recital
and this ratification have legalized the previous practice. On
the contrary, the accepted view has, I believe, always been th at
th e previous practice was p u t an end to by this very Act.
Speaking of this very practice in a M inute recorded in 1868,
S ir H en ry Maine says-— this system, of which the legality had
long been doubted, was destroyed by the Indian Councils’
A ct. Ho legislative authority now exists in In d ia which
is not derived from tbis S tatu te.” B u t if 1 the argum ent
of tacit recognition which I am now considei’ing be correct, how
is it possible to escape the conclusion that all the vague powers,
lialf legislative, half executive, previously exercised in the H on-
E egulation Provinces are valid and subsisting powers ? T he
argum ent seems here to stand on its strongest ground,
H or do the Acts contained in the list which was handed in
appear to me to afford (as was asserted) so many clear and
liafldisputed instances of a transfer of legislative authority,
I rmust guard m yself against being di’awn into a final ex-
pn^ssion of ppinion as to the construction of A cts •vyhioh are
n 01!fe properly before us. I m ust also observe that, the argum ent
on! extends to A cts passed prior to the Councils’ A ct.
It Ud» not bci contended th at the In d ian
YOU lit.] CALCUTTA smilBS. 103

legislature ean liave IncreaF its own powers by any teceBt ibtt
usurpation. Tins gets iftl' of the twQ A cts m ost relied Emphisks
on,— —namely A ct Ik.iX.III of 1861, s. 39, and A ct X X V of Bun.ui as»
1861, s. 44*5. jN’either o f these Acts had been passed wheu
the Counciis'* A ct received the Boyal assent, tliowgh, pro^ suTriri*op
bably, they were passed before the Couucils’ A ct came into ™„*pSSJa*
operation. I may also observe that these sections only confer
powers on the E xecutive Q-overnment to extend the A cts to
Hon-Regulation Provinces. B u t we hwow that aa to these
districts certain exceptional notions -were a t th at time held -whicli
are now exploded. A s to those A cts which were passed prior
to the Councils’ A ct becoming law, Act V I I I o f 1850,
s. 385, and A ct X I V of 1859, s. 24, also relate only to ''^an..
Eiegulation ProTinces. A ct V l l of 1845 only empowers the
Local Grovernment to make rules respecting the levying of water-
rates and so forth for canals which have been constructed at the
expense of Government* A ct X X X V of 1850 and A ct
X X X V I of 1857 give to the Local Gpvernmeut powers which
are not legislative, hut may be judicial. A ct X V I I I of 1853
seems to me merely to give power to fix the limits of cantonments.
A ct X V I I of 1854 reserves to the G overnor-G eneral in
Council powers which he would have had without this re­
servation. Act X X I I of 1855, A ct X X of 1856, A ct X X I V
of 1859, and A ct V of 1861 are more difficult to construe.
I t would certainly have been safer to tre a t them as what
are called General Clauses Acts, and for the legislature
in each case to have sanctioned th eir extension. But I
may observe generally as to the provisions which these
and many other A cts contain for the making of rules by
the Executive Government in conformity with the A ct,
th at we have the very high authority of the Judges who decid­
ed the case of Biddle v. Tariney Churn Barterjee (1), th at the
power to make such rules may be largely conferred without
any delegation of legislative authority. A ct X X I X of
1857 does not seem to me to confer any legislative powers at
all. A ct X X I X of 1858 was passed to meet a pressing

(1) 1 Tuy. & Bell, 390 ; s«e p. -104.

104s THE INDIAN LAW REPORTS. [VOL. Ill,

1877 emergency during the m utiny, a / i ought not, I th in k , to

Empukss be taken as a precedent. A ct ^21:11 of 1859, s. 5, and
Ewk Singh 1860, S. 9, are ill my opinion o f very doubtful
— validifcr. I am not sure that they liave ever been acted upon.
Xn XHEi
mattkr of I t is by no means easy to ascertain this, for it is one of the
OF Burah " peculiar results of this method of legislation th a t there is no
Singh, information upon the subject contained in the S tatu te book.
B u t this I know ,th at I have often heard the validity of these
provisions questioned. U pon the whole, the list of A cts p rior
to the p assing of the Councils’ A ct does not seem to me to
show any clear practice of transferring legislative au thority
which P arliam ent can be said to have known and recog­
nized.
Before leaving this list I m ust observe th a t it contains a num ­
ber of A cts which were evidently inserted under an en tire
misconception as to the n atu re of the difficulty which the Crown
has to m eet in establishing a claim now put forw ard on behalf
of the Indian legislature. I t has never been doubted th a t
the legislature m ay confer discretion of the moat extensive
kind upon the executive officers of Governm ent. I have
already adverted to this, and b u t for the misconception which this
list discloses, I should not have thought it necessary to advert
to it again. B ut it cannot be too clearly understood th at no
one denies th at the Indian legislature may en tru st to the exe­
cutive officers of G-overnment power, for examsple, to regulate
public processions and to keep order in places of public resort.
A nd the insertion of th is provision (A c t X I I I of 1856, s, 77)
in the list handed up only shows how entirely the question
before us may be misunderstood. No one would th in k of
challenging such a provision as this, as being beyond the powers
of the Indian legislature. I f my view of the law threw any
doubt upon the power of the Indian legislature to pass such, an
A ct as this, I should abandon it at once. B u t surely it is n o t
necessary to insist at length upon the difference between the
delegation of a power to keep o rd er in the public streets^ and
the delegation of a pow er to abolish all the existing C ourts of
justice in a large district, and to substitute such new onesc-as
the delegatus may deem advisable. A ll that can be said is, th a t
VOL. III.3 CALCUTTA SERIBS. 105
there may be a difficalfcj 211 some cases in sa jin g wlietlier the 1877
A c t amounts to a transfer of legislative power. There would be Kmpukss
preciselj the same difficulty iu <lr,n.wiivg an exact line between Crst^n asi»
the UincUoua of the legislative and the functions of the exe- "
cutive council— between the powers wfiicli Jw lges possess to MATTHB*np
make rules of procedure, aud the power whicli tlie j tlo not: pos- ™
sess to make rules of substantive law. B u t tfiis does not pro?e
tliafc these distinctions do not exist or th a t they are not to be
observed. W e are, as I have already pointed out, not now
called upon to deal with difficulties of this kind. I f we are ever
called upon to do so, I do not doubt that the utmost endeavour
■will be made to avoid impediug the useful action of the
legislature. I say with confidence that this C ourt (the only
one of wbicb I have a rig h t to speak) has always shown the
greatest care and circumspection in questioning the -varidifcy of
A cts passed by the Indian legislature. On the present occa­
sion it has been pressed very strongly that the view of the law
which I take would lead to the most disastrous consequences.
Nothing has been adduced ia support of this statement, which
appears to me quite unfounded. I would gladly have refrained
from expressing any opinion upon these Acts a t all, b u t not
being able to do soj I am compelled to admit th at there are
some provisions in some of the Acts passed by the Legislative
Council the legality of which, upon the view of the law to
which I adhere, may be doubtful. B ut I say distinctly that
there is no ground whatever for the sweeping assertion which
has been made that, on this view of the law , a very large pro­
portion of these Acts m ust be a t once pronounced to be illegal;
No such consequences followed from the decision of B id d h y ,
Tariney Churn Banerjee (1), aud my decision goes no further.
The only proposition of law which I lay down is, that the
Legislative Council of India cannot confer any power to legis­
late upon the L ieutenant-G overno/ of Bengal.
In my opiaion, our Jurisdiotic^ in the Gossyah and Jy n te ea h
H ills is now the same as it wag ^ f o r e the notification was issued
by the Lieutenant-Governor^, we ought^ therefore, to send

(1) 1 Tay. i I5ell, 39p.

106 THE INDIAN LAW REPORTS. [VOL. I ll,

1877 for the record o f this case^ in order to see w hether the appeal
Empkess should be adm itted.
B q is a h a n d

— ' K em p , J . —I concur in the judgm ent of M r. Ju stic e

In t h r _ ^ .
MATTKu OF M ark by.
THK PktITION■
OP B uuah
AND Book
Sin g h . A i n s l i e , j . — By 3 & 4 W ill. lY , c . S5, s, 43, th e
G overnor-General in Oouiicil hud power to make laws and
regulations for repealing, am ending, or altering any laws of
regulations whatever then in force or thereafter to be in force
in tine Indian territories of H is M ajesty or a n j p a rt thereof^ and
to make laws and regulations for all persons and all Courts o£
justice and the jurisdiction thereof, and for all places and things
whatsoever throughout the whole and every p a rt of the said
territories, with certain reserv atio n s; and by s. 45 all laws
made as aforesaid were to have the force and effect o f'A c ts of
P arliam ent,
B y 16 & lY V iet., c. 95, s. 2 2 ^ provision was made for the
better exercise of the powers of m aking laws and reg u ­
lations by the addition to the Council of the Q-overnor-Qeneral
of certain persons as legislative councillors 5 and by s. 23 it
was enacted that the powers of m aking laws or regulations
vested in the Governor-Q-eneral in Council should be exer­
cised only at meetings of the said Council at which a certain
num ber of members and certain particular members should b 6
present.
B y 24 & 25 Y ict., c. 67, s. 2 , the 43rd section of the A ct
of W illiam I T , and the 2 2 nd and 23rd sections of the A ct of
16 & 17 Viet, are repealed, but the 45th section of the form er
is m aintained in force, save so far as the same m ay be altered by
or be repugnant to this A ct, Ss. 9 and 10 provide for the
constitution of a liegislative Council, and s. 15 restricts the
power of making laws and regulations to m eetings of th e Coxm-'
cil at which a certain proportion of members is present 5 by s. 0
the Governor-G-eneral alone is authorised in certain cases to
exercise all the powers of the G overnor-G eneral in Council ex-^
cept the power of m aking laws and regulations. S. 2 2 re-enscts
the 'proviwous of s. 43- of the A ct of WiUium IV , w ith the
VOL. m .] CALCUTTA SEBIISS. IO7

addition tliafc the power is capable of being exercised at meet- 1877

iiigs of Coi’ncil for the jmrpose of making laws and r€gulatio»?j i*arKKs.i
a t wWch by s. 1 & 110 otlier busiuesa can be trauaactetl, and Bi’kah
except at •vrliieh by s. 15 no laws or regulations caii be made. '
S. 25 validates certain laws am! regulntions theretofore made 3«TTK*irri.F
otherwise than a t meetings of a Legishitive Council in re,spect
of the Nou-Eegiilatiou Provinces. By s. 23, the Governor-
G eneral, in cases of emergency, may make ordiwaiiees for
the peace and good government of the Indian territories of
H e r Majesty or any p art thereof, to have effect for six months
onlyj, and subject to be controlled or superseded by a law made
at a meeting of the Legislative Couacil. Ss. 34 and 45 res­
trict the power of making laws and regulations conferred ou
subordinate legislatures so th at as in the case o f the Council of
the Grovernor-Greoeral it can only be exercised at a meeting for
the purpose of making laws and regulations^, and in no case
can they modify Acts of the Imperial Parliam ent.
The 1st section of SS Y ict., c. 3, provides, that in respect
of any part of the territories under the (xov ernm eut or Adminifi-'
tration of any Governor, L ieutenant-G overnor or Chief ' Com­
missioner to which the Secretary of State shall from time to
time by resolution declare the provisions of the section to be
applicable, the Governor, Lieutenant-G overnor or Chief Com-»
missioner, as the paae may be, may propose drafts of regulations
for the peace and good government of such parta to the Gover­
nor-General in Council, which, on receiving his assent and being
duly published, shall have the force of laws made at a meeting
of the Legislative Council.
There is further a provision in 17 8s 18 Viot., e. 77,
8. 3, by which the Governor-General ia Council (with the
sanction of the Court of Directors of the E ast India Com­
pany) could by proclamation take under the immediate author­
ity and managemeiit of the Governor-General in. Council any
part of the territories under the Government of the E ast India
Company, and thereupon could give all necessary orders and
directions respecting the administration of such part, 01* other-
wis8 provide for the administration of the sam e; but this is
coupled with a proviso that tlo law in force at the time m &mh
108 THE IND IAN L A W REPORTS. fVOL. IIL

1877 part should be altered or repealed except by a law made by tlie

Empuess Governor-General in Council.
Burah and The Imperial Parliam ent has thus carefully declared the mode
in which legislation by the Government of India is to be carried
mattkr' op 0”* Ordinarily it is to be by laws made at meetings of the
Legislative Council of the G overnor-G eneral; under emer-
gencies and for the limited term of six months^ by the Governor-
G eneral alone : and in respect of particular places, to be defined
by the Secretary of State, by the Governor-General in (E xe­
cutive) Council on the proposal of the Local Government,
W hen A ct X X I I of 1869 was passed, the last provisions had
not come into existence. Tliis A ct was passed by the Governor-
General in Council under the general powers conferred by s* 22
of the Indian Councils’ Act, subject to the limitations specified
in that section.
The question is, "whether the supreme Indian legislature
did itself, directly or by necessary implication, exclude the
Cossyah and Jynteeah H ills from the territorial jurisdiction
of the H igh Court. I confine myself to this one m atter which
is all that we need consider for the purposes of the appeal
before us at the present stage of the proceedings. I under­
stand we are all agreed that such exclusion is within the powers
of the legislature.
I think it did not do so, but that it left the[ question of such
exclusion unsettled. The preamble and titlejof the Act speak
only of the Garo Hills j the Cossyah H ills &JiQ not mentioned
•until s 9 is reached, except that in s. 3 1 it is said th a t,
from the date of the notification provided for in s. 2 , A ct
Y I of 1835 (so far as it relates to the Cossyah H ills) shall
be repealed. W ith this exception, the first eight sections refer
exclusively to the Garo Hills. Then comes the 9 th section,
which empowers the Lieutenant-Governor from time to tim e, by
notification in the Calcutta Gazette^ to extend all or any of the
provisions of the other sections to the Jynteeah Hills, the N aga
H ills, and to such portion of the Cossyah H ills as for the
time being forms part of British territory.
This provision for a separate notification makes it clear *^hat
no *part of the territory mentioned in s. 9 is affected by
YOL. III.] CALCUTTA SEIZES. lOiJ

tlie Act in consequence o€ the Botificatloii provitieil for m

e. 2 ; and tirafc if fch-e A ct has a n j operation tiiere, it is
simply as the m u l t of tbe will of the Lieiitecant-G-overnor.
HwKklXML
Ih e repeal of so muck of Act: VI of 1833 as affects the
CossyaU Hills from the date whea the Aet came iiito force Man-rjt f<F
in fchG Grai’o H ills (uaiAely, the Isfe March, 1870) is of no OP BCKAIt
practical impoi’fcance; this much of the A ct was wholly ohso- Swsirl
lete. The Counts of Sadder Dewany and Hizaraub Adawlut,
to which powers of superinteudence had been giveu by the
A ct, had ceased to exist; and by the 9th section of the Higli
Courts’ Act (24 & 26 Viet., e. 104) this Court had beea
vested with the same powers that the former Courts had.
T hat the Government of India iu Legislative Oouucii should
take the opportunity of repealing this obsolete Act at the same
time that it was dealing with the law applicable to the Garo
Hills, is not to my mind sufficient ground for saying that the
legislature 5a September, 1869, made a declaration iu respect'
of the Jynfceeah, the Naga^ or the Cossyali Hills similar to tlmt
which it had made ia respect of the Garo Hills. As to these
last, certain provisioas were absolutely enacted, and all that
was referred to the Lieuteaattt-Gboveraor was to fix a day from
whieh they should take effect.
The preamble declares the expediency of dealing with the
Garo Hills, but says Dot a word about the others. The “notifi­
cation necessary^ to start the operation of the Act ia respect
of the Graro Hills has no effect in the Cossyah and other hills.
W hether or not the A ct shall ever come into oper^tioa at all
ill the lafcter, and if 8o, the exteat to which effect shtill be given
•to it> is h it entirely to the discretion, of the Lieutenant-Gkt-Fer-
nor. The 2 ad aad 9th sections are not fraiaed in the sam#
form. The first directs that the Act shall come iatd operation
and that the liieuteaaat-G-oreruor shull fix a date of com-
menceliaettt, a«d merely leaves tlie particular date to be deter-
milled by the Lieuteaaut-Govenior as is commojily done •vvheu
the ^rftroductiou of a new law requires some adjustment of the
adjzkiinisferative mrlchiuery.
Ttie fixing of suoli date is a m bisterial not a legislative Sict;
it the detenniuutiou whether the law shall be applied at all
15
310 THE INDIAN LAW TvEPOIlTS. [VOL. III.

1877 is not a ministerial, b u t a legislative act. As- this determ iini”

EMinusss tion-iyas not arrived at by the Supreme L egislatures b u t was
B(ji!A!i anij rem itted to the discretion of tlie L leutenant-G overiiorj it caii-
not be saitl th at the' legislature excluded the Cossyah ai)d
iiiTi-Ku'or’ Jyuteeah H ills from ,the jurisdiction of the H igh C o u rt; it
•Till'. PliTJTION
<
opip BBviiln^
{ri{,UI went 110 farther than to say th a t if at iiuy time th e L ieutenaiit-
A.{jiN
ND G Biiook Grover-iior sh all think fit, to ex'plude them lie may do so. I n
fact, the L ieutenaut-G overnor did ■not ayail him self of. the
power for two years after the passing of the' Ac-t, whereas lie
issued the iiotificatiou uuder s. 2 w ithin five mouths from
th a t time, and it rested entirely with him to determ ine wUethet
.he ever would aviail him self o f it, andl if so in what distriefc
and to what extent. H e m ight possibly have, determ ined
ouly to apply the provisions of s. 5, relating to the public
revenue aod rent, and of s. 7, as to cesses, in one tra c t,
while he applied the whole law in another. The, Suprem e
L egislature !could. have no know ledge befdrehaud of w hat
would be the results of the ;passing of the A ct. I t certainly
,cannot be said th at the four hill tracts nam ed in the A c t weire
all iu the satoe condition at the date o f the .passing of th«
Act o f 1869j 80 th at what was good law for one was necessai-ilvj
aipplicable to the otliers ; if this had been so, the fram e of
the A ct would have been ditferent from what it is. I f then
it was uncertain whether the jurisdiction of th is C o u it in th^
Cossyah H ills would ever be taken away • ait all, it cannot be
held th a t it was actually taken away by the Suprem e Legislit-
tu re in. the A ct of 1869, and th a t all th a t was left to th e
«•
Lie.uleuant-'Gpvernor' was to m ake arrangem ents accordingly
and to fix a date for the commencement of tlie operation df
the Act.
I t is cousequently necessary to ascertain w hether th« delseglk-
tiou of power to the L ieutenant-G overnor to rehiove the
Cossyah and Jy n teeah H ills from, the jurisdiction of .thisiiCour
by a legislative declaratiou was within the powers of. the
Legislative.C ouucil. Q n this point, the language rof .s. 22 of
the Councils’ A ct appears to me to leave no. il'lk'ubfe. ^
Power is given to the G overuor-G eiteral in C o u iic sr^ t
meStiiigs fox* the ,purj[js>se of making laws and I’ogulations py
TOL. i n . ] CALCUTTA SERIES. lU

a lte r an y laws and miilce laws for all persons, places, a iiJ C o u rts 1S77
o f ju s tic e in the In d ia n te rrito rie s of H e r M a je s ty : provided, Kmphkss
in te r alin^ th a t such laws sh all n o t in a n y w ay affect an y of HtntAn an6
>. ^ U o o k S in g h ,
th e provisions or the C ouncils A ct, ----
• I I'T If
T h e law u n d e r consideration is a law m ade u n d o u b ted ly MATTKIl OF
a t a m eeting of the L e g isla tiv e C ouncil of the G o v ern o r- UurAii'*^
G e n e ra l, an d so far a good la w j and if it does not fall w ithin
one o f th e seven* exceptions specified in s. 22, it has by th e
45th section o f 3 & 4 W ill. I V , c. 85, all the force and effect
o f an A c t o f P a rlia m e n t; b u t if it does fall w ithin one of
those exceptions, tiiis hist m entioned en actm en t gives it no force
a t all. S. 22 of the C o u n cils’ A ct h av in g been su b stitu te d
for the earlier.p ro v isio n s on the sam e„subject (3 & 4 W ill. I V ,
0. 85, s. 43, as modified by 16 & 17 V iet., c. 95, s. 23),
th e w ords o f s. 4 5 —‘‘‘all law s a n d reg u la tio n s m ade as
a fo re sa id ”— o n ly ap p ly to law s p ro p erly m ade u n d e r s. 22 of
th e C o u n cils’ A c t, and n o t w ith in one o f th e exceptions.
T h e A c t o f P a rlia m e n t req[uires that^ o rd in a rily , all laws
sh a ll be m ade o nly a t a m eetin g of the C o u n cil of th e G ovev-
iio r-G e n eral h eld for th e sole p u rp o se o f m a k in g laws and
reg u la tio n s, a n d a t .w hich c e rta in persons are p rese n t. W hen
law s are to be m ade o therw ise, th e re is a specific provision
according to th e n a tu re of the case, bufc these e x c ep tio n al pro-^
visions a re made! by P a rlia m e n t its e lf an d not le ft to t!ie dis--
cretio n o f the In d ia n le g is la tu r e ; and* it is an d has long been
an estab lish ed i*iile (s. 70, 3 & 4 W ill. I V , c. 85, and s. 6,
24 & 25 V ie t., c. 67) th a t the G o v e rn o r-G e n e ra l him self shall
n o t by him self, ex c ep t w hen specially au th o rised by P a rlia m e n t,
exercise the- pow er of m ak in g laV s and reg u latio n s. I t would
n o t be possible for th e L e g isla tiv e C ouncil validly to d iv est
its e lf of its ow n fu n ctio n s and tra n s fe r th en i to th e G overnor-
G e n e ra l alone, A law to such effe&t m ade by .the C ouncil
w o u ld violate th e provisions of both p. 6 an d s. 15, w liether
th a t law p u rp o rte d to vest th e G a v e rn o r-G e n e ra l w ith legislative
pow ers g e n e ra lly or Specially, an d w ould therefore, u n d er the
express w ords o f s. 22, be ultrai vires. B u t if this is so as to
th e ^ o v e r u o r - G e n e r a l, suii .e so as to the L ie u te n a n t-
G overaoi: of B e n g al w hich ap p ly ia* the
112 THE INDIAN LAW REPORTS. [VOL. III.

1877 one case for restraining the highest officer o f the Grown in In d ia
Emprkss from exercising legislative pow ers alone and for entrusting
BuiiAH AND those powers only to a Council to be exercised at a m eeting at
__ ’ which not less than a certain n u m b e r of members shall be
p r e s e n m u s t apply w ith more force to a subordinate officer;
and s. 15 is ns nitich violated in one case as in the other.
Therefore, in my opinion, the conferring on the L ieu ten an t"
G overnor power to remove the Cossyah H ills from the jurisdic­
tion of this Court was ultra vh'es.
I f it was ultra vires, this C ourt - is bound to take notice'
of the fact. Tlie power form erly exercised by the N izam ut
Adawlufc in this tract of country was given to this C ourt by
A ct of P arliam ent (s. 9, 24 & 25 Y ict., c. 104), and unless it
has been validly taken away we are bonnd to exercise it.
No doubt the G rovernor-G eneral in Council, w hatever con­
struction be p u t on the section referred to, has power to p u t
an end to this C ourt’s jurisdiction in this tract of country,
b u t no other authority in India can do so. B u t if the G over-
nor-G eneral in Council wishes to do it, he m ust proceed b y
the exercise of his legislative powers as created or declared
by the Councils’ A ct, and in no other way. The H ig h C ourts’
A ct provides no new mode of legislation, b u t makes the!
jurisdiction of the H ig h C ourts subject to the legislative powers
of the G overnor-G eneral in Council, which) m ust be looked
for elsewhere. I f he shall proceed in any 'other w ay, this
C ourt is constrained by the A ct of Parliament^ to continue the
exercise of its jurisdiction.
B u t it is said that this view of the provisions of s. 2 2 of
the Councils’ A ct is at variance with that taken through a
long course of years, as shown by a series of enactm ents, in
which a somewhat sim ilar mode of supplem enting the action of
the Legislative Council has been adopted.
I think it unnecessary now to express any opinion as to th e
■validity of the Acts referred to. A ssum ing them to have been
validly enacted, their existence does not support the argum ent
that the mode of legislation adopted in A ct X X I I . of 1869 Is
only th a t which has been dopted w ithout objectk)u i
■and"that as it cannot b a kis mode of legisiation
VOL. I l l ] CALCUTTA SERIES- I 33

lia« escaped tlie observation of t!ic Imperial Fai*liament3 it lias IS7T

tiie warrant of a tacit approval. E-MPBKSS
I t appears to me tiiat a distinction must be drawn between Burah as»
provisions by wMeh the carrying out of the declaretl decisions
of the Supreme Liegislatiire is fiirtheredj and provisions wliich
give a power to act iudependeBtly of tl\e discretion, of tlie ™J i S 'h
Council of the Oovernor-General. As itti example of the one, I
may take s. 385 of A ct V I I I of 1859, or s. 4 4 5 , A ct X X V
ot 1861. These are laws intended to be eventually of universal
application in B ritish India (the latter, re-enacted in^ X of
1872, 13 now, with very few exceptions, the only law on the
subject); the actual introduction of these enactm ents was in
certain tracts of country postponed, and .made to depend on the
discretion of the Local Government, The Supreme Legislature
had considered tliese laws and adopted them as laws to be even­
tually in force everywhere ; b u t instead of declaring that they
were to take effect everywhere a t once^ it was content to declare
the ultimate law and leave the Local Governments to advance
up to this standiird as fast as they conveniently could. W hen a
L ocal Gofernm ent declared such a law to be in force, it was
merely parting with a power of delay conferred upon i t ; it did
not make any law ; the law introduced was, the law made by the
Governor-General in Council with the express intention that it
should become the law of the particular tract of country io due
time. B ut A c tjX X H of 1869 does not stand on precisely the
game footing. There was no expression of a determination by
or desire of the Legislative Council th at eventually the Jynteeah
H ills, the Naga H illsj and the Cossyah H ills should he reduced
to the same condition as the G aro H ills; a t the most it can paly
be said that there was mi expectation that such a measure might
become necessary. B u t an attem pt to provide beforehand, for the
eontingency of such a state of things arising in the former as
then warranted the introduetipn of the measure into the 0 aro
H ills, does not amount to a determiiiation th a t this was the law
which it was desirable to put into force iu all these hill tracts;
had this been the intentiou of .the legislature, I should have
e:spected it to have been expressed in plain language.
The provisions of s. 39, A ct X X U I of 1861, do n o t‘affect
H i THE .mDIAlSr LAW REPORTS. [VOL. in .’

1877' nay View of tliia m atter. T his section allows a L ocal G overn-
Empukss m eat, with the previous saiictioTi of the Governor- General.
Buuah a n d in Councils to annex any restriction, lim itation, or proviso it
— ’ may think proper when extending the Oode of C ivil Procedure
MArrKu'oF to any territory not subject to the general regulations; but this-
Bokah””^ is m erely another form ofdelaying the full extension of the C o d e.;
^l^xNGiu^ So far as the Code obtafns operation, it is still, because the ex -'
tension is, pro Canto, a carrying out o f the intention of the supe­
rior leo-islature th at this shall be sooner or later the law in tlie'
pai'ticy.Iar tract of country. As I read the section, no power is;
given to amend the law its e lf; it is only a power.to keep some
portion in abeyance or to make its operation contingent on some­
thing external to it, which again is only an other foriil of post->
poning its full operation,
A very large number of the Acts referred to in the scheduled
Submitted to us of Acts containing delegation of j)owers is of the,
same character. The subject of m any is lim ited, b u t the mode of
legislation is substantially the same. T he general law on .eactii
subject is propounded by .the legislature ; the g ra d u a l’applioa-^
tio a of it is entrusted, to some authority named in th% A ct. In
form," it may be th at the law, is made for one or more- Bamedj
members of a class with power to extend it to others; b u t in effect,:
this is.m aking a law for the class with a power granted: to th e
Xiocal Government to introduce it more or lesa.ra.pidly as mayi
seem fit. T he distinctive featu re in m y 6 pinim| is,, th at in eaoli;
o f these, cases the law .is.constructive by additio|*i to, or remodel-;
ling of,, the S tatute law then, existing as to each^class of subjects
m ider the directly exercised discretion, of a legislative body;
whereas* A ct X X I I of .1869, as far as we are now concerned-
with i t , is destructive, and operates m erely to terminate. the»
ojperation of established laws. • . _ ■ ^
' ■T here is another class of A cts in which there is apparently,
clear delegation of legislative pow en I refer to A cta which
Contain a provision giving power to make rules or.byer^laws, ai^|l
to impose taxes or fix fees and charges;- b u t these ;4ire clearly
distinguishable from suck -an A ct ^is A ct X X I I of 1869, so;far
as we are eoncerned with it now, which is only so ta r as it gi^es
powei' tcK the ■Lieuteuan-tKpovernor . to repeal s. 9 - .of 24 ,& 25
.V0L;III.3 CALCUTTA SBMIES. 115

e. 104. . W hether tlie powers conferred in these A cts to W77

■make Tules and bje-law s can in al! cases be defeinledj is a m atter 'EsfptsK*®
■I need not discuss. A ll legislation of this class is aubonliiiate Bubah
•to, and ill furfcheranoe of^ tli*e defined object of eacli particular
^ Is TSE
mattkm of
. Tiie case of B id ih v» Tarinei/ C hirn Bcmerjee (I) at p. 409,
•iiiid agaiu at p. 47.9 of tlie report, is a u th o ritj for iKililiijg th at, ^SinghI*
•wliile the validity of rules which can be brought within the
^defiiijtioii of m inisterial acts is undoubted, the validitj of other
-rules such .as therein meuti 0ne(l,—namely, I’ules impostog a
•penalty directly, o r granting power of compelHog discovery,—*■
■is open to grave doubfc, if indeed the case does not go so far «
to rule that they ar.e absolutely invalid. I t is foreign to my
present purpose to discuss that case ; it is enough to show, th at
Ahe delegation relied on does not stand unquestioued, but that
thera is Tery high authority for doubting its validity. As I
have referred to this case, I tak e the opportunity of observing
■that it seems to me strongly to support the earlier p art of my
judjjfmenl;. A t page 406 the learned C hief Justiaej, Sir
liftwrence Eeel, observes,— The legislature of India, though
it possesses lai’ge legislative powers, is still a limited legislature,
iaud. exercises a delegated authority of makiing laws. Iudepend*«
la d y of the territo rial liraita assigned to its power of miifcwig
Jaws, .there are other limits imposed which the legislature must
not exceed; aiul it is the province ^of the Courts o f Justice #f
the ebuatry to decide oa the legality of Acta of the legislatarej
if a suit be Instituted to decide w hether the legislature has oi?
>K

has not exceeded the limits within wlueh it may legislate.’-

iAgaih, at page 479, as I understand the judgm ent, he assumes
;as. undoubted th at delegation of legislative authority by the
Ijidiau-legislature is beyond its powers, the question being in
each case whether there has or has not been such delegation.
;: I ’h e . A cts which are most.a^JilegQ'US'ta Mi® Aot'sinder consi«
deration, so far us we have now' to deal with it, are few, in num­
ber ; they have been termed deregulati- ^^zing Acts.
A ct X X I ,of ’1845 was, passed while the 3 &. 4 W ilh -lY?

(l^l.Tay.i:JBeii,-3®a.
116 THE INDIAN LAW REPORTS. [VOL. III.

1877 c. 85 was in force ; the power of legislation was then vested

Empkkss in th e Goveruor-General ia Council. This A ct tloes not m ake
^auAH and any transfer of that power, b u t sim ply declares th a t the same
— authority in which the legislative power rested, viz., the G-ov-
MArrKK^oF ernor-G eneral in Council, may by order iu Council do certain
things. T h e same rem arks apply to A cts V I and X I of 1846.
A fter th e passing of 16 & 17 V iet., c. 9 5 / we come to
the Sonthal D istricts’ A ct X X X V I I of 1855. T his differs -in
form from A ct X X I I of 1869, and is distinctly a legislative
declaration by the G overnor-G eneral iu Council. The L ie u -
teuant-G overnor has, by s. 6, to give effect to it by proclama­
tion ; but this obviously is a m erely adm inistrative action. T h e
power to allow an appeal iu cl. 1, s. 4, notw ithstanding
the declaration in th at section that all decisions and sentences
passed according to the provisions of the A ct are final, is a power
to relax the stringency of the A ct iu the direction of the general
law.
T he C hittagong H ill T racts’ Act X X I I of 1860 approaches,
in some respects, more nearly to the form of the A ct under con­
sideration. "Whether any of its provisions are open to question
is beyond the scope of m y present enquiry. So far as th e
abolition of the jurisdiction of the C ourts of civil and crim inal
judicature is concerned, the direct and undoubted au th o rity
of the G overnor-G eneral in Council has been exercised. In the
R ohilkhund A ct X I V of 1861 there is a slight’change of form.
W h ile the Supreme L egislature makes a direct declaration ia
respect of certain tracts specified iu the schedu,lej it gives power
to the L ieutenant-G overnor, N orth-W estern P rovinces, to
define the portions of P erg u n n as J u s poor and K ashipore in the
D istrict of Moradabad, which are to be subject to the A c t ; b u t
it does not give liim power to iuclud.e these pergunnas or not a t
his pleasure and at such time as he may think fit. T h ere is no
provision for more than one proclamation giving effect to the
A ct. This A ct approaches to, ^but does not reach, the form of
A ct X X I I of 1869,
A ct X X I V of 1864 is wholly different; it validates rules
previously made. Aa far as it empowers the Local Govermifenfc
to extend any B egiilatioa or A ct then iu force, it may be said to
 TOL- ]II.] CALCUTTA SERIES.

g iv e leg islativ e p o w er; b u t tliia is not suoh a pow et aa is now in 1877

question, aud w h eth er sucJi pow ers h av e been rig h tly or w rongly
g iv e n is a m a tte r on which I express no opinion, BuiJ ' h anj>
O n th e wUoIe^ th en , I am of opinion th at the ju risd ic tio n of Sinch.
th is C o u rt in the C ossyah and J y n te e a h H ills has n o t been validly
ta k e n aw ay , and th a t we are bound to en tertain th e appeal. ^
AUD Book
SiHGH,
M a c p h e r s o n , J . — In m y opinion th e G o v ern o r-G en eral in
C ouncil has pow er by legislation to rem ove from the ju risd ic tio n
o f th is C o u rt a d istric t o v er w hich the C o u rt was d eclared by
th e L e tte rs P a te n t to have ju riad ictio n . T h a t pow er seem s to
me to be expressly conferred by b. 9 of 24 & 25 Y ie t.,
c. 104,—-w ithout w hich section le g islatio n on th e su b ject w ould
be w holly pro h ib ited by th e proviao in 24 & 25 V ie t., c. 67,
s, 2 2 , th a t the Grovernor-Greneral in C ouncil shall n o t have
th e pow er o f m ak in g any law w hich shall repeal o r in a n y
w ay affect any o f th e provisions o f th a t A c t or o f a n y A c t
passed in th e sam e session, or th e re after to be passed, in anyw ise
affecting H e r M ajesty 's In d ia n te rrito rie s or th e in h a b ita n ts
thereof.
T hese tw o S ta tu te s, 24 & 25 V ie t., c. 67 and c. 104, w ere
passed w ithin a few days o f each o th e r (one on the 1 st of
A u g u s t, and th a o th e r on the 6 th ); and I th in k it clear th a t it
w as in ten d ed b y ss. 9, 1 1 , and 13 of the la te r A c t to pre­
serve to th e G roV ernor-G eneral in C ouncil certain leg islativ e
pow ers w hich otherw ise, by reason of th e proviso in s. 2 2
o f c. 67, th e GoV'ernor-Greneral in C ouncil would n o t have
had. • A consideration o f the term s o f th e H ig h C o u rts’ A c t
w ill show th a t th e m a tte rs covered by the th ree sections, 9, 11,
an d 13— in w hich alone th e leg islativ e pow ers o f the G o v ern o r-
G e n e ra l in C ouncil are saved,— are th e only m a tte rs re la tin g
to the H ig h C o u rt in resp ect of which the G o v ern o r-G en eral in
C ouncil was in ten d ed to have leg islativ e powers. A n d the
express saving of these pow ers in ss. 11 and 13 w as n eces­
sary , because those sections re la te to m atters n o t in clu d ed or
d e a lt w ith in s. 9. T h e G o v ern o r-G en eral in C ouncil has no
legiiflatlve power in relatio n to th e H ig h C o u rt save w hat is
reserved to him by 24 & 25 V ie t., 104; and the L e tte rs
16
118 THE INDIAN LAW EEPORTS. [VOL. III.

1877 P aten t could give mo such power not already given by th a t

E m press S ta tu te .

Burah ANi> Altlion ffli I do not doubt that the conclusion arrived at in
B o o k S in g u . , _ ^ , , , , •
— J/e a rg /s case ( I ) was correct, I do not concur in the construction
lie XHl5 "
MATTEROF there put upon these two Statutes, I dissent wholly from the
theory, which seems to be the basis of the late C hief Ju stic e ’s
decision in M eaves's case (1), that a declara iion of jurisdiction con­
tained in the L etters P aten t can be affected by legislation by the
G overnor-General in Council, because the declaration in the
L etters P ate n t is not a provision of the A c t” within the
meaning of s. 22. In my opinion it is a provision of the
A ct within the meaning of s. 22, and as such tbe legislative
powers of the G overnor-G eneral in Council would be wholly
barred in respect of it were those powers not given or reserved
to the G overnor-G eneral in Council by s. 9 of the H igh
Courts’ Act. I t is only so far as legislative powers are expressly
given or reserved by 24 & 25 V iet., c. 104, th a t the
G overnor-General iu Council has any legislative authority over
th e jurisdiction, &c., of th e H ig h Court. S. 9^ however,
does seem to me to give the G overnor-G eneral in Council
plenary powers of legislation as regards the jurisdiction. F o r I
read th at section as declaring th at the C ourt shall have and
exercise all such civil and other jurisdiction, original and ap­
pellate, and all such powers In relation to the administration of
justice in the Presidency, as the L etters P aten t shall direct: and
save as by the L etters P a te n t otherwise directed, and subject
and without prejudice to the legislative powers of the Governor-
G eneral in Council in relation to the m atters aforesaid (i.e., all
the m atters mentioned in s. 9, W'itli which the Crown is
authorized to deal iu the L etters P a te n t), the Court shall have
and exercise all jurisdiction and every power, &c., in any
manner vested in th e abolished Courts (Supreme and Sudder)
of the same Presidency. The section, in short, vested iu the
new C ourt all the jurisdictions and all the powers of every
description of tb e two abolished Courts^ except so far as those
jurisdictions and powers m ight be altered or taken away by

(1) 14 B. L R,, 106.

VOL. Ill,] CALCUTTA SEEIEa Hg

the Letters P ate n t or by subsequent legislation b j the Gover- 1877

uor-Greneral in C ouucii., Esipress
This coiistructiou of the S tatute no doubt leads to the con- Bcuah and
elusion that the Grovernoi-Geueral in Couucii has power to alter ”— '
wholly, and to take away, the jurisdictiou of the H igh Court,— MAmS’or
and furtherj th at the Governor-General in Couucii is tlie only
authority in lu d ia by which the j urisdiction or,powers of this Court ^sisgh?^
can be altered or in any way affected. Never tlieless, it appears to
me to be the rig h t construction; and it is the construction which,
as a m atter of fact, was invariably put upon the law up to the time
of Mearei-^s case (1). I f it be the right eoustrucfciou, it cannot be
(^[uestioued th a t the Governor-General in Couucii could legally
remove the Cossyah and Jy u teeah H ills from our jurisdiction.
B u t it is argued that if the Governor-General in Council hud
this power, it lias not been legally exercised, inasmuch as the
Governor-General in Couucii did not attem pt or profess to
remove the Cossyah and Jy n teeah H ills from the jurisdiction of
th e H igh Court, but m erely passed an A ct authorisiog the
liieuteuant-G overnor to remove them if he at any tim e should
think fit to do so. A nd it is contended that a removal by an
order based on the authority thus given to thfe L ieutenant-
G overnor of B engal is not legal.
I t is an undeniable fact that the Governor-General in Couucii
'd id by A ct X X I I of 1869 empower the Lieutenau t-Qovernor
of Bengal at Ms |jleasure to extend the provisions of the A ct to
the districts in question, and that by virtue of the power so con­
ferred on the L ieutenant-G overnor those provisions have since
been extended in the m anner contemplated.
The first question which here arises is, whether, the Governor-
G eneral in Council having j>assed such au Act, this Court'can
decline to reeogniiie or bo bouud by it, on the ground th at itw as
ultra vires of the Go vernor-General in Council to legislate in
such a fashion,— i. e., to delegate to the Lieutenant-Governor of
Bengal functions which were expressly vested in the Governor
G eneral in Council. In considering this m atter, it is necessary
to go back a little and see what the legislative powers of the
Go#ernor-General in Couucii really are,
(1) 14 E . L . R ., 106.
120 THE INDIAN LAW REPORTS. [VOL. IIL

1B77 The Statute 3 Sc 4 W ill. IV , c. 85, s. 43, gave the

Empress Govemor-Greueral iu Couucil power to jmake laws for repealing
Bdrah anb or altenug auy laws or regulations whatever then m force or
Book^noh. in force (iu British Incliaj &c.), and for all
MAmn^oF persons of whatever nationality,—and for all Courts of justice
™oi'VnRjii^^ vvhether established by Royal C harter or otherwise, and the
Jurisdiction thereof,— save and except that the G overnoi-G eneral
in Council was not to have power by legislation to repeal or alter
auy of the provisions of th a t A ct (3 & 4 W ill. IV , c. 85)
or of any A ct to be thereafter passed affecting the E ast India
Company or the said territories, or the inhabitants thereof, &c.
This power of legislation was (s. 44) subject to the X'iglit
of the Court of Directors to disallow any law wliich m ight have
been passed, wliich was thereupon {i. e., if disallowed) to be
repealed. B y s. 45 it was enacted,— and this section stands
unrepealed to the present day,^—that all laws made as aforesaid
[i. e., by the Governor-G'eneral in Council under the powers
given by that Act) shall be of the same force and eiFect w ithin
and tbrougliout tbe said territories as any A ct of P arliam ent
would or ought to be within the same territories, and shall be
taken notice o!' by all Courts of justice whatsoever within the
same territories iu the same manner as any public A ct of P a r ­
liam ent would and ought to be taken notice of: and it shall
not be necessary to register or publish in any Court of justice
finy laws or regulations made by the said GroVernor-G-eneral in
Council.”
By the Statute 16 & 17 V iet., c. 95, the Council of the
(xovernor-General for legislative purposes received a new con­
stitution: b u t the legislative powers of the Council and the
effect to be given to its Acts rem<ained as they were under
S tatute 3 & 4 Wm. IV , c. 85.
The Statute 17 & 18 V iet., c. 77, s. 3, empowers the
Governor-G-eneral in Council, with the consent of the Home
authorities, from time to time, by proclarnation, to take any
district under the immediate m anagem ent of the Governor*
General of India in Council, and thereupon to give all necessary
orders respecting the adm iim tration of such district or othexwise
to pTovide for the administration thereof. But it is expressly
VOL. III.] CALCUTTA SEP.ffiS. 121

provided that no law or regulation in force in any sncIi districfc 1S77

at the time it is so taken under the immediate management of Emi-uess
t?
the G-overnor-Greneral of India in Council shall be altered or Birjun a.w
repealed except by law or regulation made by the G-avernor- *
■General of India in Council. matteu*of
Then came the Indian Councils’ Act, 24 & 25 Ticfc.j c. 67,
wliich again gave a fresh const!tutiou to the Gunnell of the
Crovemor-G-eneral for making Laws and Eiegulations. Tiiis Actj
however, to describe it generally, left tlie legislative powers of
the- Governor-General in Council unaltered, save that local
legislatures were re-established and certain m atters appertain­
ing more peculiarly to the executive were declared (s. 19)
not to be cognizable without the previous sanction of the Gover­
nor-General. The legislative power, which was taken away
from the Presidencies o f , Madras and Bombay by 3 & 4
W ill. IV , c. 8, was, in a modified degree, restored to them ;
and the establishment of a local legislature for Bengal was
authorized. The legislative powers conferred on the Governor-
General in Council by 3 & 4 W ill. lY , c. 85, were left unim­
paired, but under the new A ct, 24 & 25 Y ict., c. 67, were to
be exercised for the most p art in matters of more general
administration and such as affected the interests of the Indian
Em pire at large. In the preamble of the Councils’ A ct it is
m erely recited th at it is expedient th at the provisions of former
A cts of Parliam ent respecting the constitution and functions of
the Governor-General in Council should be consolidated^ aoid in
certain respects amended. The second section repeals ss* 40,
43, 44, 50, and certain other sections of 3 & 4 W ill. I T , c. 805
and it is declared that all other enactments then in force with
relation to the Council of the Governor-General • of India or
to th e Conncils of tlie other Presideueiea shall continue in force,
‘^‘'save so far as the same are altered by or aro ropugMajit lo this
A ct.” S. 22 declares the powers, of tlie (Jovcrnor-GeJieral in
Council as regards the subjects of legislation. I t is, in truths
a, mere re-enactment pf the repealed s. 43 of 3 & 4 W ill,
I V , 0. 85, altered formally and with reference to the changes
whi<«;h wore being made in the constitution of the Council. I t
gives the Goveruoi-Generai in Couucil,power to repeal or alter
122 THE liSTDIAF LAW REPORTS. [VOL. IIL

1877 any existing law of ■whatever kind, save th at it expressly pro-

EaipiiKss vitles that the GroveruoL'-Geueral in Council shall not have the
Bubah and power of making laws or reg’ulatious which shall repeal or iu
BOOK^GH, q£ Qf 4 & 25 VlCt.,
MATTEP-^oF c. 67) itself or any of the then unrepealed sections of 3 & 4
Will. IV , c. 85, and 17 & 18 V iet., c. 77, and certam other
Statutes named,—and save also th at the G overnor-G eneral in
Council shall not have power to make laws which repeal or
affect any provisions of any -Act passed in. th e then present
Session of Parliam ent, or thereafter to be passed^ in any wise
affecting H er M ajesty’s Indian territories or the inhabitants
thereof.
The 3 & 4 W ill. I V , c. 85, rem ains in forces except so far
as it is expressly repealed or is repugnant to the Gonncils’ Act,
S. 45 is still unrepealed, though the Councils’ A ct repeals
the two sections imm ediately i>recediug and s. 50 which
follows it. A nd there is nothing in s. 45 repu g n an t to the
Councils’ Act, Therefore it is clear th at s. 45 is still in
force, and applies to all laws made by the G overnor-G eneral in
Council under the Councils’ A ct. O f course an A ct passed by
the G overnor-G eneral in Council in contravention of s. 22
of M & 25 V iet., c. 67, would not be an A ct duly passed,
the legislative powers of the G overnor-G eneral in Council being
by that section expressly barred in such cases. B u t an A ct
passed by the G overnor-G eneral in Council ur^der the Councils’
Act, and not falling within any of the prohibitions therein
contained, seems, under s. 45 of 3 & 4 W iil. IV ., c. 85, to
have the same effect here as an A ct of P arliam en t would or
ought to have : and it m ust be tak en notice of by us in the same
manner as any public A ct of P arliam ent. I f this be so, this
C ourt has no power to question the authority of the Governor*
G eneral in Council, if once satisfied th at the A ct is not w ithin
any of the prohibitions of the Councils’ Act. F o r there is no
doubt th at, had a public A ct of P arliam ent been passed in the
same terms as A ct X X I I of 1869, we should have been bound
to accept it without question.
B u t, if it be open to me to question the authority of®the
G overnor-G eneral in Council to pass a law which does not fall
VOL. Ill,] CALCUTTA S'ERIES. 123

■within any of the restrictive provisions of 24 & 25 V iet., c, 67, 1877

I am Tillable to say tliat the Cossyah and Jy n teeah Hills have not Empuess
heen legally removed from the jurisdiction of the H igh Court, Bl' rah ahi>
B y 8. 4 of the A ct, the Governor-General in Council did —^
expressly remove the G aro H ills from our jurisdiction, leav- matter of
ing it, however, to the Lieutenant-G overuor of Bengal to fix “ "'f
the date from which the reraoval was to have effect. Then
(ss. 5—8) the G overnor-G eneral in Council practically left it
to the L ieutenant-G overnor to provide, as he should think fit,
for the administration, in all respects, of the district, and gave
authority to the L ieutenant-G overnor to extend to the Garo H ills
any law, or any portion of any law, then in force in the other terri­
tories subject to the Lieutenant-G overnor, or which might there­
after be enacted by the Council of the Governor-General, or of
the Lieutenant-G overnor, for making Law s and Regulations.
A s regards the Cossyah and Jynteeah H illa, after, in s, 3,
repealing A ct V I of 1835 (which repeal, it may be noted, did
not of itself in any way affect the jurisdiction of the H igh Court
over those H ills), the Governor-General in Council by s. 9
empowered th e L ieutenant-G overnor from time to time to
extend, mutatis m utandis, all or any of the provisions con­
tained in the other aections of the A ct to the Cossyah and.
Jynteeah Hills. I t is left to the L ieutenant-G overnor to say
■whether these districts shall be removed fi’om the Court’s
jurisdiction or not,— and also, if removed, what law shall be
administered in them. No doubt the whole future position of
the Cossyah and Jy n teeah HLills is left absolutely to the discretion
of the Lioutenant-G overnor. F o r all th at is really decided by
the G overnor-G eneral inO ounoil is, that it is fit and proper th at
the Cossyah and Jy n teeah H ills shall be removed from the ju ris­
diction of the H igh C ourt if the Lienteuant-G ovem or shall
think it rigiit at any tim e th at they shall be so removed. No
other m atter is actually decided by the Governor-G eneral in
Council than th at it is right th at these districts shall be made
over wholly to the Lieutenant-G overnor’s control, if and when
lie chooses to take them over. I t is impossible to deny th at this
is pfSactically an entire delegation to the L ieutenant-G overnor
by the Governor-General in Council of the legislative powers of
12 Jj THE INDIAN LAW REPORTS. ’ IVOL. III.

1877 tlie Coun cii. B u t on wliat preciBe grounds can I say that s u c h
Empiikss <lelegntioii is illegal? The A ct does not fall ^Yithin any of the
Borah ,vnp restrictive provisions of the S tatute 24 & 25 V iet., c. 67; and
-—‘ " ’ there is no positive law which prohibits such delegation. T he
mItimcTop question is really cue of intention,— what powers did . the
™oF BTmliT*'* Supreme Legislature intend to confer on the subordinate legia-
lature, the Council of the G overnor-G eneral of In d ia for the
purpose of making Laws and Regulations?
Reading the Councils’ A ct with the H igh C ourts’ A ct 24 &
25 Viet,, c. 10-1, it is sufficiently clear that the intention of
the Supreme L egislature was, th at tlie jurisdiction of the H ig h
Court should remain as defined in the Statute c. 104, except
so far as otherwise declared by the L etters P a te n t or by the
legislative enactments of the G overnor-G eneral in Council.
And it is fairly argued that if the Statutes gave no power of
legislation in sucli m atters to any authority in In d ia save the
Governor-General in Council, it could not have been the inten­
tion that the Governor-G eneral in Council should by legislation
confer on the Lieutenant-G overnor those powers which it was
clearly intended should be exercised by the G overnor-G eneral
in Council alone.' B u t although I do not doubt that the Gov­
ernor-General in Council is the only authority in India who
can by legislation affect the jurisdiction of this Court, la m not
prepared to say that if the Legislative Council of the G overnor-
General passes an A ct declaring th at such rules affecting the
jurisdiction as the L ieutenant-G overnor may make shall have
the effect of law,, and if rules affecting the jurisdiction are there­
upon made by the Lie u ten an t- Go v ernor, the alteration of the
jurisdiction would be otherwise than by the G overnor-G eneral
in Council in exercise of his legislative powers. F o r if we
hold tiuit the Governor-G eneral in Council must, if the object
is to affect the jurisdiction of this Court, do it by the direct
act of the Council assembled for the purpose of m aking la w |
and regulation.s, and cannot do it through authority given by,
that Couuflii to the L ieutenant-G overnor or any othei* fujiction-,
ai*y, we are in fact legislating and imposing a restriction on th e
legislative powers of the Goveruor-Geaei'al in Council
is liot imposed by the Statute. .
VOL. IIL] CALCUTTA SERIES. 125

Tiiere are, as I have said, ^rounds for arguing th at the iiiten- tsn
tion was that legislation to affeot this C ourt’s jurisdiction should EMint«,<4s
be by the Govevnor-General in Council directly and not by Biihah Ana
<lelegatioTi. On the other hand, the Statute does not expressly
say so; and it miajht have been expected to say so if such had mattkuwi?
really been the iuteiitioB, inasmuch as for years prior to the iS T i?’'*’
passing of the Statutes of 24 & 25 V ie t, powers of legts- '^Sisqh^^
lation had been delegated repeatedly by th e Governf>r-(xetteral
in Council to the L ieutenant- Grovernor and other executive
officers, and it may he .presiuued that in framing these Statutes
provision would have been made against a repetition of the evil,
had it been deemed in fact to be an evil.
A ct X X I I of 1809 is certainly an exceedingly strong in­
stance of legislation by the G-overnor-General in Council in a
m anner amounting to a delegation to the Lieutenant-G overnor
of Bengal of the legislative powers of the Council. Still
powers of a similar nature (though usually not so extensive)
have constantly for years past been given by the Governor-
G eneral in Council by legislation to various executive author­
ities . I t is very difficult, for example, to distinguish in
principle the present case from th a t of the Civil Procedure
Code ( Act V I I I of 1859), which by s. 385 took effect in any
p art of the territories not subject to the general regulations
only when extended thereto by the G overnor-General in (Exe­
cutive) Council or Ifj the Local Government to which the parti­
cular territory ha >pened to be subordinate. In like manner,
the first Criminal Procedure Code (X X V of 1861) took . effect
in iN’on-R egulationD istricts only when extended to them by the
G overnor-G eneral in (E xecutive) Council or by the Local
Goveram ent to which the territ-ovy was subordinate. I t is sub­
stantially neither more nor less than a delegation of legislative
authority to say to the Lieutenant-G overnor or any other
officer,— Here is a new Code; b at it is left wholly to yo u r
discretion to decide w hether—and if a t all, when—it is to be
applied to 8uch and such territories now tm der _your govern­
ment.” The principle in these and other such caaesia really the
same in the ease now before us. Y et, such delegations are
fr e q u e n t
17 ■
126 THE INDIAN LAW REPORTS. [VOL. III.

1877 Altogether, I do not think th a t the passing of A ct X X I I of

Empjikss 1869 was absolutely ultra vires of the Governor-General in
Burah a n d Council. And after the course of practice which undoubtedly
S in g h . * f
-— has been followed in this m atter for very many years, i snouicl
MAiTEU OF certainly decline to declare such an A ct to be beyond the powers
of the Governor-General in Council, unless I considered it clear
beyond all question th at it was so.
I think, therefore, th at we have no jurisdiction to entertain
this appeal.
Various important points which I have not touched upon have
been discussed in the course of the argum ent. B u t in the view
which I take of the position of the L egislative Council of the
Governor-General with reference to this Courtj it seems to me
unnecessary to go further into them.

PoNTiFEX, J . — I concur in the judgm ent of Mr. Ju stice

Macpherson.

J a c k s o n , J . — Assenting, as I do, to the decision in Feda

MosseirCs case (1), and being therefore of opinibn that the juris-
d.iction of the H igh Courts can be affected by legislative action
of the Governor-General of India in Council, and by no other
authority ia this country, I have only to consider whether our
jurisdiction has been validly taken away, and whether, if we
should think otherwise, we are competent to give effect to our
opinions.
I t is contended on behalf of the Crown^that the jurisdiction
of this Court over the Cossyah and Jynteeah H ills was p u t an
end to by a notification of the Lieutenant-G overnor of Bengal,
dated 14th October, 1871, which notification purports to .have
been issued under the authority of the 9th section of an A ct of
the Governor-General in Council, called A ct X X I I of 1869,
which received the assent of the Governor-General on the 24th
September of that year.
I t is further contended that the clause of this A ct which
empowered the Lieutenant-G overnor to issue such pro<?laination
is H law made by the Governor-General in Council uud^r the

\1) I.L. R., 1 Calc., 431.

 TOL, Iir.] CALCUTTA SERIES. 127

’authorifcy of 24 & 25 Viet., c. 67; that by virtue of clause i 8T7

45j 3 & 4 W ill, IV j c. 85, a lavT so made is of the same EMnusss
force and effect m Indin, as any Act of Parliam ent, and that, BtiitAH «.!«»
consequently, neither this nor any other C ourt in India is com- ^’
petent to inquire into the validity of the A ct .or to question the
mode in which the legislature carries out its conclusions.
I will address myself first to the latter branch of this argu-
mentj aud for this purpose it is necessary to state what my opi­
nion is regarding the constitution and powers of the Indian
legislature.
This body is composed of the members of the Executive Go­
vernment, with the additiou of certain persons (not to be less
than six or more than |welve in number) nominated by the
Governor-General as members of the Council for the purpose
of making laws and regulations only. I t derives its powers
from Parliam eut aud from no other source (see Forsyth’s Cases
and Opinions on Constitutional Law, page 17; see also I
H arington’g Analysis, P a rt I, section 1), and those powers are
to be exercised in a particular manner and are compassed by
certain bounds.
The powers in question, sparingly granted at first, subjected,
originally, and down to 1834, to the necessity of registjration in
the Supreme Courts, and thereafter to the inapectioji and con­
trol of both Houses of Parliam ent, were gradually enlarged by
successive regulating Acts, until they reached their present
limits. They are now defined by tlwi Statute known as the
Indian Councils’ A ct, 1861. By that A ct the Council, when
constituted for legislative purposes, was declared absolutely in-'
capable of transacting any busiuess or entertaining* « |y motion
dther than the consideration and enactment, or the i(|itrodi|ct3on,
of measures of a legislative kind, except that it might amend the
rules for the conduct of its business which had been madef’Before
it came into existence. The legislative powers committed to the
5-overnor-General in Council are described, and the m trio tio u s
on them set forth, in the 22iid clause of the Statute.
I t was observed during the argument that there is a distinc­
tion «betweea the grant of powers which are absolute, except as
to,, matters expressly reserved, and that of powers extending
128 THE INDIAN LAW EEPORTS. [VOL. III.

1877 only u p to certain limits, not. beyond; it was coDteucled th a t'

Empuess the former of these was the description applicable to the powers
Buuah 4ND of the Indian legislature. , I t seems to me that the contrary is
^ -r-i‘ * th.e case for the fo llo w in g r reasons ;— The section which defines
and guards by various provisos the powers conferred for legis-
™F Burah^*'* lative purposes, is thus entitled, E xtent of the powers of tbe
Singhs Grovernor-Greneral in Council to make laws and regulations at
such meetings.” I t is no doubt one of the rules for construing
Statutes that no weight is to be allowed to -the marginal notesj
nor should. I refer to this one, but that the powers for like p u r­
poses entrusted to Govern^ors in Council are similarly defined
in ss. 42 and 43, and such defining clauses are afterw ards
referred to in s. 48 as provisions linjiiting the power of tbcj
Governors in Council.
The powers expressly conferred by s. 22 are—
“ Subject to the provisions herein contained to make laws and regu­
lations, for repealing, amending or altering any laws or regulations
whatever now in force, or hereafter to be in force, in Indiafe territories,
and to make laws and regulations for all persons, and for all Courts of
jtistice.whatever, and for all places and things whatever witMn tb©
said, territories, and for all servants of the Government of India within
the dominions of Princes or States in alliance with Her Majesty.”
This language appears to me to coutemplate the exertion and
eserciae of the legislative miud of the Cou'ncil in relation to
ti\e subject-matters indicated, and not to include the enabling
of any person or any body of .persons to repeal laws at th e ir
pleasure, or to make laws for Courts of justice or the like.
B u t before pursuing this topic fui'ther, I return to the ques­
tion of the competency of this Court to discuss the validity of the
A c t; and on this point I think that one argument may be derived
in favor of the opinion, which I hold from the very provision of
the A ct of Will. IV ., on wliich the ■advisers of the Ctow n
have placed &o.much reliance. I f we are to in te rp ret the 45th
section of that S tatute in the way contended for, and the words
are given the fullest sense of which they are susceptible, it
would be necessary to hold tiiat an Act of the Indian legisla­
ture' once passed, whether it observed or transgressed the **pro-
.visos, would be good-and valitl until repealed, for the words
VOL. in .] CALCUTTA SERIES. 129

of the seetioB are that all laws and re"u!ationa ma<le as afore~ 1877
said (which means, vide s, 44, ^ by the said GoveviiOF-Geiieral Emphhss
in Couucil made’) so loiig^as they shall remain uiu'epealetl shall b^hah aki>
be of tlie same force and effect/’ &C.
Now, ife is iiofc contended that a law and regulation made by Mlrran'op
the Governor-General i6 Council, forbidding the Secretary of
State from borrowing money iii Eugliiud for the service of India,
or altering the M utiny A ct, would be valid, or would have any
force or effect, and therefore some iiinitatiou m ust be put upon
the sweeping terms of 8. 45. B ut it seems manifest that Parlia­
ment must have had in mind the possibility and propriety of
such laws being q[uestioued on grounds apart from the breach
of any of the provisos contained iu s. 22.
F o r s. 24 expressly provides that—
“ no law or regulation made by the Governor-General in Council
. . . . . . shall be deemed invalid by reason only that it affects
the prerogative of the Crown
and s. 14 provides that—
*^n.0 ‘law or regulation made by the Governor-General ia Council, in
accordance with the provisions of this Act, shall be d-eemed invalid by
reason only that the proportion of non-offieial members hereby pro­
vided was not complete.”
Clearly, therefore, i n . these cases it was thought necessary to
protect the laws in question from being called in question, and
the place o f question must certainly have been the Courts iu
this country.
J'rom these premisesj therefore,—the limited character o f the
legislature, the oonspicuotis absence of sovereign or e r m
general powers, the language of the Statute in s. 4B, a o i
the proviaioii against challenge on specified grounds,—I deduce
the opinion th-at the Courts in India must have the power of
examining the Acts of the Indian legislature for the purpose
of inqtiiring whethei* they have been made in accordance with
the limited (though doubtless extremely large) powers conferred
by a Parliament, and also in the manner prescribed by S ta tu te ;
and further, that the effect and force attributed to such Acts
by 45 of 3 & 4 W ill. IV , c. 85, belong only to laws passed
ttnd'er ihose^ sitme conditions.
130 THE INDIA H LAW REPORTS. [VOL. IIL

1877 B u t it is further contended that if the C ourts have any such

EitPitEss power, it can only apply to the provisions touching forbidden
BuEAH AND subjects, or to those connected witlj th e enacting m achinery
which are contained in the S tatu te, and th a t it cannot extend
MArrTca^oF to criticising the mode in which the legislature thinks fit to
carry out its intentions. I f this were so, my answer to the
objection would be that, in the case before us, the legislature has^
expressed no intention at all, but has m erely given anticipative
sanctions to any course which the L ocal G overnm ent may a t
any time tliink fit to take in reference to a m atter as extensive
and im portant as any m atter can be. B u t I think this C o u rt ia
bound, where its jurisdiction is concerned, and more especially
in a m atter of criminal jurisdiction, to examine every objection,
to the validity of an A ct, not of course in a captious -sp irit,
remembering indeed th at it is under th e legislature^, b u t also
th a t both are the creatures of P arliam ent.
I have already said th a t the language of the 22nd clause of
the Indian Councils’ A ct appeared to me not to w arran t th e
handing over to any specified person th e power to repeal or to
make laws, and it is m anifest th at such is the effect of s, 9,
A ct X X I I of 1869. I t in fact enables an authority quite dis­
tin c t from the G overnm ent of India, in either its legislative
or its executive capacity, to abolish if it thinks fit all trib u n als
and all constituted authorities in a given tract of country, and
to do so a t any future tim e, and with reference to a condi­
tion of things not even approxim ately n^iderstood by th e
legislature. In point of fact, the discretion entrusted to the
L ieutenant-G overnor was not exercised till more than two years
after the passing of the A ct— was not exercised a t all by the
L ieutenant-G overnor in office when i t was passed, nor even was
th at L ieutenant-G overnor a member o f the Council which passed
i t ; for the A ct, as is well known, was passed at Sim la, w here,
by S tatute, the L ieutenant-G overnor of the P u n jab , and n o t
the L ieutenant-G overnor of B engal, sits in the In d ia n legis­
lature.
I t seems to me, therefore, clear th a t the mind of th e G overnor-
G eneral in Council was n o t, and could n o t, have been applied
at all, for legislative purposes, to the circum stances of the
VOL. III.] CALCUTTA SERIES. 131

Cossyah and Jynteeab H ills in or about O ctober, 1871, and th at

he did not by any law, a t th at or any other tim e, take away the
jurisdiction of the H i^h C o u rt. T he legislature beingf comi5e> Bith^h ak»
te n t to take aw ay by a law tins C ourt’s jurisdiction, m ight —
'X'K
also, no doubtj by a law declare that at the end of two years mrrRttop
siicb jurisdiction should cease ; b u t it made no such law, and OF BliUXH *
evidently had not made up its mind iipon the subject one way '*'”sikgu!*^
or the other.
B entham , in his Chrestom athia (Vol. V III, W orks, page 94,
N ote), defines a law as—
a d isc o u rs e .................... expressive of the m il of some person or
persons to whom, on the occasion and ia relation to the subject in
question, whether by babit or express engagement, the merabers of the
community to which, it is addressed are disposed to pay obedience f
and he gives a very sim ilar definition elsewhere (V ol. I l l ,
p. 215). A regulation can be hardly a less positive or deter­
m inate expression of will enforced by sanction. I f a law includes
a declaration th at a given person may do, or not do, a particular
th in g as he chooses, and if th e permissive enactment in s, 9^
A ct X X I I , is a law ful exercise of the legislative power con­
ferred on the Groveruor-General in Council, then it would be
equally within th a t power to enact th at it should be competent
to th e Lieutenant-Grovernor to abrogate and to re-introduce at
his pleasure the whole of th e existing law in every p art of the
L ow er Provinces. T h at, it will doubtless be said, would be a
lawful b u t an absurd and culpable stretch of legislative power j
and i t ought to be assumed th a t no such extravagance could
em anate from the G overnor-G eneral in C o u n cil; b u t in truth
th e case supposed is not b y many degrees removed .froin the
case before us, only th e character of such an A ct is palj)able
when applied to our own casOj which escapes observation when
i t refers to a distant and little known object. A t any rate, the
avgumen.t for the Crown is capable of boing pushed to the mo&fc
dangerous lengths ; and if the case appeared to me only doubt­
ful, I should thick it more reasonable to conclude th at P a rlia ­
m ent bad not intcTuled to allow a latitude which might, though
itjtresu m ab ly would not, be so ab u sed
B u t there are other reasons whicft, as I thiuk, point wit .i
132 the I n d ia n l a w r e p o r t s . [v o l . h i .

1877 equal pla.it!ness to the anme couclusioii. P arliam en t itself seemS

Ejipbess to have commented on 'this m atter, in some places indirectly,
V.
^uRAu AND in Others directly.
'■—* ‘ The 25th section of the Indian Councils’ A ct recites th a t it
MA.TTKR OF has been doubted whether the G o v ern m en t' of In d ia had the
power of m aking rules or laws for the N on-B egulation P rovinces
^SinqiT^ otherwise than by way of formal legislation; and it then proceeds
to validate all such rules or laws made prior to tlie passing o f
this ^ o t. Now, irrespectively of what seems to me the unm is­
takable provision in favour of past rules only, it occurs to me
to ask why, if the powers of the In d ian legislature have as
wide an extent as is claimed for them , resort was had to the
authority of P arliam ent in this m a tte r? W hy should not the
G overnor-G eneral in Council have passed an A ct legalising such
rules of previous date, and. perm itting them for the fu tu re ?
I t was, it seems to me, because its powers were considered
unequal to that strain, and because P arliam en t, in legalizing the
past, thought it not rig h t to sanction the practice in the fu tu re.
A somewhat similar m easure of those powers is presented by
the enactm ent of th e -S ta tu te 34 & 35 V iet., c. 34, which
ifc seems to me, in the view contended for on the p a rt of the
Crown, would have been at least in p art superfluous.
These declarations of the B ritish P arliam ent seem to me on
the one hand to indicate a distinct view as to the powers of the
Indian legislature, and on the other an equally d istin ct deter**
mination th a t every relaxing of the strict ru le as to the form
of legislation should em anate from itself. In short, it seems
to be clear th at, after the passing of the Indian C ouncils’ A ct
down to 1870, all legislation for every psirt of B ritish In d ia
was required to be by laws passed , at a m eeting for m aking
laws and regulations. T h a t undoubtedly was, and probably
continues to be, the opinion o f Sir H enry M aine, for it is
plainly so stated in a paper of his w ritten in 1868, which he has
published as an appendix to his work on V illage Communities*.
A nd on this point I think m yself justified in referrin g to the
despatch o f Sir Charles W ood in transm itting a copy o f the
Indian Councils’ A ct L ord C anning’s, G overnm ent, Kirxl
aw are th at there is h ig l| authority ugaiiist such refere|i(jes,
VOL. IIL] CALCTTTTA SERIES. 133'

•and also of the danger in some instances of m aking tlieiiij I8IT

b u t the despatch is in, this instance to be Esed against the Espmss
CrowHj whose M inister S ir Charles Wood then w as; and I Bcrau akd-
believe there is no reasoa w hatever for supposing th a t the
Secretary of S tate was not on th a t occasion a perfectly faithful M,vr™uF
interpreter of the m eaning of P arliam ent, or th a t the decision '“ "i-
of Parliam ent in this p articu lar was a t all other than what the
M inistry intended it to be. S ir C. W ood says in paragraph 27
of the despatch (w ritten in A u g u st, 1861)— You will observe,
however, that henceforth legislative measures affecting any of
the territories, regulation or nou-regulationj under the domi­
nion of H e r M ajesty at the date of the passing of the A ct,
m ust be passed either by the Council of the Grovernor-General,
or by th a t of the Governm ent to which such te rrito ries‘may be
subject.” I t would be, I th in k ,a very imperfect and unreal com*
pliance with th at injunction, if the G overnor-G eneral in Council
contented himself with a legislative declaration th at the local
E xecutive might in a given locality do anything th a t pleased it.
B u t fu rth er, as in reg ard to some of these provinces a more
convenient and flexible procedure was found to be requisite, and
aa the rem edy was in, the hands of P arliam ent, a further A ct
was passed in 1870 (33 Y ict., c. 3), wherein it was declared
to be expedient th at provision should be made to enable the
G overnor-G eneral of In d ia in Council to m ake regulations for
th e peace and good governm ent of certain territories in In d ia
otherwise than at meetings for the purpose of m aking laws and
reg u latio n s; and provision was made accordingly* I t cannot
have been intended th a t there should be in existenee, sir^iilta- '
neouslyj two methods o f changing the law for such territorieSj.
and I should, therefore, consider that for this reason alone
the course taken under the A ct of 1869, about a year and n
h a lf after th e passing o f the S tatute ju st mentioned, was b a d ;
b u t I also think it in plain contravention of the Indian Councils’
A ct,
As to th e nature and extent of the legislative powers intended
to be conferred on the In d ian G overnm ent (it is really that) by
the Ikidiau Councils’ A ct, any one who ^desires to observe how
diiferently P arliam ent works when it giv£S complete authoiifey.
Ip
134 THE INDIAN LAW REPORTS. [VOL. III.

3877 resetting only its own supreme and paramount i-ights, need only
Empress compare that Act with the Statute 30 Viet., c. 3, coBstitut-
■RnnA« iiig the Domimon of Canada with its supexiox and subordinate
B ook S i n s h . , . ■> ,
— legislatures.
argument^ however, which was much relied oDj I must
’"'w hlt™h™ leave unnoticed, although I do not deal very fully with it.
Oar attention was drawn to a great number of instances in
which, beginning from 1844-45, and coming down to the
present time, a power had been exercised more or less analogous
to that used in the present instance ; and with reference to
these enactments it was contended, fir at, that a long course of
legislation of the permissive or delegatory kind must be taken
to have established the practice and therefore the authority of
that course; and secondly^ th at inasmuch as many of such
enactments jvere anterior to the In d ian Councils’ Act, P arlia­
ment must be taken to have noticed the course of practice, and
by passing it over in silence to have sanctioned what it
observed. As to this it seems to me in the first place th at
the great majority of the Acts named iu the list handed up to us
differ so widely from the present one as to be of little value
for the purpose,of the argument. I t often happens, and must
often happen, that the usurpation of a power passes unnoticed,
or at least unchallenged when the occasion is insignificant, or
when the attendant circumstances appear to justify or to excuse
the encroachment. To leave to an inferior or a different
authority the provision of means for carrying out a law, or to
entrust to its discretion the choice of a precise date for putting
it in force, appears to me not incompatible with the retention
by the legislature in its own hands of the principal decision
as to the policy of the law ; and many of the Acts referred to
go no further than this trifling delegation. Speaking without
any claim to precision, because I have not thought myself bound
to go through the list, I venture to. affirm that not more than
two or three of these instances can be at all classed in import­
ance, and in departure, as I view it, from the stfitutory powers
of the G-overnment of India to legislate, with the present one.
And as the questioning of such assumptions of p o '^ rs ia
.m atter of accident uQ,t originating with the Courts, no argu-
VOL. III.] CALCUTTA SBRIES. 135

ment can be founded on tlieii* having liitliei'to passed mmoticed istt

by the Judges. W ith P arliam eat of course the case is wi<lely Emi’kkss
diiferent. The sovereign legislature intervenes when and as it Bckaii as»
pleases of its own motion or impelled thereto from o utside; °
and if any consent could be iaferred from the silence of F a r-
liament, the Courts would be coucluded. B u t on such a topic
as this I do not thiuk that we are bound to presume the know-
ledge of Parliam ent, or th at it would be safe to draw so import­
ant an inference from its silence. I t cannot be said that the
practice under consideration has ever been free from doubts
as to its legality. Judicial doubts on the subject were expressed
in the case of Biddle v. Tariney Churn, Banerjee (1 )> to the
decision in which case, so far as it went, we are bound to pay
the highest respect; and we may feel tolerably certain that
if the m atter had attracted the attention of Purliam ent, it
would have been dealt with in a manner similai: to that adopted
in the 26 th section of the Indian Councils’ Aet, th at is to say,
the doubts would have been recited and the practice legalized
either forftlie past or for all time.
I am, unable, therefore, to assume even that Parliam ent was
cognizant of, still less th a t it intended by silence to approves
the mode of legislation referred to.
■ Upon these considerations it seems to me thafc the notifica­
tion of the liieuteuant-G 'overaor issued under authority of
A ct X X I I of 1869, s. 9, could not have the effect of putting
au end to the jurisdiction of the H igh Court, I talse it as
clear that this Court had jurisdiction in the Cossyah and;
Jynteeah Hills, because th a t was a jurisdiction vested itt the
Court of Nizamut A daw lut a t the time of its abolition; and
the result is that, wie jitdice, such jurisdictiou has not beea
validly taken away, but still exists.
I wish now to say th at when I first committed to writing the
views which I held upon this very important q_uestiou, I found
myself to have arrived, by a nearly similar train of reasouiag,
at the same opinion which my brofchei* M arkby has expressed
with a fullness of treatoaeut and an amplitude o f research to

( 1) 1 Tay. & Bell, 390»

136 THE INDIAN LAW REPOETS. [VOL. IIL

'yfhich I do not pretend. I m ight have adopted^ perhaps, e v e ry

Empuess of that exhaustive judgm ent, b u t I thought it on the
Book^Singh whole more respectful to the Government, as well as more
isixHiB satisfactory to myself, th a t I should indicate, however slightly,
Matter oii> fijn crrounds of mv own independent conclusion.
T H ic P
k t it t o jt ®
OF Bobah
aistiH.'' G-AB.TH, C. J . — The im portant questions which we have to
decide in this case have now been m aturely and anxiously con­
sidered by this C o u rt; and although I regret for some reasons
the decision at which the m ajority of the C ourt have arrived,
it is satisfactory to know th a t the points have been argued as
fully as they could have been ; and th at our attention has
been called, as I believe it has, to all the available m aterials,
which could guide our minds to a ju st conclusion.
The case has been twice argued,—first by the L egal Bemem-
brancer on behalf of the G overnm ent of B e n g al; and again,
at the instance of the G overnm ent of India, by the A dvocate-
G eneral and the Standing Counsel M r. K ennedy for the Crown,
and by M r, Phillips on. behalf of th e prisoners, whose services
the^Government have very properly retained for th a t purpose.
^Upon the first point which we have to determine, there is
little or no difference of opinion. W e are all agreed that the
G overnor-General in Cou.ncil could, in the exercise of hia
legislative powers, have removed the district of the Cossyah
and Jy n teeah H ills from the jurisdiction of the H igh C ourt.
The only question is, whether by the means which they have
adopted, they have effectually carried out that object.
The jurisdiction o f the C ourt has certainly not in this
instance been taken away by any direct action of the legislative
body. A ct X X I I of 1869 did not of itself even profess to
take away th at jurisdiction. I t can only be said to have done
so indirecthji by conferx'ing upon the L ieutenant-G overnor of
Bengal what was undoubtedly a very large discretionary power. ,
H e was by that A ct invested with authority to remove the
district in question from the jurisdiction of the H igh C ourt,
and to abolish entirely a t his own discretion and at liis own
time the laws and the system of judicature which prevf^iled
tHere. H e had also the power of introducing new laws^ and of
VOL. III.] CALCUTTA SERIES. I

reconstituting a judicial system in accordance with bis own irtt

"views; or he might, if he had so pleased, have left the district EaPEEsa
entirely destitute of any laws, or any judicial system what- Bi'k.ik anb
ever.
I t may indeed be open to grave doubt, whether, looking
only to the Statutes from, which the legislature of India derive k™
their powers, it was contemplated by Parliam ent that they
should exercise those powers by conferring on any other
person, or body of person, so large a discretion.
B ut the question which we have to decide, is, not whether
in this instance the legislature have exercised their powers
wisely, or in such a way as Parliam ent intended that t h e y
should exercised th e m ; but—-
1 s t —W hether they had the power to take away the juris­
diction of the Court by the means which they adopted ? and
2ndly.—W hether that is a question, which the Courts of
this country have a right to determine ?
I t w in be. convenient to deal first with the last of these
points.
I t was argued at the bar, th at the power of making laws and
regulations which was given to the legislature of this country
by the Councils’ A ct, was as extensive a power (subject to
the restrictions contained in s. 22), as was poBsessed by the
imperial legislature; and th a t any enactment which they were
pleased to pass under the name of a law, could be no more
quertt-ioufid by the Courts than an A ct of Parliament. B u t it
seems to me, that a great and dangerous fallacy underlies
this argum ent; because there m a j be many enactments which
the Indian legislature may pass, and honestly believe that
they have a right to pass, b u t which may, nevertheless, be
ultra viresg and of no force at all as laws. Suppose, for
example, that an A ct were papsed, which in point of fact
infringed one of the restrictions in a. 22, but which the
legislature 6o?ia Jidc believed was no infringem ent: would
the belief of the legislature that they were justified in
passing such an Act prohibit Courts of justice from inquiring
infft the validity of it ? Or to take another instance uncon­
nected with the restrictions in s. 22 ;• suppose the legislature
138 THE INDIAN LAW REPORTS. [VOL. III.

1877 xvere to pass an Act, by wliicli they authorized certain police

Empisess officers to arrest a Frencli subject in Chanderaagore, and upou
i?nu.\H AND the man being arrested in C hand^rnagore, and brought in
” — * custody to Calcutta, he were to institute a suit here for illegal
MATI'KIl OF imprisonment,—would the Courts here have no jurisdiction to
enquire into the legality of the imprisonment, and would the
^SiI’gh!^ prisoner be utterly without remedy, simply because the Gov-
eriimeut had passed the A ct, and believed th a t they had a
rig h t to pass it as a law ? These instances are of course very
clear; but in otiiers considerable doubt m ight arise as to
■whether an A ct passed by the legislature was or was not within
their pow ers; and in all such cases, unless Courts of law had
jurisdiction to determine this q^uestion, the Indian public would
have no means of redress, and the G overnm ent here would be
■virtually autocratic.
I t may be said, no doubt, th a t the rig h t which H e r M ajesty
in Council possesses of putting a veto on any A ct which is
passed by the legislature, affords some security against any
excess of their powej.’S; but it m ust be borne in mind that the
scrutiny to w.iuch Indian measures are subjected by H e r
M ajesty in Council, is not so much a legal security, for the
purpose of ascertaining whether the A ct is or is not strictly
within the powers of the legislature, a,s a scrutiny of policy
and prudence to determine whether the A ct is in accordance
with the views of the Home Government, and a wise and
prudent measure having regard to the inj;erests of the Em pire.
I am, therefore, of opinion that it is the province and duty of
this Court to determine whether by the A ct of 1869, and the
notification in the Oazette^ which was made in accordance with
its provisions, the jurisdiction of this C ourt has been abolished ;
and that it is not because th at A ct has been passed by the
legislature as a law that we are disabled from inquiring into
its validity.
No doubt, as soon as th e fact is once established, th a t an
A ct of the legislature which has been duly passed is w ithin
Ihe scopc ol their powers, the C ourt have no rig h t to inquire
into the propriety or wisdom of the law which is cstahlished®by
that A c t; but it is not w e ry A ct which the legislature m ay
VOL, ni.] CALCUTTA SERIES.

pass which can legally be considered as a law. Thus to bring 1877

the argument nearer home to our present purpose, suppose JiJimBaa
the legislature were to pass au Act, transferring the whole of Buuau ash
their legislative powers over the Indian Em pire to the G-ov- “— T
ernor-General. T h at, in my opinion, would not be a law at
all within the meaning of the Statute. I t would simply be ’^‘of
an abdication of th eir legislative powers in favour of the
Governor-General, directly a t variance with the language and
plain meaning of the Councils’ A c t ; and I should say the same
of a similar transfer of their powers with regard to any portion
of the Indian Em pire.
Now I consider th a t the question in the present case is,
whether that portion of the A ct of 1869 which relates to the
Cossyah Hills, is a law properly so called, or a mere transfer of
the powers oY the legislature to the Lieutenant-G overnor of
Bengal.
I quite agree with my learned brothers, t h a t th is is a ques­
tion of construction, and one to be determined not only by
reference to the Councils’ A ct itself, but to other A cts of the
Irnperinl Legislaturo wliich may be found to have a bearing upon
the-Bubject, and to other important considerations, to which I
s h a ll p r e s e n t ly refer. -■ ^
I f the A ct of 1869 stood alone, as the only instance of its
class, and we had only to determine whether the transfer of
power to the Lieutenant-G overnor which is thereby made was
such a law as the Councils’ A ct authorized, I confess I should
feel more doubt upon the question. But having regard to the
course and character of the legislation which has been going on
in this country, and in England with reference to this (country,
for the last forty years, it appears to me that the Imperial Legis­
lature have themselves p u t a construction upon the Councils’
A ct, whicl#;(so long as it is not inconsistent with (lie langiuigo
of the A ct itself) we are bound in duty to adopt, however
much it may be opposed to our first impressions; and I quite
think also, that every reasonable intendment, which can legally
be made by this C ourt in favor of the validity of the acts of
legislature, should undoubtedly be made.
Now, upon looking back through the Acts of Council since
140 THE IjSTDIAISr LAW REPORTS. [VOL. IIL

1877 tliG year 1833, when the E a s t In d ia Com pany’s C h arter A ct

Emfhess passed, it seems to me impossible to resist the conclusion
BuiiAH Asi> th a t the principle and the course of action which has constantly
B o o k S in q ii, , . , „ ^ i
— been pursued by the legislature of this country, is , precisely
MAT'ricr. OP th at which is now called in question in th e Aofc of 1869.
By the A ct of 1833 the legislative powers which w ere th en
^Singh!*^ conferred upon the G overnor-G eneral in Council were in the
saine language, and (for the purposes of th e present case) to
the same effect, as those given by the Councils’ A ct in 1861;
and from the time when th a t A ct passed, the G overnor-G eneral
in Council has constantly been in the habit of exercising those
powers through the instrum entality of high officials and public
bodies, in whom a large discretion has been vested for th at
purpose ; and when we consider the ex ten t and variety of the-
business of th e legislature, it ia difficult to see how w ithout such
machinery they could effectually discharge th e ir functions.
I t would seem almost impossible in a country like B ritish
In d ia, so vast in extent, so various in its population, its laws,
and its customs, th at the legislature could perform its m ultifari­
ous duties satisfactorily, w ithout entrusting to the executive
GovermHent, to the G overnors of provinces, or to other high
officials, and representative bodies, a considerable share in the
working out of their manifold and com prehensive m easures ; and
it would also seem impossible, th a t they should do this effectu­
ally without vesting in those high personages and bodies a large
am ount of discretionary power.
M oreover, it m ust be borne in mind, th a t w hatever im p o rtan t
tru sts are thus created by the legislature, they are by no means
absolute or irrevocable. H e r M ajesty in Council can p u t a
veto upon any A ct of the G overnor-G eneral in Council which
her a*dvisers may not approve, and the G overnm ent h ere are
always in a position to see how the powers which- th ey have
conferred are being exercised, and if they are exercised in ju d i­
ciously, or otherwise than in accordance w ith their in ten tio n s,
or if, having been cxercised, the resu lt is iu any degree iucotivc-
nient, they can always by another A ct recall tlieir powers, or
rectify the inconvenience. I^Tow, it will be suflaoient for
present purpose that I s h e f e w only of the A cts of
VOL. III.] CALCUTTA SERIES.

Council which were passed b y the legislature, between 1833, the »77
year of the E ast Indian Charter, and the passing of the Couiieils’ Emi'hes^
A ct in the year 1861 ; and I would refer ia the first place to B i t r All A X n

the Procedure Codes of 1859 and 1861 as being rem arkable

instances of the course of action to -which I have alluded.
The Civil Procedure Code of 1859, which effected a great;
change in the law, was only applied in the first instance to the
Eegulation Provinces of Bengal, Madras, and B om bay; and
under the pi'ovisions of s. 383, it was not to take effect in
any other ps^rts of India, nntil it should be extended thereto by
the Governor-Greneral in Council, or by the I/ocal G-'overnment
of any ifon-Reguiatioii territory. Thus the Lientenant-Grov-
ernors of Non-BegnUtion Provinces were empowered at their
own discretion, and at their own time, to extend, each to his
own territory, the provisions of a Statute, which not only intro­
duced an entirely new procedure into the Civil Courts, but
contained enactments which affected very m aterially the rights,
liberties, and property of the su b ject; and by A ct X X I I I of
1861 (which was passed in the same year as the Councils’ Act)
the Local Grovernments of Non-Regulation Provinces were
invested with a much larger discretion; becan.se they were by
th at A ct authorized to introduce the same Code into th eir res­
pective provinces, subject to such restrictionsf limitations^ and
pravisos as they might think proper.
Then again, by A c t-X X V of 1861, the Criminal Procedure
Code, a similar power was given to certain L,ocal Governments
of introducing at their own option, the provisions of that Cod©
into their respective territories ; and this A ct not only intro­
duced new modes of procedure, b u t contained many enactments
ivhich made a very material change in the criminal law.
It^ seems- to me irapo^|ible to deny that these Acts did in
fact confer upon the ijocal Governments of Jfon-Regulation,
Provinces precisely the same kind of power, although ^different
in d e g r e e , as by the Act of 1869 was,vested in the L ieutenant-
^ovecnor of Bengal; they placed entirely in the-hands of the
Local Government of those Provinces the right of abolishing
a t th®ir pleasure the old system of procedure, and of infcrodnc-
in^ a new svstem. which very m a t e i ^ y changed the law, and
19
(I4i2 THE INDIAN LAW EEPOETS. [VOL. III.

1877 affected the rights and liberties of the inhabitants o f those

Empbkss Provinces. A nd the Civil P rocedure Code of 1861 w ent
Bukah AH and further^ because it gave the L ocal Governm ents a power to alter
B ook S i n g h .
or modify the Code in any way they m ight think proper, and
I s THE
M ATTEH OF so to introduce a different law into th eir respective P roviaces
OT from th at which was in force in th e R egulation Provinces.
A nd there were many other A cts passed during the period
which I have defined, in which the legislature proceeded upon
the same principle, although the powers conferred by those A cts
mio-ht
o not have been so extensive as in the two instances which
I have ju st named. T hus, A c t I I of 1835 gave the B engal
G overnm eut full power to issue any instructions which it
m ight think proper for the control and guidance of th e C ourts
of Assam and Cachar. A c t V I of 1835 contained sim ilar
provisions w ith regard to th e C ourts in the Cossyah H ills.
A c t X X I of 1845 authorised the G overnor-G eneral in his
executive capacity to place any of certain specified territo ries
under a totally different system of law from th a t to which th ey
w ere then subject. A ct I X of 1846 empowered the M adras
G overnm ent to make laws for the regulation of the M adras
H arbour. A c t X V I of 1846 conferred upon certain Commis­
sioners the rig h t of m aking bye-laws for the town of C alcutta.
A ct X I of 1848 gave the same Commissioners still larg er
powers of a similar kind. A ct I o f 1852 empowered the
Bom bay G overnm ent to m ake laws for the reg u latio n of the
Bom bay H arbour. A ct X X I I of 1860 affords a m ore strik in g
illustration of the same principle. B y th a t A ct th e C hittagong
H ill T racts were entirely excluded from th e ' jurisdiction of
the ordinary Courts, both civil and crim inal, and from the
control of the revenue laws and officers; and th e y w ere placed
entirely in the hands of the L ieutenant-G overnor of B en g al,
“who was to appoint w hat C ourts and officers he tho u g h t proper,
and give w hat instructions he pleased for the governance o f
such Courts and officers. A nd again. A ct X I V of 1861 con­
tained sim ila r, provisions w ith reg ard to the K ohilcund H ill
T ra c ts : placing the adm inistration of justice and th e m anage­
m ent of the revenue in th e hands of the L ieu ten an t-G o v ^ru o r
of .the N o rth -W ^ t P ro ^ ^ g es.
 TOL. III.] CALGtTTTA SERIES.

IN ow all these A cts amouut in one sense to a transfer of irtt

legislative power^ because in each of them the legislature Empisesm
entrusts to some other person or body of persons the m aking of Bckah aso
laws and regulations which it might have made itself. Thus,
instead of making laws for the regulation of the H arbours of mattbb'of
M adras and Bombay, it has transferred the power of making
those laws to the Local Grovernmeuts. Instead of introducino* Bouk
toe Procedure Codes iafco the I^oa-R egnlatioa Provinces^ it
has left the introduction of those Codes to the discretion of
the Local Grovernments. Instead of organizing a system of
ju d icatu re and revenue laws for out-Iyiiig districts such as
Assam and the Chittagong and liohilcund H ill Tracts, it has
transferred to the Local Grovernment the duty of m aking laws
for these districts.
The difference between the transfer of authority in all these
cases and in that which we are now called upon to decide,
appears to me one of degree only, not of p rin cip le; and if
Couifts of justice had to determine in each of such cases how
far the legislature m ight or m ight not go in the creation of
im portant trusts, and in conferring powers upon high
officials, which they might have exercised themselves, the task
would not only be one of extreme difficulty, but m ust lead in
m y opinion to most inconvenient results.
H as then the legislature o f'th is country been proceeding all
these years upon a principle unwarranted by law ? H as it been
abdicating its proper functions and transferring powers which
■it had no right to transfer ? T he answer to this question will be
found in the Councils’ A ct of 1861, T hat A ct has put a con­
struction upon the meaning of the Indian C harter of 1833
which it seems to me almost impossible to misunderstand.
It. cannot seriously b^ supposed that the Im perial Parliament^
when it watv^econstituting and strengthening the Legislati'^e
Council in 1861, conferring upon it fresh powers, and subject-
ingifeto restrictions w h icf-h ad not been previously imposed,
could have been in ignorance of the mode in which the powers
of legislation, which had existed for nearly th irty years, had
'bten-'exercised by the G-overnor-G-eneral in Council. T he A cts
of th at legislature had been regularly transm itted to England
 THE m D IA N LA.W EEPORTS. [VOL. III.

1877 fo r the approval of H er M ajesty in Council. T hey w ere w ell

E m prkss known to the authorities at the In d ia H ouse. Tliey had been
V,
Bduah AH and considered by H e r M ajesty’s advisers ; and many of them , m ore
B o o k S r s G it.
especially the Procedure Codes, had been carefully discussed
Is THK
MATTKfi OF and considered both in E n g la n d and in this country. T h e A c t
THK pK.'rrnoN of 1859 was prepared and passed under the auspices of S ir
Barnes Peacock ; and the A cts of 1861 were also passed at the
time when he was not only C hief J u s tic e of the H ig h C o u rt,
b u t also a M em ber of Council. ,
I t cannot be supposed therefore, th a t if the provisioiis of those
A cts had been contrary to law or even questionable^ th ey w ould
have escaped the vigilance of S ir B arnes Peacock, whose keen
perceptions and long experience both as a legislator and as a
judge, rendered him peculiarly capable of d ^ ijf e i » g - ^ y such,
illegality. N or, on the other hand, can it be supposed^ t^ a t the
Im perial P arliam ent would have renew ed in the Councilk’ A ct
of 1861 the legislative powers which the G overnor-G eneral in
Council had so long exercised, if th ey had disapproved oi^ the
course of action which the legislature had been pursmng*
T he fact th a t with the knowledge of the circumstances
they m ust be assumed to have possessed, P arliam ent did in th e
Councils’ A ct renew the powers which were given by the A ct
of 1833, appears to me to am ount to a statu to ry acknowledg­
m ent th a t the course of action which had been pursued by the
legislature in the exercise of those powers was one which the
A c t had authorized.
As regards the case of B id d le v. T ariney G hurn JBanerjee (1)»
which has been relied upon by M r. J u s tic e M ark b y , I need-
only say th a t although I en tertain the g reatest respect for the
learned Ju d g es who took p art in th a t decision, I cannot h eir
considering th a t the view which they took in th at case of the
powers ot the legislature has been since v irtu ally disregarded
by the legislature itself, and overruled by the Im perial P a riia -
ment by the construction which the*^ have put upon the A c'
of 1833. I believe th a t at the time when th a t case "Was deoideds
i t was generally supposed th a t the power of the legislature tc

( 1 ) 1 T ay. & Bell, 390,

VOL. III.] OALOnTTA SERIES. 145

b-ansfer its authori, ‘"5"

law to the full exte ^^^ deoision, it would follow that a g reat Emprkss
many Acts of the' which have been acted upon as
iaws for years pai"‘’ altogether
'
illeojal. , ^lATTUn OF
I am, ti^erefo *'®’ ^ X I I of 1869, the SSSr
p r in c ip le o f w M ^ '* “ f ‘ 1>« A c t a
which I have a law which the legislature were
justified in pas8’“ »" which did, in conjunction with the noti­
fication which rnade under it, effectually remove the districts
in question jurisdiction of the H igh C o u rt B u t as
the m ajority Court are of a contrary opinion, the appeal
made by th'® P’^isoiiera will be entertained, and the records will
be sent fo’^'"'
I t is desired th at this adverse judgm ent, and th e
vast of the question which it involves, may induce
the of India to take this case, if it is open to them
*:n appeal to the P riv y Council. '

Before S ir Ricfiard Garth, K t^ C h ief Jttsiics^ 31?'. Justice Jackson^ M r. J m -

iioe Maqihtrson^ M r. Justice Markby, and M r. Justice A irtdie,

C tO B IF D C H U N D E R K O D H D O O an d o th e e s ( P t.a in t» f s ) v . T A E U C K 1877
CHUNDEU BOSE and otheks (Pepehdants).* Sept, 12.

Mes~Judicata-~ A ct V l l t o f 1859, s. %—Suit fo r Rent.

The piaintiflrs bvoufjlit tins suit to establish, as a^ainsfc tlie dcFcndfints, thciix*
title rxj iiiiid in die oecnpatinn of a tenant. .In a proviisus suit
tuted by one of tlio, pi'i.>,«eut defbiKlaiit-s iii^ninst the tenant for rent, one o f the
present piaintiffis (representing the i%hfc now ciaiiiiyd by all dT them) inter-
tened as a defendant, on the ground ilitit Iso was tin; ])cr.-.nn «ntiLltj<l to the
‘rent, and failed to estabUgli .hisi^’aim, II^U^ Ailluwing tiie FiiU Bench ease

. Special Appeal, No. 794 of 1876, against a decree of Baboo Srinath Roy-j
Subordinate Judge of Zilla Furreedpore, dated the 14th of February, ISTG,
ahinni'ag ii. decree of Baboo Unnoda Hath Mozoomdiir, Olficiatuig'Munsif of
Biiiuiga, dated the fifch July, .1875,
20